United States v. Pedrick

UNITED STATES of America, Plaintiff-Appellant,

v.

Mary Jane PEDRICK, Defendant-Appellee.

No. 98-8870.

United States Court of Appeals,

Eleventh Circuit.

July 22, 1999.

Appeal from the United States District Court for the Southern District of Georgia. No. CR297-10-4, Anthony
A. Alaimo, Judge.

Before HULL and MARCUS, Circuit Judges, and RONEY, Senior Circuit Judge.

HULL, Circuit Judge:

The Government appeals the district court's order granting Defendant Mary Jane Pedrick's motion

for a new trial. After review, we affirm.

I. BACKGROUND

Pedrick was tried jointly with co-defendant Andrew Shankman, M.D. Pedrick and Shankman were

charged jointly with one count of conspiracy to defraud Medicare, Medicaid, and CHAMPUS1 in violation

of 18 U.S.C. § 371 (Count 1) and eighty-nine counts of mail and wire fraud in violation of 18 U.S.C. §§ 1341

and 1343 (Counts 2 to 90). In addition, Shankman alone was subject to ten counts of unlawfully dispensing

controlled substances in violation of 21 U.S.C. § 841(a)(1) (Counts 91 to 100) and twenty-five counts of

money laundering to promote the scheme to defraud in violation of 18 U.S.C. §§ 2 and 1956(a)(1)(A)(i)

(Counts 101 to 125).

Shankman was a psychiatrist who owned and operated Shankman/Davidson Psychiatric Management,

Inc. ("SDPM"), along with co-defendant Thomas Davidson.2 Pedrick was a therapist who worked for Dr.

1
CHAMPUS is the Civilian Health and Medical Program of the Uniformed Services.

2
Co-defendants Thomas Davidson and Michael Davidson were charged in the same indictment as
Pedrick and Shankman, but pleaded guilty prior to trial. Both Davidsons were charged with a total of 156
Shankman and SDPM. Prior to trial, Pedrick moved to sever her case, alleging that she would suffer

compelling prejudice if tried with her co-defendants, especially in light of the unlawful drug dispensation

charges against Shankman. Pedrick's pre-trial motions for severance were denied.

During the four-day trial, the Government presented fifty-five witnesses3 and introduced thousands

of documents. After deliberating for about three and a half hours,4 the jury found Pedrick guilty of all 90

counts against her and Shankman guilty of all 125 counts against him.

Following the jury's verdict, the district court granted Pedrick's motion for a new trial but denied

Shankman's similar motion.5 The district court granted Pedrick a new trial on these three grounds: (1) while

sufficient to preclude a judgment of acquittal, the evidence weighed heavily enough against the verdict to

require a new trial; (2) the Government's reliance on violations of civil regulations affected Pedrick's

substantial rights; and (3) Pedrick did not receive a fair trial and suffered compelling prejudice as a result

of being tried jointly with Shankman. The Government appeals the grant of a new trial to Pedrick.

II. STANDARD OF REVIEW

counts: one count of conspiracy (Count 1), eighty-nine counts of mail and wire fraud (Counts 2 to 90),
and sixty-six counts of money laundering (Counts 101 to 166). Thomas Davidson's plea agreement with
the Government required him to plead guilty to only seven counts: one count of conspiracy (Count 1),
three counts of mail fraud (Counts 2, 28, and 86), two counts of wire fraud (Counts 56 and 72), and one
count of money laundering (Count 101). Thomas Davidson received a total of 24 months' imprisonment
for these counts. Michael Davidson's plea agreement with the Government required him to plead guilty to
only one count of conspiracy (Count 1), for which he received 33 months' imprisonment. The more than
140 counts remaining against the Davidsons were dismissed.

SDPM also was named as a defendant in Counts 1 to 90 but was dismissed altogether
from the indictment prior to trial.

3
Ten other witnesses testified at trial. Pedrick testified in her own defense and presented the
testimony of three character witnesses. Shankman also testified in his own defense and presented the
testimony of five witnesses, mostly former patients.

4
The trial transcript indicates that jury deliberations took place between 12:15 p.m. and 3:50 p.m. on
June 27, 1997.

5
After Shankman's separate motion for judgment of acquittal or for new trial was denied, the court
sentenced Shankman to 87 months' imprisonment. Shankman has appealed his sentence, and that appeal
is proceeding separately.
 A district court's decision to grant a new trial in a criminal case, like a decision to deny a new trial,

generally is reviewed for clear abuse of discretion. United States v. Vicaria, 12 F.3d 195, 197 (11th

Cir.1994); United States v. Cox, 995 F.2d 1041, 1043 (11th Cir.1993). Thus, we review for clear abuse of

discretion the trial court's decision to grant a new trial based on the civil regulations and severance issues.

Where a court's decision is based on the weight of the evidence, however, the decision to grant a

motion for new trial will be "more closely scrutinize[d]" than the denial of such a motion. Cox, 995 F.2d at

1043-44. This more stringent standard of review is to ensure that proper deference is given to a jury's factual

determinations. Id. Consequently, we review under this more stringent abuseof-discretion standard the trial

court's decision to grant a new trial based on the weight of the evidence.

III. DISCUSSION

After review, we find no clear abuse of discretion in the trial court's granting a new trial based on its

finding that Pedrick suffered compelling prejudice in being tried jointly with Shankman. Our conclusion on

severance pretermits the need to reach the other grounds relied on by the trial court.

A district court may grant a new trial when a defendant was unable to receive a fair trial and suffered

actual, compelling prejudice as a result of a joint trial. See United States v. Cassano, 132 F.3d 646, 651 (11th

Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 103, 142 L.Ed.2d 82 (1998). In determining whether the trial court

abused its discretion in finding that Pedrick suffered such compelling prejudice, we examine the charges and

evidence against Shankman versus those against Pedrick.

A. Charges and Overwhelming Evidence Against Shankman

In Count 1, Shankman was charged, along with his company SDPM, Thomas Davidson, Michael

Davidson, and Pedrick, with conspiring to defraud the United States by obtaining money from government

programs through false claims for services not rendered as claimed and for non-reimbursable services. In

Counts 2 to 55 and 86 to 90, these same Defendants were charged with mail fraud due to their causing the

reimbursement checks listed in the indictment to be sent from the government programs to SDPM's main

office. In Counts 56 to 85, these same Defendants were charged with wire fraud for electronically
transmitting claims for reimbursement from SDPM's main office to the government programs and thereby

causing those programs to issue to SDPM the reimbursement checks listed in the indictment. Shankman also

was charged with unlawful drug dispensation, and he and the Davidsons were charged with money

laundering.

The evidence presented against Shankman on these charges was so overwhelming in quantity and

egregious in quality that it explains why the district court found that Pedrick had suffered compelling

prejudice as a result of being tried jointly with Shankman.6 The Government offered substantial evidence of

Shankman's knowledge about and involvement in SDPM's submission of false claims to defraud and obtain

money from the government. As an owner of SDPM, Shankman participated in policy decisions about how

SDPM's main office would bill the government for his and the therapists' services and oversaw the main

office's preparation and submission of claims to the government programs. These claims were all submitted

in Shankman's name, and the checks SDPM received from the government programs were made out to either

Shankman or SDPM.

The Government introduced evidence that Shankman continued to permit SDPM's main office to

submit claims to the government fraudulently billing therapists' services. In 1990, an administrative law

judge ordered Shankman to return $114,255.75 to Medicaid for "psychotherapy" services provided by SDPM

therapists in nursing homes. Again, after a 1993 audit, Shankman repaid Medicaid $10,979.95 for improperly

billing the SDPM therapists' services. In March 1992, Shankman also had been indicted in Glynn County,

Georgia, for billing Medicaid for services rendered by therapists who were not employed by SDPM or

Shankman. The indictment was nolle prossed, however, as a result of a 1995 settlement agreement, in which

Shankman agreed to pay Medicaid $31,774.80.

The Government also submitted extensive evidence that Shankman routinely submitted false claims

to the government for his own services. Shankman openly falsified his flow sheets and patient records in

6
In his pending, separate direct appeal, Shankman raises only sentencing issues. United States v.
Shankman, No. 97-9154 (11th Cir. filed October 16, 1997).
order to double-bill the government for services he and a therapist provided to a patient on the same day. The

government programs reimbursed for only one psychiatric service per patient per day. To collect for both

his and the therapists' services, Shankman would claim to have provided his service on a different date than

the therapist's service. Shankman also would bill for a full session even though he had only spent a few

minutes with a patient or talked briefly to a patient on a phone. Many times when Shankman saw patients

for only a few minutes, he wrote prescriptions for them, and then billed for interactive individual

psychotherapy, using CPT code 90855.7 Shankman used 90855 because it paid well, even though the code

was not for writing prescriptions, but for psychotherapy provided to patients who could not communicate

verbally.

There was also significant evidence introduced about Shankman's dispensation of controlled

substances that could have biased Pedrick's case.8 Because he saw patients for only a few minutes, Shankman

often wrote prescriptions without obtaining any medical or psychiatric histories or determining the medical

necessity of the drugs. Nearly all of Shankman's patients walked out of his office with prescriptions.

Several former patients gave graphic testimony about both the ease with which they could obtain

prescriptions from Shankman and the disastrous results, including overdoses and suicide attempts. For

example, one former patient, T.P., testified that she was a drug addict, looking for some pills, and that Xanax

was her "drug of choice." She learned about Shankman from a friend. During her first appointment, T.P.

estimated that she spent two to three minutes with Shankman. T.P. informed him that she felt depressed and

anxious, that she had taken Xanax before, and that the Xanax had helped her. Shankman did not ask T.P. any

questions relating to her history of drug abuse and did not obtain any other information about her medical or

7
CPT codes are five-digit numerical codes that correspond to verbal descriptions set forth in
Physicians' Current Procedural Terminology, a manual produced by the American Medical Association.
Other CPT codes relevant to this case include 90843, which signifies twenty to thirty minutes of
individual psychotherapy, and 90853, which indicates group psychotherapy.

8
Under 21 U.S.C. § 841(a)(1) and 21 C.F.R. § 1306.04, it is illegal for a practitioner such as a
psychiatrist to issue a prescription for a controlled substance without a legitimate medical purpose and
outside the usual course of his professional practice.
psychiatric history, but did prescribe both Xanax and Prozac for T.P. on that first visit. T.P. went back to

Shankman for Xanax prescriptions several times after her initial visit. One time T.P. obtained 100 to 200

Xanax pills from Shankman in two weeks' time by telling him that she had dropped some of her pills in a mud

puddle. Shankman also continued to write Xanax prescriptions for T.P. even though, as a result of the

medication, T.P. had a seizure, experienced blackouts, became violent, and was sent to jail after being

involved in a high speed police chase that ended in a car accident. T.P. even called Shankman from jail and

had him send Xanax and Restoril prescriptions to her through the prison authorities.

The evidence about how Shankman spent the money SDPM obtained from the government was

equally powerful and again could have caused undue prejudice to Pedrick.9 Thomas Davidson and

Shankman, as co-owners of SDPM, used $158,286.70 in billing-fraud proceeds to make loan payments for

two airplanes. Although the planes were used primarily for flying Shankman between SDPM offices,

SDPM's pilot also testified to using these planes to fly Shankman to the U.S. Open in New York on two

occasions and to fly Thomas Davidson and his family on two trips to Nassau in the Bahamas. The

Government also presented evidence that Shankman and Thomas Davidson used proceeds from SDPM's

billing to purchase a boat and to purchase or lease luxury automobiles—between the two of them, they had

four BMWs and two Mercedes. SDPM also paid many of Shankman's personal expenses such as phone bills,

power bills, and credit card charges. In addition, Shankman reported receiving $206,687 in income from

SDPM in 1994.

B. Charges and Evidence Against Pedrick

Although not charged in the money laundering or drug dispensation counts, Pedrick was charged in

the one count of conspiracy to defraud and obtain money from the government and the eighty-nine counts

of mail and wire fraud. Except for Pedrick, none of the thirty therapists working for Shankman was indicted,

even though SDPM fraudulently billed the government for their services as well.

9
Under 18 U.S.C. § 1956(a)(1)(A)(i), it is unlawful for an individual knowingly to conduct or
attempt to conduct a financial transaction which involves the proceeds of some form of unlawful activity,
"with the intent to promote the carrying on of [the] specified unlawful activity."
 Though Shankman ran SDPM's clinical operations, the Government stressed that in 1993 Pedrick was

promoted to "Vice President of Clinical Operations." Pedrick had only a limited managerial role in clinical

services and no involvement with SDPM's billing. Pedrick also had no ownership interest in SDPM but was

a salaried employee making $46,501 annually as of 1994. Pedrick received no salary increase or increased

duties with this promotion.10 Pedrick also received no bonuses, dividends, or profits from SDPM. Just like

the other therapists, Pedrick saw patients in nursing homes and SDPM's twelve offices in Georgia and Florida.

Five days a week, Pedrick traveled to see patients from 6 or 6:30 a.m. until after 7 p.m. The Government does

not dispute that Pedrick mainly spent her time seeing patients.

More importantly, the evidence also showed without dispute that Pedrick was not involved in

SDPM's billing. SDPM had two divisions: administrative operations and clinical services. Thomas

Davidson headed the administrative, financial, and billing operations, while Shankman ran the clinical

services. Thomas Davidson's son, Michael Davidson, also worked in administrative operations, and

eventually became "Vice President of Administrative Operations" and supervised the manager and three

clerks in the billing department. Pedrick never worked in the administrative division, never prepared any

bills, never transmitted any bill by mail or electronically, and never received, handled, or even saw the

reimbursement checks. The Davidsons, who both testified for the Government, never contradicted the fact

that Pedrick was not involved with the actual billing.

Instead, all billing for clinical services was done from SDPM's main office in Georgia. That SDPM

office provided each therapist, including Pedrick, with daily flow sheets. For nursing home patients, the main

office pre-printed patients' names on the flow sheets, so therapists simply had to check off which patients

were seen and note whether seen individually or in group. For office patients, the therapists filled in the

10
At some point, Pedrick did receive a leased vehicle to drive at a monthly cost to SDPM of $614 for
a Camry and later $586 for a BMW. One other therapist received a SDPM vehicle, a Geo Prizm.
However, the rest of the therapists did receive a $300 monthly travel allowance, which Pedrick did not
receive. Pedrick also had a company American Express card for business and travel expenses, but there
was no evidence that SDPM improperly paid personal expenses for Pedrick.
patients' names and the services provided. Each work day, the therapists faxed or delivered their flow sheets

to the main SDPM office.

After reviewing the flow sheets, the administrative staff prepared the claims, selected the CPT codes,

and mailed or wired claims to the appropriate entity. SDPM received remittance, electronically or by check,

payable to SDPM or Shankman.

Although Shankman sometimes wrote CPT codes on his flow sheets, Pedrick and the other therapists

did not write CPT codes on their flow sheets, as billing instructions were never given to the therapists. Even

though the therapists' flow sheets also never referenced "psychotherapy," SDPM's main office routinely used

the CPT codes for individual and group psychotherapy in submitting claims for their services. The

government programs pay for psychotherapy only if provided by an authorized, licensed

physician-psychiatrist, doctoral-level psychologist, or master's-level clinical social worker.11 Pedrick and

most SDPM therapists had the requisite master's degrees but were not licensed. Thus, SDPM's main office

submitted claims for the therapists' services under Shankman's name.

Conceding Pedrick had no involvement with billing, the Government sought to establish that Pedrick

knew SDPM used fraudulent billing codes and that she aided Shankman and the Davidsons' scheme to obtain

money from the government. The Government's main evidence against Pedrick was that she was present

when Shankman had an hour-long meeting with a Medicaid fraud investigator in July 1989. The fraud

investigator advised Shankman that he was improperly billing Medicaid for psychotherapy by therapists in

nursing homes. An administrative law judge later ordered Shankman to pay back $114,255.75 to Medicaid.

Pedrick believed the matter had been resolved when Shankman paid the fine; she did not know that

SDPM was continuing to bill Medicaid for therapists' services. SDPM's main office told Pedrick that they

billed only Medicare, not Medicaid, for the services the therapists provided, and that such billing was proper.

11
The Georgia Medicaid program would reimburse for diagnostic interviews and for testing by
unlicensed therapists, but only if those services were rendered under the direct supervision of a licensed
physician-psychiatrist. However, Shankman often was not in the same office or nursing home as the
therapists.
Michael Davidson also admitted telling at least one therapist that therapists' services were billable to Medicare

even if not to Medicaid. Several former SDPM therapists also testified that they believed SDPM could bill

Medicare for their services.

The fraud investigator testified that she did not see Pedrick at any subsequent investigation-related

proceeding. There also was no evidence that Pedrick attended any meetings or had any knowledge of the

subsequent audit of Shankman and 1993 sanctions or of Shankman's 1992 indictment and 1995 settlement

agreement.

At trial, the Government also stressed that Pedrick must have known her services were being billed

to Medicaid because when she saw a new patient, she would submit to SDPM's main office a form showing

which entity should be billed. At times, Pedrick attached to her flow sheets copies of patients' Medicaid

eligibility forms or new patient forms with Medicaid numbers. However, all therapists submitted these forms,

as SDPM could bill Medicaid for Shankman's services to those patients.

In addition, the Government emphasized that Pedrick submitted flow sheets showing on occasion she

saw a large number of patients in one day. The Government argued that Pedrick could not actually have seen

so many patients, but Pedrick explained that she could do so because she conducted group therapy. For the

most part, Pedrick did see all patients indicated on her flow sheets. There also was no evidence that Pedrick

changed any dates on her flow sheets.

The Government also focused on Pedrick's improper note-keeping in her patients' charts. Pedrick's

therapy notes for a few patients had entries representing that Pedrick treated those patients on dates after the

patients had died.12 However, these were isolated incidents, which Pedrick conceded arose from the large

number of patients she saw. Pedrick also has admitted that she was sometimes two to three weeks behind in

12
In the three-year period from 1993 to 1995, SDPM had twenty-seven instances of flow sheets
being submitted showing a patient who had recently died had been seen. Although the FBI Agent who
analyzed the flow sheets testified about several instances attributable to Pedrick, he admitted that
therapists other than Pedrick also made this error. For example, the Agent attributed three of the
twenty-seven instances to Shankman, six to therapist Carri Scott, and two to therapist Cindy Leasure.
her notes and thus at times wrote one note for multiple dates of services for a patient, instead of writing a

separate note for each date.13

Lastly, the Government stresses that Pedrick did negotiate a contract for SDPM therapists to provide

group therapy at one nursing home and did some initial training of therapists, particularly regarding how to

make notes in patients' charts. Shankman also instructed the other therapists to take their questions and

problems to Pedrick, as opposed to bothering him. However, there was no evidence that Pedrick reviewed

other therapists' flow sheets or had anything to do with the billing for other therapists' work. Instead, any

"management" role was only on the clinical side, and even that was extremely limited, as Shankman

continued exclusively to approve therapists hired by Thomas Davidson, to assign patients to therapists, and

to give therapists their work schedules.

In summary, the evidence against Pedrick was minimal and not like the overwhelming and vivid

evidence against Shankman. More importantly, there was considerable direct evidence that Pedrick did not

prepare or submit any bills to the government programs, did not know about CPT codes, never claimed to

have provided psychotherapy, and had only limited managerial responsibilities over SDPM's clinical services.

While there may have been sufficient evidence against Pedrick to submit the conspiracy charge to

the jury, it is not at all clear that there was sufficient evidence on all eighty-nine mail and wire fraud counts.14

Each mail and wire fraud count corresponded to a check a government program sent to SDPM as a result of

a claim submitted by the administrative staff in SDPM's main office. It was not clear which of these checks,

if any, involved reimbursement for Pedrick's services. Moreover, although Pedrick did submit flow sheets

for SDPM's administrative staff to use in billing for her services, Pedrick's flow sheets did not contain CPT

13
In addition, therapist Michael Easton died, and Pedrick filled in notes for about nine patients
Easton had seen. Pedrick made no effort to conceal the fact that she wrote the notes, but testified that she
did so because she knew that Easton already had submitted flow sheets and that SDPM's main office
already had billed for these patients.

14
Because Pedrick did not cross-appeal the denial of her motion for judgment of acquittal, we do not
address whether the district court properly denied that motion. We raise the issue of the sufficiency of
this evidence only insofar as it relates to whether the jury adequately sifted the evidence on each count
against each Defendant.
codes, directions to bill her services as psychotherapy, or instructions to bill her services to the government

programs. Instead, Shankman and the Davidsons decided on the CPT codes SDPM would use, and SDPM's

administrative staff applied those CPT codes to Pedrick's services, prepared the claim forms, and mailed or

wired those claims to the government programs.

C. District Court's Compelling Prejudice Determination

It was against this evidentiary backdrop that the district court granted Pedrick's motion for a new trial.

United States v. Shankman, 13 F.Supp.2d 1358, 1363 (S.D.Ga.1998). Acting in accordance with the "

'continuing duty at all stages of the trial to grant a severance if prejudice appear[s],' " the district court decided

that Pedrick had suffered compelling, "spillover" prejudice as a result of being tried jointly with Shankman

and that a new trial was warranted on that ground. Id. at 1367-68 (citing United States v. Johnson, 478 F.2d

1129, 1134 (5th Cir.1973) (quoting Schaffer v. United States, 362 U.S. 511, 516, 80 S.Ct. 945, 4 L.Ed.2d 921

(1960))). The district court observed that Defendants in this case had made pre-trial motions for severance

and that the magistrate judge had properly denied those motions based on the record before the magistrate

judge at that time. Id. at 1368. However, the district court stated that the situation had changed during the

trial, when "the overwhelming majority of the evidence presented by the Government was directed at

Shankman." Id. The district court found not only that there was little evidence directed at Pedrick, but also

that the great weight of the evidence did not support her guilty verdicts. Id. at 1368. Further, because the

jury returned guilty verdicts on all of the counts against both Shankman and Pedrick, the district court

concluded that the jury had not heeded the court's instructions that "[e]ach offense and the evidence pertaining

to it must be considered separately" and had not "meticulously sifted the evidence" against each Defendant.

Id. at 1368-69.

D. No Clear Abuse of Discretion

The Government's brief correctly emphasizes and we reaffirm the preference for joint trials of

co-conspirators. See, e.g., United States v. Smith, 918 F.2d 1551, 1559 (11th Cir.1990) (recognizing the

preference for persons who are charged together to be tried together, "particularly in conspiracy cases"). The
Government also stresses the elements of conspiracy and the fact that a person does not have to know

everything to be part of a conspiracy. We agree and find axiomatic that a conspirator is not required to

participate in all aspects of a conspiracy and may be convicted as a co-conspirator or even an aider and abettor

if she participates in some affirmative conduct designed to aid the success of the venture with knowledge that

her actions would further the venture. See, e.g., United States v. Suba, 132 F.3d 662, 672 (11th Cir.1998).

Indeed, the evidence need not show that each defendant knew of each phase of the conspiracy, all of its

details, all of the conspirators, or the participants in each event. Id.

The Government's emphasis on these well-established principles misses the point here. In reviewing

the district court's grant of a new trial based on the need for severance, the question is not whether we would

reach the same decision utilizing these well-established principles and considering the evidence anew.

Rather, the question is whether the district court clearly abused its discretion in granting a new trial. The

district court saw the witnesses, heard all of the evidence, and is in the best position to evaluate whether

Pedrick suffered compelling prejudice warranting a new trial. Thus, for several particular reasons, we cannot

say that the district court here clearly abused its discretion in finding that Pedrick had suffered compelling

prejudice and granting her a new trial.

First, while it may not have been clear to the district court at the beginning that severance was

necessary, it apparently became clear upon introduction of all the evidence about Shankman's drug

prescription practices, Shankman's changing flow sheet dates, and Shankman's and Thomas Davidson's

planes, cars, and other lavish expenditures. The record was loud and clear as to Shankman's and the

Davidsons' participation in the billing fraud and other crimes. The Government's brief accurately

characterizes the evidence as being "in glorious testimonial color and documentary detail, the bizarre world

of Shankman/Davidson." The Government's own statement acknowledges the inflammatory nature of the

evidence against Shankman and serves as a tacit admission of the resulting prejudice to Pedrick. Pedrick,

while not necessarily innocent, was not in the same league as her co-defendants. The Government even

concedes that Pedrick's role was minor compared to Shankman's and that there was no direct evidence of
Pedrick's knowledge about either the billing codes or Shankman and Thomas Davidson's financial activities.

Moreover, the evidence introduced on the drug dispensation and money laundering charges had nothing to

do with Pedrick.

Second, despite the district court's jury instructions, it is clear from this particular record that the jury

did not adequately sift all this evidence and make an individualized determination as to Pedrick. See United

States v. Schlei, 122 F.3d 944, 984 (11th Cir.1997) (explaining that a defendant can demonstrate compelling

prejudice as a result of a joint trial "by showing that the jury was unable to sift through the evidence and

'make an individualized determination as to each defendant' "), cert. denied, --- U.S. ----, 118 S.Ct. 1523, 140

L.Ed.2d 674 (1998); United States v. Alvarez, 755 F.2d 830, 858 (11th Cir.1985) (stating that "we must

decide whether the jury could follow the district court's cautionary and admonitory instructions and determine

the guilt or innocence of each defendant solely on the basis of that defendant's conduct"). The jury

deliberated for only about three hours and returned guilty verdicts on all 90 counts against Pedrick and all

125 against Shankman. Cf. United States v. Cassano, 132 F.3d 646, 651-52 (11th Cir.) (concluding the jury

made individualized determinations as to each defendant in a conspiracy case with a verdict acquitting one

defendant on all counts, another on all but two counts, and every other defendant on all but one count), cert.

denied, --- U.S. ----, 119 S.Ct. 103 (1998); Schlei, 122 F.3d at 984 (concluding the jury made individualized

determinations as to each defendant in a conspiracy case with a verdict acquitting one defendant on eight of

the counts against him and another defendant on all counts). Indeed, as already mentioned, it is questionable

whether there was sufficient evidence against Pedrick to establish her involvement in all eighty-nine counts

of mail and wire fraud. There was absolutely no evidence that Pedrick reviewed other therapists' flow sheets,

knew CPT codes, prepared any of the claims SDPM's main office submitted to the government programs,

mailed or wired any claims to the government programs, or received any reimbursement checks from the

government programs. Given these particular circumstances, the jury's finding Pedrick guilty on all counts

charged demonstrates that the jury did not sift the evidence and make an individualized determination as to

Pedrick.
 IV. CONCLUSION

For the foregoing reasons, the district court's order granting Pedrick's request for a new trial is

AFFIRMED.