In the

United States Court of Appeals

For the Seventh Circuit

No. 00-1013

United States of America,

Plaintiff-Appellee,

v.

Georgia R. Freitag,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern

Division.

No. 99 CR 218--Rebecca R. Pallmeyer, Judge. 

Argued May 18, 2000--Decided October 31, 2000

 Before Posner, Diane P. Wood, and Williams,

Circuit Judges.

 Williams, Circuit Judge. A jury

convicted Defendant Georgia R. Freitag of

several crimes relating to her alleged

scheme to defraud the federal government

by submitting false Medicare

reimbursement claims on behalf of an

ambulance company she operated. Based in

part on findings regarding the amount of

money involved in her fraud and Freitag’s

truthfulness at trial, the district court

sentenced Freitag to 41 months’

imprisonment. On appeal, Freitag

challenges her convictions and sentence.

Concerning her convictions, Freitag

contends that the district court

committed reversible error by refusing to

excuse a sleeping juror and by allowing

the government to elicit comments on her

credibility and the credibility of other

witnesses during her cross-examination.

As to her sentence, Freitag asserts that

the district court erred in making its

fraud loss calculation and by imposing an

obstruction of justice enhancement under

the Sentencing Guidelines. For the

reasons stated below, we affirm Freitag’s
convictions and sentence.

I

 In 1979, Freitag began operating a small

ambulance service out of a funeral home

that she and her husband had purchased in

Wilmington, Illinois. Over the years, her

ambulance service grew, and in 1995, she

incorporated the business as Freitag

Ambulance Corporation (FAC) and opened

offices in Joliet, Illinois, and

Wilmington. The vast majority of FAC’s

business involved pre-arranged, nonemergency ambulance transportation for

elderly individuals. Freitag’s alleged

fraudulent activity arose out of her

efforts to obtain Medicare reimbursement

for ambulance transportation to Medicare

beneficiaries. At trial, the government

attempted to show that Freitag engaged in

a scheme to defraud the Medicare program

by submitting false reimbursement

claims./1 

 Under the Medicare program, which

provides federally-funded health

insurance benefits to individuals age 65

and older, ambulance service providers,

like FAC, are entitled to Medicare

reimbursement if the ambulance

transportation is "medically necessary."

Ambulance transportation is deemed

medically necessary when other means of

transportation would jeopardize a

patient’s health. To obtain a

reimbursement, an ambulance service

provider must submit a claim to the

insurance carrier that processes Medicare

claims in the state in which the provider

does business. During the relevant time

period in this case, the insurance

carrier that processed Medicare claims in

Illinois was Blue Cross/Blue Shield of

Illinois ("Blue Cross"). 

 FAC office employees Lisa Watson and

Janet McLaughlin testified that Freitag

instructed them to bill Blue Cross for

any ambulance transportation involving

Medicare beneficiaries./2 Watson

testified that she submitted Medicare

claims electronically, using the "WA"

medical necessity modifier (or billing

code),/3 as instructed by Freitag.

According to Watson, Freitag was present

during conversations in which FAC

emergency medical technicians indicated

that certain Medicare beneficiaries did
not need ambulance transportation. Watson

testified that she spoke to Freitag about

Medicare bulletins that pertained to

ambulance billing, but Freitag never made

any changes to FAC’s billing practices.

Watson further stated that she told

Freitag that FAC’s billing practices "had

to stop" after they attended a seminar

dealing with Medicare fraud.

 In May 1996, Blue Cross received two

anonymous calls indicating that FAC may

have been submitting false Medicare

reimbursement claims. Blue Cross

initiated a fraud investigation by

sending FAC a document request seeking

ambulance "run sheets" for certain

Medicare beneficiaries./4 Upon receiving

the document request, Freitag instructed

Watson and McLaughlin to retrieve and

alter approximately 300 run sheets. In

accordance with her instructions, Watson

and McLaughlin blotted out "WC" or

"wheelchair" from the run sheets and

indicated that the patients could be

moved by stretcher only. 

 McLauglin subsequently called a fraud

hotline at Blue Cross to report that the

run sheets had been falsified. Blue Cross

referred the case to the U.S. Department

of Health and Human Services ("HHS"),

Office of Inspector General, to initiate

a criminal investigation. After a HHS

agent obtained duplicates of the run

sheets from the Riverside Medical Center

in Kankakee, Illinois, the agent

discovered alterations in the set that

FAC had sent to Blue Cross. Two federal

agents then went to FAC to interview

Freitag. 

 During the interview, the agents advised

Freitag that they believed that

alterations were made to the run sheets.

Freitag initially stated that she had no

knowledge of how the alterations were

made. According to the testimony of one

agent, however, Freitag later indicated

that she did not want Watson or

McLaughlin to get in trouble and she

inquired whether the agents could

"assume" that she had instructed Watson

and McLaughlin to make changes to the run

sheets. 

 Nearly a year after the interview, but

while the criminal investigation was
pending against FAC, Freitag contacted

Brenda Lalumendre, an office manager for

a doctor’s office, and asked her to

prepare letters on behalf of one of the

doctors (Dr. Gant) for whom she worked

stating that it was medically necessary

for FAC to transport certain Medicare

patients to the office by ambulance.

Freitag then faxed Lalumendre a list of

transportation dates and patients for

which she wished the letters to cover.

Over the next four months, Freitag called

Lalumendre repeatedly requesting the

letters. Lalumendre eventually contacted

Medicare to obtain a copy of the

guidelines pertaining to ambulance

billing. After she realized that Medicare

did not cover ambulance transportation

for the patients for whom Frietag was

seeking letters, Lalumendre testified

that she did not provide Freitag with any

letters.

 In further support of its case, the

government called former FAC emergency

medical technicians to testify against

Freitag. They testified that in most

instances they did not perform medical

services when transporting certain

Medicare beneficiaries to and from

doctors’ offices, dialysis centers, or

rehabilitation centers. They also

testified about occasions when certain

Medicare beneficiaries walked to and from

the ambulance without assistance. The

government further admitted into evidence

the falsified ambulance run sheets, seven

Medicare checks payable to FAC, and a

chart showing that FAC billed over

$500,000 in Medicare reimbursement claims

for seven Medicare beneficiaries, which

the government believed were

medicallyunnecessary. 

 In her defense, Freitag called Dr.

Katherine Katsoyannis to testify as an

expert witness. Dr. Katsoyannis testified

that certain patients required ambulance

transportation based on their medical

records. On cross-examination, however,

Dr. Katsoyannis admitted that she had

never seen or examined any of the

patients she was testifying about, or

reviewed any interview reports of the FAC

emergency medical technicians who

transported them. 

 Freitag also testified in her own
defense. She testified that she never

intended to defraud Medicare. She stated

that every claim she submitted to

Medicare was medically necessary.

According to Freitag, she instructed

Watson and McLauglin to alter the

ambulance run sheets only because she was

"petrified" by the prospect of an audit.

She testified that she was "scared as

hell" when the federal agents interviewed

her because they allegedly screamed,

yelled, and accused her of altering run

sheets. She stated that she told the

agents that she only transported Medicare

beneficiaries when medically necessary.

She also testified that she did not

request letters from Lalumendre in

response to the criminal investigation

into FAC’s billing practices.

 On the basis of the evidence introduced

at trial, a jury found Freitag guilty of

all charges brought in the indictment,

including eight counts of mail fraud, in

violation of 18 U.S.C. sec. 1341, seven

counts of submitting false claims to the

government, in violation of 18 U.S.C.

sec. 287, and one count of health care

fraud, in violation of 18 U.S.C. sec.

3231. The district court sentenced

Freitag to 41 months’ imprisonment

followed by two years’ supervised release

with a special condition of 150 hours

community service, a $1,250 special

assessment, and $506,713 in restitution.

On appeal, Freitag challenges her

convictions and sentence.

II

A. Freitag’s Challenges to Her

Convictions

 1. The Sleeping Juror

 Freitag contends that the district court

committed reversible error by refusing to

excuse a sleeping juror. At trial, one of

the jurors apparently fell asleep, though

the parties dispute the extent of the

juror’s slumber. Late in the trial, when

a question regarding another juror was

raised, defense counsel asked the court

to remove the juror that had been

sleeping. The district judge declined,

noting that she had only twice noticed

his inattentiveness and she did not think

it was necessary to excuse the juror. The

judge then instructed counsel for both
sides to alert her if they noticed the

juror sleeping again.

 If sleep by a juror makes it impossible

for that juror to perform his or her

duties or would otherwise deny the

defendant a fair trial, the sleeping

juror should be removed from the jury.

See United States v. Kimberlin, 805 F.2d

210, 244 (7th Cir. 1986); United States

v. Bradley, 173 F.3d 225, 230 (3d Cir.

1999); United States v. Springfield, 829

F.2d 860, 864 (9th Cir. 1987). However, a

court is not invariably required to

remove sleeping jurors, Springfield, 829

F.2d at 864, and a court has considerable

discretion in deciding how to handle a

sleeping juror, United States v. Wilcox,

50 F.3d 600, 603 (8th Cir. 1995).

Reversal is appropriate only if the

defendant was deprived of his Fifth

Amendment due process rights or his Sixth

Amendment right to an impartial jury.

Springfield, 829 F.2d at 864. We review

the district court’s handling of this

matter for an abuse of discretion.

Bradley, 173 F.3d at 230. 

 Here, there is no evidence that the

sleeping juror missed large portions of

the trial or that the portions missed

were particularly critical. As noted

earlier, the parties dispute the extent

of the juror’s slumber, and defense

counsel failed to raise the matter when

he first noticed the sleeping juror.

Indeed, he waited nearly a week before

alerting the district judge. Once he

raised the issue, the Assistant United

States Attorney (AUSA) stated that she

had only noticed the juror "closing his

eyes" on one occasion. Given that counsel

for both sides had noticed the juror’s

inattentiveness, the wiser practice would

have been to raise the issue as soon as

practicable. Then, the district judge

could have taken the necessary steps to

address the issue as she did when defense

counsel finally alerted her.

Unfortunately, defense counsel opted to

wait, and by the time he raised the

issue, the district judge found it

unnecessary to dismiss the juror because

she had not noticed an extensive sleeping

problem. Given the state of the record,

we find no basis for concluding that

Freitag was deprived of due process, an

impartial jury, or for that matter, a
fair trial. 

 Freitag contends that the district judge

should have inquired further into this

matter to determine how much and which

evidence the sleeping juror might have

missed. The district judge declined to

address "memory lapses" because "[t]hat

can go on even when a juror appears

attentive." We find no abuse of

discretion by the district judge,

especially since she had not noticed an

extensive sleeping problem and she

admonished counsel on both sides to alert

her to any further sleeping episodes. 

 2. Questions Concerning Credibility of

Witnesses

 During Freitag’s cross-examination,

counsel for the prosecution asked Freitag

several questions regarding whether she

was lying and whether other witnesses

were lying or telling the truth. Freitag

contends that these questions were

impermissible and that the resulting

prejudice requires that the court grant

her a new trial./5 

 Because credibility questions are for

the jury, it is improper to ask one

witness to comment on the veracity of the

testimony of another witness. See United

States v. Cole, 41 F.3d 303, 308 (7th

Cir. 1994); United States v. Sullivan, 85

F.3d 743, 749-50 (1st Cir. 1996). While

conceding that under this rule it was

improper for the AUSA conducting

Freitag’s cross-examination to ask her if

other witnesses were lying, the

government contends that it was not

improper to ask Freitag whether she,

herself, was lying because it is

appropriate to ask a witness whether she

is adhering to her oath. The government

further asserts that it was not improper

to ask Freitag whether other witnesses’

testimony was true. In support of this

assertion, the government characterizes

questions about whether another witness’s

testimony is true as questions about

whether the witness’s testimony is

accurate. 

 From our review of the record, the
government’s cross-examination of Freitag

was far from model. In some instances,

the government asked questions that

called on Freitag to comment essentially

on the truthfulness, not the accuracy, of

other witnesses’ testimony. The district

judge properly sustained a number of

objections because that sort of

questioning invades the province of the

jury; indeed asking if testimony is true

implies that if it is not, it is a lie,

which is a credibility question for the

jury to decide. However, we are not

troubled by the prosecutor asking a

witness to remark on the truthfulness of

her own testimony because the witness’s

reaction and response are proper fodder

for the jury’s credibility

determinations.

 Assuming arguendo that all the questions

Freitag objects to are improper, we find

the resulting error to be harmless. The

challenged questions constituted only a

small portion of the entire crossexamination and there was no significant

impact on Freitag’s defense. More

importantly, the evidence against Freitag

was overwhelming.

 Freitag’s office employees (Watson and

McLaughlin) testified about FAC’s

improper billing practices and Freitag

even admitted to falsifying records in

response to a fraud investigation by Blue

Cross, which processed Medicare claims in

Illinois. The record also contained

testimony from former FAC emergency

medical technicians who testified that

certain Medicare beneficiaries did not

require ambulance transportation.

Moreover, Lalumendre testified that

Freitag pressured her to write doctor’s

letters stating that it was medically

necessary to transport certain Medicare

beneficiaries by ambulance. Therefore,

the improper questions do not warrant a

reversal because the government

introduced substantial evidence of

Freitag’s guilt.

B. Freitag’s Challenges to Her Sentence 

 1. Calculation of Loss

 In fraud cases, the sentence a defendant
receives depends upon the amount of loss

involved in the defendant’s crime. See

U.S.S.G. sec. 2F1.1. In this case, the

large number of fraudulent claims (over

8,000) and the extensive period over

which the claims were submitted (seven

years) made a precise calculation of loss

impractical. Accordingly, the government

turned to a group of statistical experts

to devise a statistical survey that would

produce or generate an estimate of loss. 

 The experts selected a sample of 200

claims from a 15- month period and

determined how much of the Medicare money

Freitag took in with respect to those

claims was fraudulently procured. Then,

this result was extrapolated to estimate

how much of the Medicare money Freitag

took in over the 15-month period was

fraudulently procured. The final estimate

was $506,713. 

 The court accepted this figure as the

amount of fraud loss and, under U.S.S.G.

sec. 2F1.1, increased Freitag’s offense

level by 10 as the loss exceeded

$500,000. Freitag contends that admitted

errors by the nurse, who evaluated which

of the Medicare reimbursement claims were

improper, undermine the validity of the

loss determination. As this is a

challenge to the factual determinations

underlying the district court’s loss

calculation, we review the district

court’s finding of fact for clear error.

United States v. Mattison, 153 F.3d 406,

412 (7th Cir. 1998).

 Here, the amount of loss resulting from

Freitag’s fraud was calculated over only

a 15-month period even though the

fraudulent activity took place over a

seven-year period. As the government

points out, the loss determination is

quite conservative given the scope and

duration of Freitag’s fraud scheme.

Moreover, Freitag was given the benefit

of the doubt with respect to each claim

(in the 200 sampled) that for one reason

or another could not be evaluated. As the

Sentencing Guidelines only require a

"reasonable estimate of the loss," see

U.S.S.G. sec. 2F1.1 cmt. 9, we find

nothing unreasonable about the district

court’s loss determination based on the

record. Moreover, even if the district
court had taken into account the two

claims on which the evaluating nurse

admitted error, the amount of loss would

still exceed $500,000./6 Thus, a

redetermination of the fraud loss is

unjustified. 

 2. Obstruction of Justice Enhancement

 In sentencing Freitag, the district

court adjusted her offense level upward

after concluding that Freitag had

obstructed justice within the meaning of

U.S.S.G. sec. 3C1.1 by committing perjury

at trial. The district court found that

Freitag had lied in testifying about

three matters: (1) calls she made to a

doctor’s office; (2) the conduct of a

federal agent during the investigation;

and (3) whether certain (unspecified)

conversations with her employees

occurred. Freitag challenges the district

court’s obstruction of justice ruling on

the grounds that the court did not make

the necessary findings on the elements of

perjury and that at least the first two

instances of alleged perjury do not

actually qualify as perjury. This court

reviews the adequacy of a district

court’s perjury findings de novo and

reviews a district court’s factual

findings that the defendant committed

perjury for clear error./7 United

States v. Gage, 183 F.3d 711, 715 (7th

Cir. 1999).

 Under the Sentencing Guidelines, perjury

at trial constitutes obstruction of

justice and subjects a defendant to an

upward adjustment in offense level. 

U.S.S.G. sec. 3C1.1 cmt. 4; United States

v. Dunnigan, 507 U.S. 87, 94 (1993). A

defendant commits perjury under this

provision if he or she "gives false

testimony concerning a material matter

with the willful intent to provide false

testimony, rather than as a result of

confusion, mistake, or faulty memory."

Dunnigan, 507 U.S. at 94. While it is

advisable for a district court to make

specific and clear findings on each

instance of perjury, all that is required

to impose the obstruction of justice

enhancement on perjury grounds is that

the court make a finding that encompasses

the factual predicates for a finding of
perjury. Id. at 95.

 Freitag first contends that the district

court did not make sufficient findings of

specific intent with respect to any of

the three alleged instances of perjury.

However, this position cannot be

maintained in face of the following

statement made by the district judge, "I

didn’t believe Miss Freitag’s testimony

was the result of confusion, mistake, or

faulty memory. I thought it really did

function more as a creative revision of

what had happened." Similarly, Freitag

challenges the sufficiency of the

district court’s findings concerning her

testimony about whether conversations

with certain employees occurred. She

claims the district court erred by not

specifying which employees or

conversations it was referring to.

Dunnigan does not require such

specificity, however. The district court

found that her testimony was

intentionally given, false, and material;

nothing more is required under Dunnigan

in the way of findings. And, as the

government has shown, there is more than

sufficient factual support in the record

for the district court’s finding./8

 Freitag further contends that neither of

the first two alleged instances of

perjury in fact constituted perjury. The

government concedes that her testimony

about the conduct of the federal agents

does not support a perjury finding

because it was not material, but the

government does insist that her testimony

regarding the timing of calls she made to

a doctor’s office (in an effort to have a

doctor indicate that certain patients

qualified for Medicare-funded ambulance

service) was perjurious. With respect to

that testimony, Freitag claims her

testimony was literally true, even if it

was misleading. See Bronston v. United

States, 409 U.S. 352 (1973). However,

this cannot be squared with the trial

transcript where Freitag’s account of

when she asked for the doctor’s letters

is in direct conflict with the testimony

of the person she claims to have called

at the doctor’s office. The district

court did not commit clear error in

finding that Freitag perjured herself in

giving this testimony. As there are

sufficient grounds for the district
court’s obstruction of justice

determination, we affirm that

determination.

III

 For the foregoing reasons, we AFFIRM

Freitag’s convictions and sentence.

/1 The government’s fraud accusation centered on

seven Medicare beneficiaries in particular, none

of whom testified at trial. 

/2 Freitag hired Watson as an office assistant in

April 1995. A year later, Freitag hired McLaughlin as an office manager. Before hiring Watson,

Freitag handled the billing at FAC.

/3 In submitting electronic claims, a provider is

required to use a two-character billing code,

"WA" (that is, a "medical necessity modifier"),

to convey information about the condition of the

patient. The medical necessity modifier indicates

that ambulance transportation was medically

necessary because the patient was transported

under one or more of the following conditions:

the patient was immobile because of a fracture or

possible fracture; the patient had to be restrained; the patient was unconscious or in

shock; the patient had sustained an acute stroke

or myocardial infarction; the patient had an

accident or acute illness; the patient had sustained severe hemorrhage; the patient could be

moved only by stretcher; or the patient was bedconfined before and after the trip.

/4 A "run sheet" is a written record of each patient

transport. The ambulance crew completes the run

sheet each time a patient is transported, documenting, among other things, the location of the

pick-up and the destination, the patient’s physical condition, any medical services performed

while the patient was in the ambulance, and the

reason why an ambulance was needed.

/5 Freitag also mentions a comment by the AUSA

conducting the cross-examination about the AUSA’s

recollection of the testimony of certain government witnesses, but she does not develop any

argument based on this comment and therefore has

waived any argument that could be made.

/6 Freitag cites two errors each in the amount of

$276.32, but she has failed to show how these

errors undermine the reasonableness of the initial loss determination given the overall scope
and duration of the fraud scheme.

/7 The government contends that this court should

review the adequacy of the district court’s

findings for plain error because Freitag did not

object to the adequacy of the district court’s

findings below. However, as Freitag points out,

when a defendant consistently disputes an issue

(as Freitag did here) and the district court does

not specifically elicit objections to the adequacy of its findings (as the district court did not

here), the defendant does not have to interpose

a further objection to the adequacy of a district

court’s findings after the district court has

ruled. United States v. Patel, 131 F.3d 1195,

1201-02 (7th Cir. 1997).

/8 Freitag, for instance, completely denied having

a conversation with Watson after they attended a

seminar dealing with Medicare fraud. Watson,

however, testified that she had a conversation

with Freitag on their way home from the seminar.

During the conversation, Watson stated that she

told Freitag that FAC’s billing practices "had to

stop" and that Freitag could go to prison for

Medicare fraud.