United States of America v. Wynell Gray

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3936
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WYNELL GRAY,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:07-cr-00166-JTM-APR-2—James T. Moody, Judge.
ARGUED JUNE 8, 2011—DECIDED AUGUST 8, 2011
Before POSNER, KANNE, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. A jury convicted Wynell Gray of
Medicaid fraud, 18 U.S.C. § 1347, and conspiracy to
defraud the U.S. government, id., § 371, and the judge
sentenced her to 33 months in prison and ordered her
to pay restitution of $846,115 to Indiana Medicaid. Her
appeal presents a variety of issues, with emphasis on
the government’s alleged violation of the Brady rule,
which requires prosecutors in some circumstances

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2 No. 10-3936
to provide exculpatory evidence in their actual or con-
structive possession to the defendant.
Randy Suddoth, a high school dropout and convicted
felon charged with the fraud along with Gray, pleaded
guilty, was sentenced to 24 months in prison, and
testified for the government at Gray’s trial. A doorman
at the Drake Hotel in Chicago, Suddoth had decided in
2001 to start a company that he called “Dovies Medicar” to
transport patients to hospitals and doctor’s offices.
He enlisted the aid of his friend Gray, the only college
graduate he knew (she has a bachelor’s degree in psych-
ology and a master’s degree in social work). He bought
two vans and leased office space in Indiana, and while
he and a cousin drove the vans Gray—Suddoth’s second
in command—ran the office.
Most of Dovies’ clients were covered by Medicaid, and
the fees for the services that Dovies provided to them
were billed directly to Indiana Medicaid, the state
agency that administers the federal-state Medicaid pro-
gram in Indiana. According to the government’s evidence,
Gray both set up the billing system for the Medicaid
services that the company rendered and did the billing,
which was electronic. After her husband became ill in
the summer of 2002, she worked mainly from home,
mainly on Medicaid billing. Billing for services to other
clients, particularly clients not on Medicaid, was
handled in Dovies’ office by another employee.
The company struggled until, according to Suddoth’s
testimony, Gray hit on the idea of billing Indiana
Medicaid in accordance with the Medicaid billing codes

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No. 10-3936 3
for ambulance services—even though Dovies had no
ambulances—because the billing rates for those services
are much higher than the rates for van services. Dovies’
revenues soared as a result of the change in billing. Gray
testified that the change was Suddoth’s idea, not hers,
and that she didn’t know that Dovies had no ambulances.
The company’s revenues soon rose tenfold; by the end
of the first quarter of 2004 Indiana Medicaid had reim-
bursed Dovies more than $550,000 for nonexistent am-
bulance services. But then EDS, a private company
that Indiana Medicaid has hired to process and pay
Medicaid claims, altered its electronic billing program
so that firms like Dovies that were not certified to
provide ambulance services could not bill for them elec-
tronically. Dovies adapted by filing Medicaid claims for
nonexistent trips in its vans—one claim was for trans-
porting a child more than 90 times when the actual
number was in all probability three.
Dovies’ surging revenues from Medicaid were
deposited in a bank account to which both Suddoth
and Gray had access. Gray withdrew hundreds of thou-
sands of dollars that she used to buy a Subway franchise
and a Curves franchise (Curves is a fitness chain). She
worked mainly at the franchise outlets (whether because
her husband was better or the financial opportunities
provided by the franchises were irresistible), but con-
tinued billing Medicaid from her home after hours
for services supposedly rendered by Dovies. She
testified that the franchises weren’t really hers, that she
was fronting for Suddoth, who couldn’t be listed as
the owner because he was a felon.

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4 No. 10-3936
Eventually Indiana Medicaid tumbled to the fraud, and
Dovies closed its doors in May 2005. Suddoth then
created a new medical transportation company, also
fraudulent, with Gray again doing the billing, but it was
soon shut down.
Gray testified that she had been ignorant of the fraud,
that Suddoth had given her the billing codes and the
phony bills and she had never known that she was
billing for nonexistent services, whether ambulance
services or van services. She testified that she never
submitted a bill for which she hadn’t been given a seem-
ingly authentic trip ticket signed by a driver employed
by Dovies; therefore any false billing must have been
done by some other employee of Dovies.
Before the trial began, Gray’s lawyer asked the govern-
ment for Dovies’ Medicaid billing records, so that
she could determine the date, amount, and patient identi-
fication on each bill and the nature and date of the
service billed for. The government obtained the informa-
tion from EDS and gave a copy to Gray’s lawyer.
At trial a dispute arose over how long it took to bill
Medicaid for a transportation service (whether am-
bulance or van). The question was relevant because
there were many thousands of billings, yet according to
her testimony Gray was doing most of her billing at
home, at night, devoting no more than eight to ten hours
a week to the task. How long it took to bill for each
service rendered (or pretended to be rendered) would
affect Gray’s claim that not she but other employees
had done the billing for the nonexistent services. She

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No. 10-3936 5
testified that it took her about three minutes to bill for
each service and at that rate she could not have billed
for all the phony services in eight to ten hours a week.
An expert witness for the defense who had studied the
EDS data handed over by the government concurred
in Gray’s estimate, but the prosecutor contended that
it took Gray only 40 seconds to bill for a service.
The government had not studied the EDS data, which
in the form supplied by EDS was intelligible only to a
software technician, and was surprised when the
defense expert, having extracted from the data not only
the number of bills but also the dates, found that at
three minutes a bill it would have taken one person
71 hours to do all the billing that EDS’s data showed
Dovies had submitted to Medicaid on July 15, 2004. That
would be feasible on Pluto, which has a 153-hour day,
but not on our fast-spinning planet. So the govern-
ment asked EDS whether it could determine not only
the day on which, but also the time at which, each bill
had been sent, so that the government could get a better
sense of how long it takes to bill for Medicaid transporta-
tion services.
To extract these “timestamp” data EDS had to write
a program and run its billing data through it. Because
the trial was moving toward its close, EDS was able to
obtain time information for only that one day, July 15,
2004, the day of the heaviest billing. Sure enough, it
showed impossibly close billing times: the first two
pages of the 17-page printout showed two bills
separated by one second, two bills separated by two

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6 No. 10-3936
seconds, and two bills submitted the same second. Obvi-
ously there had been more than one biller that day. The
additional biller (or billers) has not been identified.
Although the table of billing times had only three
columns (billing number, date—all July 15, 2004, of
course—and time), and was turned over to the
defendant’s lawyer within a few hours after the prosecu-
tors received it from EDS, she did not use it at the trial.
She used only her expert witness’s testimony that even
if every bill took only 40 seconds to submit, it would
have taken Gray nearly 16 hours of continuous labor
to submit all 1414 bills that Dovies submitted to
Medicaid on July 15, 2004: 1414 x 40 ÷ 3600 [the number
of seconds in an hour] = 15.71 hours (although the
actual interval between the first billing on the printout
and the last was actually 17 hours). So there must
have been another biller, probably more than one,
besides Gray.
The timestamp data, although they were not in the
EDS file that the government had received initially and
turned over to Gray’s lawyer, could have been ex-
tracted from EDS’s database, as was later done. Gray
argues that the prosecution’s failure to extract the data
and turn them over to the defense in advance of trial
violated the Brady rule and entitles Gray to a new trial.
If a prosecutor possesses exculpatory evidence that
had it been disclosed to the defense might have induced
a reasonable jury to acquit, failure to provide it to the
defense would be a reversible error. Brady v. Maryland,

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No. 10-3936 7
373 U.S. 83 (1963); see also Strickler v. Greene, 527 U.S.
263, 280-82, 289-90 (1999); Kyles v. Whitley, 514 U.S. 419,
437-40 (1995); Gantt v. Roe, 389 F.3d 908, 912-13 (9th
Cir. 2004). The rule has been expanded to take in inves-
tigators and other members of the “prosecutorial team”
broadly understood. Kyles v. Whitley, supra, 514 U.S. at 437-
38; United States v. Wilson, 237 F.3d 827, 832 (7th
Cir. 2001); United States v. Hall, 434 F.3d 42, 55 (1st Cir.
2006); United States v. Wood, 57 F.3d 733, 737 (9th Cir.
1995). Otherwise investigators assisting in a prosecution
could conceal from the prosecutors exculpatory evi-
dence that the investigation had revealed and then the
evidence would never be revealed to the defense. But
EDS was not a part of the prosecutorial team. It had
been hired as we said to process and pay bills submitted
to Indiana Medicaid. It was not a private detective
agency hired by the state agency to assist state and
federal prosecutors in prosecuting Medicaid fraud. Medi-
caid fraud investigators were part of the prosecutorial
team, but EDS was not. Because it does the billing for
Indiana Medicaid, the company has records that can
be useful as evidence in fraud prosecutions. But
the defense had the same access to those records as the
prosecutors did, and so there was no suppression of evi-
dence. E.g., United States v. Earnest, 129 F.3d 906, 910
(7th Cir. 1997); United States v. Morris, 80 F.3d 1151,
1170 (7th Cir. 1996).
That’s why Gray is reduced to arguing that in advance
of trial the government should have directed EDS to
create and run programs to extract data from its database

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8 No. 10-3936
that would be useful to the defense. That argument is a
non-starter. E.g., id. at 1168-70. “We find the proposed
extension of Brady difficult even to understand. It
implies that the state has a duty not merely to disclose
but also to create truthful exculpatory evidence.” Gauger
v. Hendle, 349 F.3d 354, 360 (7th Cir. 2003), overruled on
other grounds by Wallace v. City of Chicago, 440 F.3d
421 (7th Cir. 2006). “The failure to create exculpatory
evidence does not constitute a Brady violation.” United
States v. Alverio-Melendez, 640 F.3d 412, 424 (1st Cir.
2011); see also United States v. Monroe, 943 F.2d 1007, 1011-
12 n. 2 (9th Cir. 1991). As it happened, the government
for its own purposes ran such a program during the
trial and having done so, as we know, promptly turned
over the results to the defendant because they were
potentially exculpatory. It had no duty to go further
and conduct the defense’s investigation for it.
It may be helpful to distinguish between patent and
latent exculpatory evidence. Patent exculpatory evi-
dence is evidence that is exculpatory on its face; an exam-
ple would be a confession by Suddoth, in the possession
of the FBI, in which he took full responsibility for the
fraud and described Gray as an innocent whom he
had gulled. Such evidence is Brady material. Latent excul-
patory evidence is evidence that requires processing
or supplementation to be recognized as exculpatory. It
is illustrated by the timestamp data in this case,
the exculpatory character of which was unknown and
unknowable until EDS wrote and ran the program
that extracted the data from its database.

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No. 10-3936 9
To charge prosecutors with knowledge of exculpatory
evidence buried in the computer databases of institu-
tions that collect and store vast amounts of digitized
data would be an unreasonable extension of the Brady
rule. The courts, rightly in our view, have refused to
make it. The government is not “obliged to sift fastidi-
ously” through millions of pages (whether paper or
electronic). United States v. Warshak, 631 F.3d 266, 297 (6th
Cir. 2010). It is “under no duty to direct a defendant to
exculpatory evidence [of which it is unaware] within a
larger mass of disclosed evidence.” United States v.
Skilling, 554 F.3d 529, 576 (5th Cir. 2009), vacated in part
on other grounds, 130 S. Ct. 2896 (2010); cf. United States
v. Joseph, 996 F.2d 36, 37, 39-41 (3d Cir. 1993).
The Brady rule is not a rule of pretrial discovery (Fed. R.
Crim. P. 16 is, but is not contended to be relevant to
this case); under the Brady rule (an interpretation not
of procedural rules, but of the due process clause) “disclo-
sure even in mid-trial suffices if time remains for the
defendant to make effective use of the exculpatory mate-
rial.” United States v. Higgins, 75 F.3d 332, 335 (7th Cir.
1996); see also United States v. Allain, 671 F.2d 248, 255
(7th Cir. 1982). In any event the government cannot make
disclosure until the exculpatory evidence comes into
its possession (actual or constructive—constructive if
the actual possession is by a police investigator or other
member of the prosecutorial team); that didn’t happen
here until mid-trial; nor was the delay deliberate or
otherwise in bad faith. And as soon as the government
received the evidence it turned it over to the de-
fense—which had time to use it but did not do so.

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10 No. 10-3936
Even if the timestamp evidence were Brady material
that the prosecution had concealed from the defense,
that concealment would not be a reversible error
because the evidence would not have changed the out-
come of the trial, assuming the jury was reasonable.
(No one can gauge with confidence the effect of
evidence on an unreasonable jury.) Remember that the
defense lawyer had the timestamp evidence for July 15,
2004, the day of the heaviest billing. She could have
waved it in front of the jury; she did not so much as
mention it. She could have asked for a continuance to
enable EDS to generate timestamp evidence for other
heavy billing days, or if need be for all billing days. She
didn’t do that either. Maybe she dropped the ball, or
maybe she was content to point out to the jury that even
without timestamp evidence it was obvious from the
number of bills submitted on July 15, 2004, that there
had been more than one biller that day; and there
were other heavy billing days as well. All this evidence
the defense had before the trial began and used at the
trial, and the timestamp evidence would have added
little. United States v. Dawson, 425 F.3d 389, 393 (7th Cir.
2005). The fact that Gray had accomplices (whether
witting or unwitting) who helped her file phony bills
would not exonerate her.
The defense points to the following passage in the
prosecutor’s closing argument to the jury: “when you
want something as badly as [Gray] wanted it, you will
do anything to get it, including staying up for hours on
end to bill nonstop. . . . And it isn’t three minutes to bill

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No. 10-3936 11
an item . . . . Even defendant’s own expert admitted
that you get much better at it as you go along . . . . You
don’t have to wait 3 minutes to call them up. She can
go back to what she billed a week ago, a day ago, a
month ago, a year ago and pull it up and save herself
the time and do it in the 40 seconds. Forty seconds a
claim. And there’s only one, one day like that. One
day with 1400 services provided for 14 people. Fourteen
people. Because the defendant really needed that
money, really wanted that money.”
Gray argues that the prosecutor was telling the jury
that even on July 15, 2004, Gray was the only biller.
He didn’t say that in so many words, but he implied it.
Gray’s lawyer could have objected—but didn’t, maybe
because the time it takes to bill really wasn’t an
important issue, since, as we just said, the fact that
Gray may have had accomplices would not exonerate
her; the evidence that she was centrally involved in
Dovies’ fraud was compelling.
Gray makes other arguments for reversal besides
the timestamp evidence, but only one of them merits
discussion. Suddoth completed his direct testimony at
the end of the first day of trial and was scheduled to be
cross-examined at the start of the second day. He
arrived at court on time but refused to enter the court-
room. A court security officer told the judge that
Suddoth was lying on the floor outside the courtroom,
that he had thrown up in the elevator, and that he ap-
peared to have the “dry heaves.” The judge joked, “If he
pukes on my carpet, he goes directly to prison,” then told

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12 No. 10-3936
the prosecutor to call another witness. Defense counsel
objected, but the judge overruled the objection.
Trial resumed and the judge told the jury: “Mr.
Suddoth did come to the building today, but he has
what appears to be some type of intestinal problem.
He’s been throwing up this morning in the bathroom
[sic—it was the elevator]. He was about to come in
the courtroom and had another attack, so he’s being
medically looked at.” During the next recess the judge
talked to the paramedic who had been summoned to
treat Suddoth. The paramedic said that Suddoth had
refused to be hospitalized or to have any tests
performed on him, and that he (that is, the paramedic)
didn’t know whether Suddoth had actually been ill.
Suddoth told the courtroom security officer that he
just needed a bottle of water; he blamed his distress on
a foot-long Subway sandwich that he’d eaten for break-
fast that morning. At the end of the recess the judge
told the jury that “I’ve been informed that more likely
than not it is something that he had for breakfast, and
he’s feeling better. He’s drinking water and probably
will be available to complete his testimony,” and in fact
he completed his testimony that afternoon.
Gray complains that the judge excluded pertinent
information, namely Suddoth’s refusal of treatment, and
“testified” without any basis in evidence that Suddoth’s
failure to testify as scheduled was attributable to some-
thing he’d eaten rather than to fear of cross-examination.
The judge’s declining to tell the jury that Suddoth
had refused treatment was proper. Gray argues that

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No. 10-3936 13
Suddoth’s refusal of treatment was an admission that he
was faking nausea. But a person often will refuse
medical treatment because he’s feeling better. It’s not an
admission of malingering. For that matter the fact that
a witness becomes sick to his stomach at the prospect
of being cross-examined is not, as Gray argues, an ad-
mission that he was lying on direct examination. An
aggressive cross-examiner might induce nausea in a
truthful witness.
It would have been better had the judge said
nothing about Suddoth’s physical condition. All he
need have told the jury was that although Suddoth
had been scheduled to be the first witness that morning,
the schedule had changed and he would testify later
and another government witness would testify first. But
the judge’s remarks about Suddoth’s condition cannot
be thought reversible error. Gray argues that they
created sympathy for Suddoth and an excuse for what
he claimed in his testimony under cross-examination
were failures of recollection. But the jury can’t have
had much sympathy for Suddoth, as he had pleaded
guilty to conspiring with Gray to commit Medicaid
fraud. And Gray’s lawyer could have cross-examined
Suddoth about his “refusal of treatment” but did not.
That’s an indication that she didn’t think the judge’s
comments about Suddoth’s condition would predis-
pose the jury to believe his testimony.
AFFIRMED.
8-8-11

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