IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-20140

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RHONDA FLEMING,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:07-CR-513-1

Before JONES, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:*

Rhonda Fleming, now federal prisoner # 20446-009, appeals the district

court’s denial of her second motion for new trial based on newly discovered

evidence. A jury found Fleming guilty of one count of conspiring to commit

health care fraud and wire fraud, 35 counts of aiding and abetting health care

fraud, 10 counts of aiding and abetting wire fraud, 15 counts of concealing

money laundering, and five counts of engaging in monetary transactions in

property derived from specified unlawful activity, and the district court

United States Court of Appeals

Fifth Circuit

F I L E D

April 12, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

 Case: 12-20140 Document: 00512206732 Page: 1 Date Filed: 04/12/2013
No. 12-20140

sentenced her to a total term of 360 months in prison and three years of

supervised release. This court affirmed the judgment. United States v. Arthur,

432 F. App’x 414 (5th Cir. 2011).

The district “court may vacate any judgment and grant a new trial if the

interest of justice so requires.” FED. R. CRIM. P. 33(a). We review the denial of

a motion for a new trial for an abuse of discretion. United States v. Piazza, 647

F.3d 559, 564 (5th Cir. 2011).

Fleming moved for a new trial based on newly discovered evidence “that

[she] was medicated during trial in violation of [her] right to due process, both

because the medication was without medical need and also because it was

involuntary.” A panel of this court found on direct appeal that Fleming’s due

process claim failed because she “voluntarily agreed to take her medication as

a condition of being allowed to proceed pro se.” Arthur, 432 F. App’x at 428

(emphasis added). Thus, due process did not require a determination whether

the medication was medically appropriate. Cf. Sell v. United States, 539 U.S.

166, 179-82 (2003) (holding that defendants have a due process right to avoid the

involuntary administration of antipsychotic drugs absent a finding, inter alia,

that the drugs administered were medically appropriate).

The district court did not err in concluding that Fleming’s claims related

to her competency to stand trial had been “raised before, and rejected by, the

court of appeals on direct appeal.” Fleming did not present with her motion for

a new trial any evidence material to the question whether her right to due

process was violated. See Sell, 539 U.S. at 179-80. Accordingly, the district

court did not abuse its discretion in denying her motion for a new trial. See

Piazza, 647 F.3d at 564.

The district court’s denial of the second motion for a new trial is

AFFIRMED. Fleming’s motions for release on bail pending the disposition of

this appeal, for a remand to the district court for a proffer hearing on her motion

for a new trial, and for a ruling on her motion for release are DENIED as moot.

2

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