RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Wilson No. 02-5290 ELECTRONIC CITATION: 2003 FED App. 0356P (6th Cir.) File Name: 03a0356p.06 OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, for Appellant. R. Leigh Grinalds, ASSISTANT UNITED STATES COURT OF APPEALS UNITED STATES ATTORNEY, Jackson, Tennessee, for Appellee. FOR THE SIXTH CIRCUIT _________________ _________________

UNITED STATES OF AMERICA , X OPINION Plaintiff-Appellee, - _________________ - - No. 02-5290 MERRITT, Circuit Judge. Appellant Janalee Wilson, a v. - former emergency room nurse, injected her husband with > insulin on three separate occasions in an effort to cause his , death so that she could collect the proceeds from several life JANALEE WILSON, - Defendant-Appellant. - insurance policies. On July 29, 1996, her husband died as a result of severe hypoglycemia brought on by an injection of N insulin. Soon thereafter, she submitted claims to various Appeal from the United States District Court insurers and succeeded in collecting nearly $300,000.00 in for the Western District of Tennessee at Jackson. life insurance proceeds. No. 00-10065—James D. Todd, Chief District Judge. On September 19, 2001, a federal jury convicted Janalee Argued: September 11, 2003 Wilson of three counts of mail fraud in violation of 18 U.S.C. § 1341, eight counts of wire fraud in violation of 18 U.S.C. Decided and Filed: October 6, 2003 § 1343, seven counts of money laundering in violation of 18 U.S.C. § 1957, and returned a special verdict of liability on Before: MERRITT, MOORE, and GILMAN, Circuit one count of criminal forfeiture pursuant to 18 U.S.C. § 982. Judges. At sentencing, the district court granted the government’s motion for an upward departure based on the fact that a death _________________ resulted from her fraudulent scheme, increasing her base offense level from 23 to 33, the level corresponding to second COUNSEL degree murder under the Guidelines. The sentencing judge then added a two-level enhancement because Wilson used her ARGUED: Stephen B. Shankman, OFFICE OF THE special skill as a nurse to perpetrate the fraud. Using a FEDERAL PUBLIC DEFENDER FOR THE WESTERN combination of concurrent and consecutive sentences on the DISTRICT OF TENNESSEE, Memphis, Tennessee, for eighteen counts of conviction, the district court sentenced Appellant. R. Leigh Grinalds, ASSISTANT UNITED Wilson to 210 months in prison, the maximum term allowed STATES ATTORNEY, Jackson, Tennessee, for Appellee. for offense level 35 and a criminal history category of I. ON BRIEF: Stephen B. Shankman, M. Dianne Smothers,

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Wilson appeals, arguing in her brief that (1) the evidence On June 12, 1996, Mr. Wilson was admitted to Methodist was insufficient as a matter of law to establish beyond a Hospital with extremely low blood sugar. Records indicate reasonable doubt that she caused her husband’s death as part that Janalee Wilson told a nurse and other emergency workers of a scheme to defraud; (2) the district court erred by that she had given her husband a shot of Toradal (a enhancing her sentence based on her “special skill” as a nurse prescription pain medication) at home because family under § 3B1.3 of the Guidelines; and (3) the district court members were sick with nausea and vomiting. He recovered erred in granting an upward departure of ten levels based on from the incident. Medical tests later revealed that the high the evidence and the jury’s finding that she caused her level of insulin in Mr. Wilson’s body came from an injectable husband’s death as part of her scheme to defraud. Since the source. Janalee Wilson was a Type II diabetic, requiring briefs were filed in this case, a panel of this Court issued its insulin to control her blood sugar, and had access to insulin decision in United States v. Mayle, 334 F.3d 552 (6th Cir. and needles at the hospital. 2003), upholding a district court’s granting of a 23-level upward departure under U.S.S.G. § 5K1.2 based on the On July 10, 1996, Mr.Wilson was again admitted to the district judge’s finding by a preponderance of the evidence emergency room with low blood sugar. The defendant told that the defendant murdered his victim in order to facilitate a hospital workers that she had given her husband a shot of mail fraud offense. At oral argument in this case, Federal Phenergan (a prescription nausea medication) the night Public Defender Stephen B. Shankman advised that, in light before. Tests once again indicated a high insulin level. Mr. of our decision in Mayle, Wilson chose to discuss only the Wilson was referred to an endocrinologist, who concluded point regarding the special skill enhancement under § 3B1.3. that Mr. Wilson’s glandular system functioned normally. We find no error in the findings of the court below on any of the issues raised, and we address here only the point discussed On July 28, 1996, Janalee Wilson was at work and called a at oral argument. neighbor at around 9 P.M. and asked him to check on her husband. She told the neighbor that when she left for work Section 3B1.3 provides that the district court may increase earlier that evening, her husband was sick and she was the offense level by two if “the defendant . . . used a special worried about him. She later told others that she had checked skill, in a manner that significantly facilitated the commission his blood sugar before she left for work. The neighbor found or concealment of the offense.” U.S.S.G. § 3B1.3. A Mr. Wilson unconscious in a chair. On the direction of “special skill” is defined as “a skill not possessed by members Janalee Wilson, paramedics took Mr. Wilson to a different of the general public and usually requiring substantial hospital from the one he had been taken to for the previous education, training, or licensing.” Id. § 3B1.3 cmt. 2. Janalee episode. Once again, he suffered from dangerously low blood Wilson was a licensed practical nurse working in an sugar. He stayed only a few hours, and the doctor released emergency room. In order for the enhancement to apply, her him to the care of Janalee Wilson based on his understanding skills as a licensed practical nurse must have made it of her training and expertise. (J.A. at 152-53.) “significantly ‘easier’ for [her] to commit . . . the crime.” United States v. Lewis, 156 F.3d 656, 659 (6th Cir. 1998) The next morning, Mr. Wilson was taken by paramedics to (internal quotation marks omitted). We review a district the emergency room with low blood sugar. Mr. Wilson later court’s factual finding regarding the application of § 3B1.3 died as a result of a prolonged episode of hypoglycemia for clear error. Id. at 658. caused by an injection of insulin. At trial, the district judge specifically instructed the jury that, in order to convict Janalee No. 02-5290 United States v. Wilson 5 6 United States v. Wilson No. 02-5290

Wilson of mail fraud, it must first find that she caused her injectable pain medications only to terminal cancer patients, husband’s death by injecting him with insulin. but that he “certainly could have” made an exception with Janalee Wilson because she was a nurse. (See J.A. at 55.) As At sentencing, the district court ruled that “the defendant noted above, another physician witness testified that he felt did use a special skill, that of being a nurse. She injected the comfortable releasing Mr. Wilson to the care of Janalee defendant with Toradol and Phenergan, and she said she did, Wilson on the night of July 28, 2003 because of her special and she told that to the doctors in an effort to cover up the fact training as a nurse and expertise. In short, her special skill as that she had, in fact, injected him with insulin. She was using a nurse made it significantly ‘easier’ for [her] to commit . . . a special skill.” (J.A. at 356.) the crime.” United States v. Lewis, 156 F.3d at 659 (affirming the two level enhancement for use of a special skill Title 18, § 3742(e) provides for the standard of appellate where the defendant was convicted of fraud for overbilling review in guidelines cases, stating in relevant part: Medicaid by exaggerating the nature of medical procedures performed). The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of The sentence is AFFIRMED. the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and . . . shall give due deference to the district court’s application of the guidelines to the facts. 18 U.S.C. § 3742(e) (2003). We cannot say the district court’s factual findings were erroneous, or the “application of the guidelines to the facts” unreasonable. The evidence in the record fully supports the finding that Wilson’s training and licensing as an emergency room nurse enabled her to obtain medications and administer them in an injectable form in order to set the stage for her crime and to divert suspicion from herself. Although a member of the general public might be able to buy insulin and hypodermic needles at a drug store, such a lay person would not have been able to rely on her skills as a nurse to obtain pain medication in injectable form and to administer it to her family member at home in order to provide logical explanations for the injections as a way to conceal her crime. Without known nursing expertise and experience, the layperson’s claim to have medicated her husband at home with injectable forms of prescription medications would no doubt have prompted further investigation. Indeed, Mr. Wilson’s treating physician, Dr. David M. Larsen, testified that typically he provides