1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0356P (6th C ir.) File Name: 03a03 56p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

J ANALEE W IL SON , Defenda nt-Appel

lant. X - - - -

> , - - N 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

Befor e: MERRI TT, MOORE , and GI LMAN , Circuit Judges.

_________________ COUNSEL

ARGUED: Stephen B. Shankman, OFFI CE OF THE FEDERAL

PUBL IC DEFENDER F OR THE WESTE RN DIST RI CT OF TENNESSEE, Memphis, Tennessee, for Appellan t. R. Leigh Grinalds, ASSI STANT UNITED ST ATES ATTORNEY, Jackson, Tennessee, for Appellee. ON BRIE F: Stephen B . Shankma n, M. Dian

ne Smothers, 2 United States v. Wilson No. 02-5290

OFFI CE OF THE FEDERAL PUBL IC DEFENDER FOR THE WESTERN DISTR I CT OF TEN NESSEE, Me

mphis, Tennessee, for Appellant. R. Leigh G rinalds

, ASSISTANT UNITED STA TES ATT ORN EY, Ja cks on, Tennessee, for Appellee.

_________________

OPINION

_________________ MERRITT, Circuit Judge. Appellan t Jana lee Wilson, a former emergency

room nurse, in

jected h er husba

nd with insu lin o n three s eparat

e occas ions in an e ffort to c ause his death so that she could collect the proceeds from severa l life insurance policies. On July 29, 1996, her husba

nd died as

a result of se ve re hyp og lyc emia brought on by a n injection of insulin. Soon thereafter, she submitted claims to vari o us insurers and succeeded in collecting nea rl y $ 300,000.0 0 in life insurance proceeds.

OnSeptember 19, 2001, a federal jury convicted Jan ale e Wilson of three

counts of mail fra ud in viola

tion of 18 U .S.C. § 1341, eig

ht counts o f wire f

raud in vi olation of

18 U.S.C. § 1343, sev en counts

of money launder ing in violation of

18 U.S.C. § 1957, an

d returned a spec ial verd

ict of liabil ity on

one count of criminal forfe iture pursuant to 18 U.S.C. § 982. At sentenc ing , the district court granted the gover nment’s motion for an upward departure base d on the fact tha t a death resulted fro m her fra

udulent sc

heme, inc

reasing her base offense level from 23 to 33, the level corresponding to second degreemurder under the G uidelin es. Th e sent encin g judge thenadded a two-level enhancement bec ause Wilson used her special skill as a nurse to perpetra te the f raud. Using a combinationof concurrent and consecutive sentences on the eighteen counts of

convicti on, the dis trict c o urt sentenced Wilson to 210 months in prison, the maximum term allowed for off ens e le vel 35 a nd a cri mi nal hi st ory c ate gor y of I.No. 02-5290 United States v. Wilson 3

Wilso nappeals, arguing in her br ief that (1) the evidenc e

was ins ufficien t as a matter of law to establish bey ond a

reasona ble doubt that she caused her husband’s death as part of a scheme

to defra ud; (2) th e dis tr ict court erred by enhancing

her sentence based on her

“specia l 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 o f her scheme to defraud. Since the briefs were fi led i n this cas e, a panel of this C ourt issue d its decisionin United Stat e s v. Mayl e , 334 F.3d 552 (6th Cir. 2003), u p holding a district court’s granting of a 23-level upward departure under U.S.S.G. § 5K1 .2 b ased on the d istrictjudge’s finding by a preponderance of the e videnc e that the defendant murdered his victim in order to facilitate a mail fraud of

fense . At oral argument in this case, Feder al Public Defender

Stephen B. Shankman advised that, in light of our decision in Mayle , Wilson c hose to discuss only the pointregarding the specia l 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 a rgumen t.

Section3B1.3 provides that the d istrict c ourt may

increa se the offense level by

two if “the defend ant . . . used a special skill, ina manner

that significantly f

acilitated the commission

or concea lment o f the offense.” U.S.S.G. § 3B1.3. A “special skill” is defined

as “a ski ll not possessed by members of the general publ ic and usually requiring substantial education, training, or licensing.” Id. § 3B1.3 cmt. 2. Janalee Wil s onwas a licensed practical nurse working in an
emergency

room. In order for the

enhancement

to apply, her skills as a licen sed prac tical nurse must ha

ve made i

t “signif icantly ‘easier’ f

or [ her] to commit . . . the crime.” United States v. Lewis

, 156 F.3d656, 659 (6th Cir. 1998) (internal quotation marks omitted). We re vi ew a district court’s factual finding regar ding the appl icat ion of § 3B1.3 for clear error. Id. at 658. 4 United States v. Wilson No. 02-5290

OnJune 12, 1996, Mr. Wilson was a dmitted toMethodist Hospital with extre

mely low blood s

u g ar. Rec ords indic ate that Janalee Wil son told

a nurse and other emerge

ncy worke

rs that she had given her hus b and a shot of Toradal (a prescription

pain medi cation)at home because family members were sick with nausea and vomiting. He recovered fromthe incident. Medical tests later revealed that t he high level of insulin i

n Mr. Wilson’ s body

came fr om an inje ctable

source. Janalee Wil son was a Typ e II diabetic

, requiring insuli nto contro l her bloo d sugar , and had access to insu li n and needles at the hospital.

OnJuly 10, 1996, Mr.Wilson was again admitted t o the
emergency

room with low blood sugar. The defendant tol d hospital workers that she had given her husband a shot of Phenergan

(a prescription n aus ea medication) the night before. Tests once again indicated a high insulin level. Mr. Wilson was referred to an endocrinologist, who concluded th at Mr . W il so n’ s g la nd ul ar sys te m f un ct io ne d n or ma ll y.

OnJuly 28, 1996, Janalee Wilson was at work and called a neighbor at aroun d 9 P.M. and asked him to check on her hus band. She told the

neighb or that when she le ft for work earlier that ev ening, 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, par

amedics took Mr. Wils o n to a different hospital f rom the one he had been taken to for the pre vious episode. Once again, he suffer ed from dangerously

low blood
sugar. He stayed only

a few hours, and the doctor release d 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 takenby parame dics to the emergency

room with low blood sugar. Mr. Wilson later died as a res ult of a pr

olonge d epis ode o f hy

pogly cemia caused by a n injection of insulin . At t rial, the di stri ct jud ge specific ally

instructed the jury

that, in or der to convict JanaleeNo. 02-5290 United States v. Wilson 5

Wilson of mail fr aud, it must first find that she caused her husband’s death by injec

ting him with insulin.

At senten cing, the district court ruled that “the defendant did use a spe cial skill

, that of being a nurse. Sheinjected 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.)

Ti tle 18, § 3742( e) provi des for t he standa rd of app ellate review i n guide lines ca ses, stati

ng in re levant pa

rt:

The cou rt of app eals sha ll give d ue reg ard to th e opportuni ty of the district court

to judge the credibility of the witnesse s, and sha

ll accept the findings of fact of the districtcourt unl ess they

are cle arly

errone ous and . .

. shallgive due deference

to the district court’s application of the g uideline s to the fa

cts.

18 U. S.C. § 3742(e) (2003). We cannot say the district court’s factual findings were err oneous, or the “application of the guidelines to the facts” unreasonable. The evidence in the record fully suppo rts the finding that Wilson’s training and lic ensi ng as an eme

rgenc y r oom nurse

enabled her to obt

ain medi cations and admin

ister the m in an inje ctable f

orm in order to set the stag e for her

crime and to divert suspicion fro m herself. Although a member of the g eneral pub li c might be able t o buy insulin and hy

podermic needles at a drug store, such a lay pe

rsonwould not have been able to rely on her s kills as a nurse to obtain pain medication in inject abl e formand to administer it to he r f amily member a

t home in order to provide logi cal expla

nations f or the inje ctions as

a way to conceal her crime. Without known nursing expertise and experience, the layperson’ s claim to have medicated her husband at home wi

th injecta

ble forms

of presc

r iption medications woul d no doubt have prompted further investigation. Indeed, Mr. Wilson’s treating phy sician, Dr. David M. Larsen, testified that typ ically he provides 6 United States v. Wilson No. 02-5290

injectable pain medications only to termina

l cance r patien ts, b u tthat he “ certain

ly c ould have ” made a

n exception with Janalee Wilson because she was a nurse. ( See J.A. at 55.) As noted above, a nother ph

ysi cian witness testif

ied that he f

elt comforta ble releasing Mr. Wils on to the care of Janalee Wilson on the night of July 28, 2003 because of her special training as a nurs e and expe rtise. I n short, he

r specia l skill as

a nurse made it sig

nifican tly ‘easie r’ for [he r] to commit . . . the crime.” United S

t ates v. Le

wis , 156 F.3d at 659 (affirming

the two level enhanc ement fo r use of a spec ial skill where the defenda

nt w as convicted of fraud for overbilling Medicai d by exagg erating the nature of med ica l procedures performed).

The sentence is AFFI

RMED.