       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    United States v. Wilson                    No. 02-5290
    ELECTRONIC CITATION: 2003 FED App. 0356P (6th Cir.)
                File Name: 03a0356p.06                    OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR
                                                          THE WESTERN DISTRICT OF TENNESSEE, Memphis,
                                                          Tennessee, for Appellant. R. Leigh Grinalds, ASSISTANT
UNITED STATES COURT OF APPEALS                            UNITED STATES ATTORNEY, Jackson, Tennessee, for
                                                          Appellee.
              FOR THE SIXTH CIRCUIT
                _________________                                            _________________

 UNITED STATES OF AMERICA , X                                                    OPINION
             Plaintiff-Appellee, -                                           _________________
                                  -
                                  -   No. 02-5290            MERRITT, Circuit Judge. Appellant Janalee Wilson, a
            v.                    -                       former emergency room nurse, injected her husband with
                                   >                      insulin on three separate occasions in an effort to cause his
                                  ,                       death so that she could collect the proceeds from several life
 JANALEE WILSON,                  -
         Defendant-Appellant. -                           insurance policies. On July 29, 1996, her husband died as a
                                                          result of severe hypoglycemia brought on by an injection of
                                 N                        insulin. Soon thereafter, she submitted claims to various
       Appeal from the United States District Court       insurers and succeeded in collecting nearly $300,000.00 in
    for the Western District of Tennessee at Jackson.     life insurance proceeds.
   No. 00-10065—James D. Todd, Chief District Judge.
                                                            On September 19, 2001, a federal jury convicted Janalee
              Argued: September 11, 2003                  Wilson of three counts of mail fraud in violation of 18 U.S.C.
                                                          § 1341, eight counts of wire fraud in violation of 18 U.S.C.
          Decided and Filed: October 6, 2003              § 1343, seven counts of money laundering in violation of 18
                                                          U.S.C. § 1957, and returned a special verdict of liability on
  Before: MERRITT, MOORE, and GILMAN, Circuit             one count of criminal forfeiture pursuant to 18 U.S.C. § 982.
                    Judges.                               At sentencing, the district court granted the government’s
                                                          motion for an upward departure based on the fact that a death
                  _________________                       resulted from her fraudulent scheme, increasing her base
                                                          offense level from 23 to 33, the level corresponding to second
                       COUNSEL                            degree murder under the Guidelines. The sentencing judge
                                                          then added a two-level enhancement because Wilson used her
ARGUED: Stephen B. Shankman, OFFICE OF THE                special skill as a nurse to perpetrate the fraud. Using a
FEDERAL PUBLIC DEFENDER FOR THE WESTERN                   combination of concurrent and consecutive sentences on the
DISTRICT OF TENNESSEE, Memphis, Tennessee, for            eighteen counts of conviction, the district court sentenced
Appellant. R. Leigh Grinalds, ASSISTANT UNITED            Wilson to 210 months in prison, the maximum term allowed
STATES ATTORNEY, Jackson, Tennessee, for Appellee.        for offense level 35 and a criminal history category of I.
ON BRIEF: Stephen B. Shankman, M. Dianne Smothers,

                            1
No. 02-5290                      United States v. Wilson      3    4     United States v. Wilson                       No. 02-5290

   Wilson appeals, arguing in her brief that (1) the evidence        On June 12, 1996, Mr. Wilson was admitted to Methodist
was insufficient as a matter of law to establish beyond a          Hospital with extremely low blood sugar. Records indicate
reasonable doubt that she caused her husband’s death as part       that Janalee Wilson told a nurse and other emergency workers
of a scheme to defraud; (2) the district court erred by            that she had given her husband a shot of Toradal (a
enhancing her sentence based on her “special skill” as a nurse     prescription pain medication) at home because family
under § 3B1.3 of the Guidelines; and (3) the district court        members were sick with nausea and vomiting. He recovered
erred in granting an upward departure of ten levels based on       from the incident. Medical tests later revealed that the high
the evidence and the jury’s finding that she caused her            level of insulin in Mr. Wilson’s body came from an injectable
husband’s death as part of her scheme to defraud. Since the        source. Janalee Wilson was a Type II diabetic, requiring
briefs were filed in this case, a panel of this Court issued its   insulin to control her blood sugar, and had access to insulin
decision in United States v. Mayle, 334 F.3d 552 (6th Cir.         and needles at the hospital.
2003), upholding a district court’s granting of a 23-level
upward departure under U.S.S.G. § 5K1.2 based on the                 On July 10, 1996, Mr.Wilson was again admitted to the
district judge’s finding by a preponderance of the evidence        emergency room with low blood sugar. The defendant told
that the defendant murdered his victim in order to facilitate a    hospital workers that she had given her husband a shot of
mail fraud offense. At oral argument in this case, Federal         Phenergan (a prescription nausea medication) the night
Public Defender Stephen B. Shankman advised that, in light         before. Tests once again indicated a high insulin level. Mr.
of our decision in Mayle, Wilson chose to discuss only the         Wilson was referred to an endocrinologist, who concluded
point regarding the special skill enhancement under § 3B1.3.       that Mr. Wilson’s glandular system functioned normally.
We find no error in the findings of the court below on any of
the issues raised, and we address here only the point discussed      On July 28, 1996, Janalee Wilson was at work and called a
at oral argument.                                                  neighbor at around 9 P.M. and asked him to check on her
                                                                   husband. She told the neighbor that when she left for work
   Section 3B1.3 provides that the district court may increase     earlier that evening, her husband was sick and she was
the offense level by two if “the defendant . . . used a special    worried about him. She later told others that she had checked
skill, in a manner that significantly facilitated the commission   his blood sugar before she left for work. The neighbor found
or concealment of the offense.” U.S.S.G. § 3B1.3. A                Mr. Wilson unconscious in a chair. On the direction of
“special skill” is defined as “a skill not possessed by members    Janalee Wilson, paramedics took Mr. Wilson to a different
of the general public and usually requiring substantial            hospital from the one he had been taken to for the previous
education, training, or licensing.” Id. § 3B1.3 cmt. 2. Janalee    episode. Once again, he suffered from dangerously low blood
Wilson was a licensed practical nurse working in an                sugar. He stayed only a few hours, and the doctor released
emergency room. In order for the enhancement to apply, her         him to the care of Janalee Wilson based on his understanding
skills as a licensed practical nurse must have made it             of her training and expertise. (J.A. at 152-53.)
“significantly ‘easier’ for [her] to commit . . . the crime.”
United States v. Lewis, 156 F.3d 656, 659 (6th Cir. 1998)            The next morning, Mr. Wilson was taken by paramedics to
(internal quotation marks omitted). We review a district           the emergency room with low blood sugar. Mr. Wilson later
court’s factual finding regarding the application of § 3B1.3       died as a result of a prolonged episode of hypoglycemia
for clear error. Id. at 658.                                       caused by an injection of insulin. At trial, the district judge
                                                                   specifically instructed the jury that, in order to convict Janalee
No. 02-5290                       United States v. Wilson         5   6     United States v. Wilson                      No. 02-5290

Wilson of mail fraud, it must first find that she caused her          injectable pain medications only to terminal cancer patients,
husband’s death by injecting him with insulin.                        but that he “certainly could have” made an exception with
                                                                      Janalee Wilson because she was a nurse. (See J.A. at 55.) As
   At sentencing, the district court ruled that “the defendant        noted above, another physician witness testified that he felt
did use a special skill, that of being a nurse. She injected the      comfortable releasing Mr. Wilson to the care of Janalee
defendant with Toradol and Phenergan, and she said she did,           Wilson on the night of July 28, 2003 because of her special
and she told that to the doctors in an effort to cover up the fact    training as a nurse and expertise. In short, her special skill as
that she had, in fact, injected him with insulin. She was using       a nurse made it significantly ‘easier’ for [her] to commit . . .
a special skill.” (J.A. at 356.)                                      the crime.” United States v. Lewis, 156 F.3d at 659
                                                                      (affirming the two level enhancement for use of a special skill
  Title 18, § 3742(e) provides for the standard of appellate          where the defendant was convicted of fraud for overbilling
review in guidelines cases, stating in relevant part:                 Medicaid by exaggerating the nature of medical procedures
                                                                      performed).
  The court of appeals shall give due regard to the
  opportunity of the district court to judge the credibility of           The sentence is AFFIRMED.
  the witnesses, and shall accept the findings of fact of the
  district court unless they are clearly erroneous and . . .
  shall give due deference to the district court’s application
  of the guidelines to the facts.
18 U.S.C. § 3742(e) (2003). We cannot say the district
court’s factual findings were erroneous, or the “application of
the guidelines to the facts” unreasonable. The evidence in the
record fully supports the finding that Wilson’s training and
licensing as an emergency room nurse enabled her to obtain
medications and administer them in an injectable form in
order to set the stage for her crime and to divert suspicion
from herself. Although a member of the general public
might be able to buy insulin and hypodermic needles at a drug
store, such a lay person would not have been able to rely on
her skills as a nurse to obtain pain medication in injectable
form and to administer it to her family member at home in
order to provide logical explanations for the injections as a
way to conceal her crime. Without known nursing expertise
and experience, the layperson’s claim to have medicated her
husband at home with injectable forms of prescription
medications would no doubt have prompted further
investigation. Indeed, Mr. Wilson’s treating physician, Dr.
David M. Larsen, testified that typically he provides
