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RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0356P (6th Cir.)

File Name: 03a0356p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JANALEE WILSON,

Defendant-Appellant.

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No. 02-5290

Appeal from the United States District Court

for the Western District of Tennessee at Jackson.

No. 00-10065—James D. Todd, Chief District Judge.

Argued: September 11, 2003

Decided and Filed: October 6, 2003 

Before: MERRITT, MOORE, and GILMAN, Circuit

Judges.

_________________

COUNSEL

ARGUED: Stephen B. Shankman, OFFICE OF THE

FEDERAL PUBLIC DEFENDER FOR THE WESTERN

DISTRICT OF TENNESSEE, Memphis, Tennessee, for

Appellant. R. Leigh Grinalds, ASSISTANT UNITED

STATES ATTORNEY, Jackson, Tennessee, for Appellee.

ON BRIEF: Stephen B. Shankman, M. Dianne Smothers,

2 United States v. Wilson No. 02-5290

OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR

THE WESTERN DISTRICT OF TENNESSEE, Memphis,

Tennessee, for Appellant. R. Leigh Grinalds, ASSISTANT

UNITED STATES ATTORNEY, Jackson, Tennessee, for

Appellee.

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OPINION

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MERRITT, Circuit Judge. Appellant Janalee Wilson, a

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

insurance policies. On July 29, 1996, her husband died as a

result of severe hypoglycemia brought on by an injection of

insulin. Soon thereafter, she submitted claims to various

insurers and succeeded in collecting nearly $300,000.00 in

life insurance proceeds. 

On September 19, 2001, a federal jury convicted Janalee

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.

§ 1343, seven counts of money laundering in violation of 18

U.S.C. § 1957, and returned a special verdict of liability on

one count of criminal forfeiture pursuant to 18 U.S.C. § 982.

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

degree murder under the Guidelines. The sentencing judge

then added a two-level enhancement because Wilson used her

special skill as a nurse to perpetrate the fraud. Using a

combination of concurrent and consecutive sentences on the

eighteen counts of conviction, the district court sentenced

Wilson to 210 months in prison, the maximum term allowed

for offense level 35 and a criminal history category of I.
No. 02-5290 United States v. Wilson 3

Wilson appeals, arguing in her brief that (1) the evidence

was insufficient as a matter of law to establish beyond a

reasonable doubt that she caused her husband’s death as part

of a scheme to defraud; (2) the district court erred by

enhancing her sentence based on her “special skill” as a nurse

under § 3B1.3 of the Guidelines; and (3) the district court

erred in granting an upward departure of ten levels based on

the evidence and the jury’s finding that she caused her

husband’s death as part of her scheme to defraud. Since the

briefs were filed in this case, a panel of this Court issued its

decision in United States v. Mayle, 334 F.3d 552 (6th Cir.

2003), upholding a district court’s granting of a 23-level

upward departure under U.S.S.G. § 5K1.2 based on the

district judge’s finding by a preponderance of the evidence

that the defendant murdered his victim in order to facilitate a

mail fraud offense. At oral argument in this case, Federal

Public Defender Stephen B. Shankman advised that, in light

of our decision in Mayle, Wilson chose to discuss only the

point regarding the special skill enhancement under § 3B1.3.

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

at oral argument.

Section 3B1.3 provides that the district court may increase

the offense level by two if “the defendant . . . used a special

skill, in a manner that significantly facilitated the commission

or concealment of the offense.” U.S.S.G. § 3B1.3. A

“special skill” is defined as “a skill not possessed by members

of the general public and usually requiring substantial

education, training, or licensing.” Id. § 3B1.3 cmt. 2. Janalee

Wilson was a licensed practical nurse working in an

emergency room. In order for the enhancement to apply, her

skills as a licensed practical nurse must have made it

“significantly ‘easier’ for [her] to commit . . . the crime.”

United States v. Lewis, 156 F.3d 656, 659 (6th Cir. 1998)

(internal quotation marks omitted). We review a district

court’s factual finding regarding the application of § 3B1.3

for clear error. Id. at 658.

4 United States v. Wilson No. 02-5290

On June 12, 1996, Mr. Wilson was admitted to Methodist

Hospital with extremely low blood sugar. Records indicate

that Janalee Wilson told a nurse and other emergency workers

that she had given her husband a shot of Toradal (a

prescription pain medication) at home because family

members were sick with nausea and vomiting. He recovered

from the incident. Medical tests later revealed that the high

level of insulin in Mr. Wilson’s body came from an injectable

source. Janalee Wilson was a Type II diabetic, requiring

insulin to control her blood sugar, and had access to insulin

and needles at the hospital. 

On July 10, 1996, Mr.Wilson was again admitted to the

emergency room with low blood sugar. The defendant told

hospital workers that she had given her husband a shot of

Phenergan (a prescription nausea medication) the night

before. Tests once again indicated a high insulin level. Mr.

Wilson was referred to an endocrinologist, who concluded

that Mr. Wilson’s glandular system functioned normally.

On July 28, 1996, Janalee Wilson was at work and called a

neighbor at around 9 P.M. and asked him to check on her

husband. She told the neighbor that when she left for work

earlier that evening, her husband was sick and she was

worried about him. She later told others that she had checked

his blood sugar before she left for work. The neighbor found

Mr. Wilson unconscious in a chair. On the direction of

Janalee Wilson, paramedics took Mr. Wilson to a different

hospital from the one he had been taken to for the previous

episode. Once again, he suffered from dangerously low blood

sugar. He stayed only a few hours, and the doctor released

him to the care of Janalee Wilson based on his understanding

of her training and expertise. (J.A. at 152-53.)

The next morning, Mr. Wilson was taken by paramedics to

the emergency room with low blood sugar. Mr. Wilson later

died as a result of a prolonged episode of hypoglycemia

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

Wilson of mail fraud, it must first find that she caused her

husband’s death by injecting him with insulin.

At sentencing, the district court ruled that “the defendant

did use a special skill, that of being a nurse. She injected the

defendant with Toradol and Phenergan, and she said she did,

and she told that to the doctors in an effort to cover up the fact

that she had, in fact, injected him with insulin. She was using

a special skill.” (J.A. at 356.) 

Title 18, § 3742(e) provides for the standard of appellate

review in guidelines cases, stating in relevant part: 

The court of appeals shall give due regard to the

opportunity of the district court to judge the credibility of

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

6 United States v. Wilson No. 02-5290

injectable pain medications only to terminal cancer patients,

but that he “certainly could have” made an exception with

Janalee Wilson because she was a nurse. (See J.A. at 55.) As

noted above, another physician witness testified that he felt

comfortable releasing Mr. Wilson to the care of Janalee

Wilson on the night of July 28, 2003 because of her special

training as a nurse and expertise. In short, her special skill as

a nurse made it significantly ‘easier’ for [her] to commit . . .

the crime.” United States v. Lewis, 156 F.3d at 659

(affirming the two level enhancement for use of a special skill

where the defendant was convicted of fraud for overbilling

Medicaid by exaggerating the nature of medical procedures

performed).

The sentence is AFFIRMED.