### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-20140 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. RHONDA FLEMING, Defendant-Appellant

A ppeal 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, n ow federal priso n e r # 20446-009, a ppeals the d istrict

co u r t’s denial of her second motio n f o r new t rial b ased on newly discovered evide n c e . 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 o f aiding and abetting wire fraud, 15 counts o f concealing

m oney laundering, and five counts of engaging in monetary transactio n s i n property d erived from specified unlawful activity, and the district court U n i t e d S t a te s C o u r t o f A p p e al s

F i f t h C i rc u i t 

### F I L E D April 12, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-20140 Document: 00512206732 Page: 1 Date Filed: 04/12/2013No. 12-20140

sentenced h e r t o a total term of 3 6 0 months in p rison 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 g rant a new trial if the interest of justice so requires.” F E D
. R. C R I M
. P. 33(a). W e review the denial of

a motion for a new trial for a n 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 m edication was without medical n eed and also because i t was involuntary.” A panel of this court found on direct appe a l t hat Fleming’s due process claim fai l e d 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 m e d i cation was medically appropriate. Cf. Sell v. U n i t e d States , 539 U.S. 166, 179-82 (2003) (holding that defendants have a d ue process r ight to avoid the i n v oluntary administration of antipsychotic drugs absent a finding, i nter alia , that the drugs administered were medically appropriate). The d istrict co u rt did not err in concluding t hat Fleming’s claims related to her compet e n c y to stand t rial h ad been “raised before, a nd rejected by, the court of appeals on direct appeal.” Fleming did not p resent w ith her motion for

a new trial any evidence material to t he question whethe r h e r r i g h t to due process was violated. See S ell , 539 U.S. at 179-80. Accor d i n g l y , t h e district court did n o t a b u s e i t s discretion in denying her motion for a n ew 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 t h e d i s p o s ition of this appeal, for a r emand to the d istrict co u rt for a proffer hearing on her motion for a new trial, a nd for a ruling on her motion for release are DENIED as moot.
2 Case: 12-20140 Document: 00512206732 Page: 2 Date Filed: 04/12/2013