In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1262

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

THERESA PHILLIPS,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:03-cr-01063-1—Blanche M. Manning, Judge.

ARGUED FEBRUARY 8, 2010—DECIDED FEBRUARY 25, 2010

Before BAUER, EVANS and TINDER, Circuit Judges.

BAUER, Circuit Judge. Theresa Phillips appeals her

conviction for defrauding the Medicare program, in

violation of 18 U.S.C. §§ 2 and 1347. She claims that

the district court erred by admitting a redacted audio

recording of her conversation with undercover investigators after the government failed to provide her an

unredacted version. She further claims that the district

court erred by admitting evidence related to certain
2 No. 09-1262

documents produced so close to trial that her attorney

had no meaningful opportunity to examine them. We

have reviewed the district court’s evidentiary rulings.

Finding no error, we affirm.

I. BACKGROUND

Theresa Phillips and her company, Health Care Creations, defrauded the Medicare program by billing it for

services that were not actually performed, were not

medically necessary, and were provided by an unlicensed

therapist instead of by a doctor as claimed.

One piece of evidence admitted against Phillips at trial

was a redacted audio recording and transcript of undercover investigators asking Phillips whether “you” participate in various aspects of Medicare billing. Supp. R. at 11-

14. Phillips contends that she responded affirmatively

to these questions addressed to “you” on behalf of her

company—not herself personally—and that this might

have been evident had the jury heard portions of the

audio recording that were redacted, although she is

unsure because she never received an unredacted

version, or so she claims. The government has always

contended that the redacted portions consisted solely

of irrelevancies, such as silent airtime, and it argues

on appeal that it provided Phillips with the complete,

unredacted version well before trial.

The district court admitted a mountain of other

evidence against Phillips, a small fraction of which included both certain documents produced soon before
No. 09-1262 3

trial and testimony from witnesses described in those

documents. These later-produced documents consisted

of trial exhibits, proposed jury instructions, an interview,

a transcript of testimony at the pre-indictment forfeiture hearing, letters to counsel regarding evidence and

a witness, and finally “search warrant stuff”—an ambiguous phrase which neither party has attempted to

decipher for us. R. 181 ¶ 12. Phillips moved to exclude

these documents, and testimony from any “witnesses

with respect thereto.” Id. at ¶ 13. The district court responded by asking Phillips’ attorney if he wanted additional time to review the materials. He replied that one

week would be sufficient “to review and properly digest

everything. . . . Just one week, if at all possible. We don’t

want a long period of time.” Tr. of April 2, 2007. The

district court granted the requested continuance.

A jury found Phillips guilty and the district court

sentenced her to fifty-one months in prison. Phillips

limits her appeal to the district court’s admission into

evidence of the redacted audio recording and the

evidence related to the later-produced documents.

II. DISCUSSION

A. Redacted Audio Recording

We begin by deciding the proper standards for addressing Phillips’ claims of error regarding the redacted

audio recording. We review a district court’s evidentiary

rulings for an abuse of discretion when the appellant’s

claim of error is preserved, see Gen. Elec. Co. v. Joiner,
4 No. 09-1262

522 U.S. 136, 141 (1997); United States v. Gajo, 390 F.3d

922, 926 (7th Cir. 2002), and for plain error when it is

forfeited. See Fed. R. Evid. 103(d); Fed. R. Crim. P. 52(b);

United States v. Olano, 507 U.S. 725, 733-36 (1993).

Phillips forfeited her claim that the district court erred

in denying her pretrial motion to exclude the redacted

recording without having reviewed the complete

version first, and thus we review this claim for plain

error. Phillips moved to exclude the redacted recording

on grounds that it was redacted, R. 168 at 9, but she

provided no argument asking the district court to

review the complete version before making its ruling.

Only on appeal does Phillips argue that a district court

must review a complete recording before admitting a

redacted version into evidence. Appellant’s Br. at 16-17.

Nor can we say that Phillips’ specific ground of objection, requiring the district court to review the complete

recording in its entirety, was “apparent from the context” of her objection, Fed. R. Evid. 103(a)(1), especially

since she points to no precedent requiring a district

court to perform the sua sponte labor-intensive review

she now requests. Some trial courts have indeed

reviewed complete recordings or transcripts before admitting them into evidence. See United States v. Scarborough,

43 F.3d 1021, 1024 (6th Cir. 1994). But nothing requires

a trial court to do so, unless a party objects to a problem

with the recording or transcript, such as it being

inaudible, id. at 1024; United States v. Bryant, 480 F.2d

785, 789 (2d Cir. 1973), or inaccurate, United States v.

Chiarizio, 525 F.2d 289, 293 (2d Cir. 1975); Bryant, 480

F.2d at 789.
No. 09-1262 5

So we review the district court’s denial of Phillips’

motion to exclude the redacted recording for plain error.

Under this standard, we will reverse only if Phillips

shows that (1) the district court plainly erred in denying

her motion to exclude the evidence; and (2) the error

likely changed the trial’s outcome. Olano, 507 U.S. at 735;

United States v. Curtis, 280 F.3d 798, 801 (7th Cir. 2002).

We find that Phillips has met neither burden.

First, Phillips cannot show that the evidence plainly

should have been excluded. As we have said, nothing

requires a district court to review a complete recording

before admitting a redacted version into evidence,

unless a party objects to a problem with the recording

that requires the district court to review it in order to

referee the dispute. Moreover, even if a redacted

recording tells an incomplete story, this renders the

recording incomplete, not inadmissible—the proper

remedy would be to supplement the incomplete

recording, see Fed. R. Evid. 106, not exclude it.

And in any event, the redacted recording is complete on

its face. Phillips argues that the recording is incomplete

because it sheds no light on whether Phillips inculpated

herself personally, or her company, in response to questions asking whether “you” perform billing operations.

But the recording is clear that Phillips inculpated

herself personally, as the following excerpt reveals:

O’Dea: Okay, and then you mentioned about five

years ago you learned how to perform

billing . . .

Phillips: Right.
6 No. 09-1262

O’Dea: . . . so you’ve been doing that on your own

ever since?

Phillips: Yeah.

O’Dea: Okay. That’s a lot of work because you’re

managing the therapist and . . .

Phillips: Yeah.

O’Dea: . . . submitting the bills.

Phillips: Aw yeah, and I’m a workaholic.

Supp. R. at 13-14. It stretches credulity to think that

Phillips’ company, not herself personally, had “learned

how to perform billing” or was a “workaholic.” Id.;

see also id. at 11 (Phillips explaining how she taught

herself which billing codes to select). So it is no wonder

that Phillips—who participated in the conversation

including any portions that may have been redacted—

finds the existence of redacted exculpatory statements

“speculative.” Appellant’s Br. at 18.

In sum, the evidence was highly relevant, complete on its

face, and not excludable simply because Phillips now

wishes the district court would have performed a reviewing function it had no impetus to perform. So Phillips

can show no plain error in denying her motion to exclude.

Nor can Phillips show that the recording’s admission

likely changed the trial’s outcome. Even without the

recording, the jury still would have heard other evidence

the government produced establishing Phillips’ knowledge and active involvement in the fraud, including

evidence showing that Phillips owned Health Care Cre-
No. 09-1262 7

ations, hired and assigned its doctor and therapists,

directed a therapist to file false reports about patients

not seen, ran operations, and benefitted from the monies

acquired by the fraud. And the investigators on the

recording still could have testified to their conversations.

In any event, Phillips made no effort in her appellate

briefs to show that the recording’s admission prejudiced

her, and we decline to make her arguments for her. See

Vaughn v. King, 167 F.3d 347, 354 (7th Cir. 1999) (“It is

not the responsibility of this court to make arguments

for the parties.”).

So much for the district court’s denial of Phillips’ pretrial

motion to exclude. Phillips also appeals the district

court’s subsequent admission of the redacted recording,

“when the government did not even produce or bring a

full copy of the conversation to trial, as it promised the

District Court it would.” Appellant’s Br. at 2. See also R. 178

at 2 (district court’s denial of Phillips’ motion to

exclude, assuming the government would “have the

complete recordings and transcripts available to the

defense at trial”). But see, e.g., Appellee’s Br. at 20 n.12

(asserting that Phillips’ “trial counsel had a copy of the

unredacted undercover recording”). Phillips forfeited

this claim, that the district court erroneously admitted

the redacted recording at trial when the complete recording was never made available to her, because she

never objected at trial to its admission.

Phillips cannot avoid forfeiture by relying on her prior

motion to exclude the redacted version. Ordinarily, “a

party need not renew an objection . . . to preserve a claim
8 No. 09-1262

of error for appeal.” Wipf v. Kowalski, 519 F.3d 380, 385

(7th Cir. 2008) (quoting Fed. R. Evid. 103(a)). But we

must conduct our review of evidentiary rulings “in light

of the facts and circumstances before the trial court at

the time of the ruling. If the relevant facts and circumstances change materially after an advance ruling has

been made, those facts and circumstances cannot be

relied upon on appeal unless they have been brought to

the attention of the trial court by way of a renewed,

and timely, objection.” Fed. R. Evid. 103, Advisory

Comm. Notes, 2000 Amendment.

Phillips was required to alert the trial court that the

government had not provided her the complete

recordings, in order to preserve her objection to the

admission of the redacted version on the grounds that

the complete version was unavailable. Having failed to

do so, the circumstance of the government failing to

provide an unredacted version “cannot be relied upon on

appeal.” Id.; see also Wilson v. Williams, 182 F.3d 562, 567

(7th Cir. 1999) (en banc) (“Only arguments that were

actually presented to the district court before trial are

preserved for appeal.”). To hold otherwise would be to

“indulge in review by hindsight”—clouded as to

whether Phillips actually had access to the complete

recordings precisely because she never raised the issue

at trial—rather than to evaluate the trial court’s decision

to admit the evidence from its own perspective. Old

Chief v. United States, 519 U.S. 172, 182 n.6 (1997).

So we are left to assess the district court’s admission

of the redacted recording at trial for plain error. Again,
No. 09-1262 9

we will reverse only if Phillips shows that (1) the

district court plainly erred in admitting the evidence;

and (2) the error likely changed the trial’s outcome. Olano,

507 U.S. at 735; Curtis, 280 F.3d at 801. Again, Phillips

has met neither burden.

Phillips cannot show that the district court plainly

erred in admitting the evidence at trial. She argues that

if the unproduced redacted portions contained exculpatory statements, “this would amount to a violation under Brady v. Maryland, 373 U.S. 83 (1963).” Appellant’s Br. at 17-18. But even though producing the

complete recording would have subverted a Brady violation by alerting Phillips to any exculpatory statements,

Phillips cannot rely on the non-production of the

complete recording, as we have said. Even if she could,

there was no Brady violation because Phillips was a

party to the recorded conversation and would have

been aware of any exculpatory statements made. See, e.g.,

United States v. Mahalick, 498 F.3d 475, 478-79 (7th Cir.

2007). In sum, there was no error when admitting

the redacted recording in failing to consider redacted

exculpatory statements, because Phillips had the burden

of pointing them out and she still hasn’t done so.

Phillips also argues that admitting the redacted recording burdened her with testifying to any redacted

exculpatory statements in violation of her Fifth Amendment right to avoid self-incrimination. But Phillips need

not have taken the stand to provide any exculpatory

statements. All she had to do was identify them from

the complete recording and have those portions intro-
10 No. 09-1262

duced via Federal Rule of Evidence 106—as unlikely as

this might have been, for as we revealed, the redacted

portion inculpated her personally.

And again, even without the recording, it is unlikely

that the trial’s outcome would have been different,

given the plethora of other evidence against Phillips.

B. Later-Produced Documents

At last we come to Phillips’ final argument that the

government sandbagged her in the production of certain

evidence, and that the district court therefore erred in

admitting it. Phillips intentionally relinquished her right

to challenge inundation with untimely produced documents when she instructed the district court that one

week would be time enough to review them, and so we

do not review the court’s decision to admit these laterproduced documents for plain or any other type of error.

Olano, 507 U.S. at 733; United States v. Hamilton, 499

F.3d 734, 735 (7th Cir. 2007). Given Phillips’ waiver,

we need not address the government’s alternative arguments that the later-produced documents were few,

provided little to no new information, were produced

later for legitimate reasons, and were easy to digest in

the additional week Phillips was provided.

III. CONCLUSION

Phillips’ claims of error in the trial resulting in her

conviction for healthcare fraud were never raised in the
No. 09-1262 11

district court and are unpersuasive here. Therefore,

we AFFIRM.

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