Appeal from the United States District Court for the Northern District of Ohio at Akron.
No. 5:19-cr-00349-1—Dan A. Polster, District Judge.
Argued: July 28, 2023
Decided and Filed: January 8, 2024
Before: STRANCH, BUSH, and MURPHY, Circuit Judges.
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OPINION
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MURPHY, Circuit Judge. Thomas O’Lear ran a company that ostensibly offered mobile
x-ray services for residents at nursing homes. But O’Lear used the company to cheat Medicare
and Medicaid programs out of almost $2 million. He relied on the identities of nursing-home
residents to bill for fictitious x-rays. To conceal this fraud during an audit, he also forged the
names of his staff and put duplicate x-rays of some patients in the files of others. A jury
convicted him of healthcare fraud, making a false statement in connection with healthcare
services, and aggravated identity theft. The district court sentenced him to 180 months’
imprisonment.
O’Lear raises several questions on appeal, including the following two: Did the district
court violate his Sixth Amendment right to an “impartial jury” by excluding individuals who had
not been vaccinated against COVID-19 from the pool of potential jurors? And were the nursing-home residents “victims” of O’Lear’s fraud under a “vulnerable victims” sentencing
enhancement even though Medicare and Medicaid suffered the monetary losses? Our respective
answers: No and yes. Unlike members of a particular race or sex, the unvaccinated do not
qualify as the type of “distinctive group” that can trigger Sixth Amendment concerns with
excluding a “fair cross section of the community” from the jury pool. Lockhart v. McCree, 476
U.S. 162, 174, 184 (1986). And because O’Lear used the identities and health records of
nursing-home residents without their permission, he “[took] advantage of” them in a way that
made them “victims” of his fraud under the ordinary understanding of that term. United States v.
Webster, 615 F. App’x 362, 364 (6th Cir. 2015) (citation omitted). O’Lear’s remaining
arguments also lack merit. We thus affirm. |