Fraudsters Seem to Have Unlimited Funds to Fund Attempts to Change Conviction
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The case involved fraudulently billing of Blue Cross Blue Shield of Texas (“BCBS”) for hearing aids. On March 8, 2018, a jury convicted Terry Anderson of Counts One – Fifteen, and Rocky Anderson of Counts One – Four, Six, and Eight – Fifteen of the Superseding Indictment. The Court later found there was insufficient evidence to convict the Defendants on Counts One and Eight, acquitted the Defendants of those counts, and entered judgment on the other counts of conviction.
The Defendants appealed to the Fifth Circuit, and the Fifth Circuit affirmed the judgment (ECF Nos. 252-53). The Defendants now move for a new trial under Federal Rule of Criminal Procedure 33(b), claiming newly discovered evidence, in United States Of America v. Terry Lynn Anderson (1) Rocky Freeland Anderson, No. 3:17-CR-00222-M, United States District Court, N.D. Texas, Dallas Division (April 15, 2022).
ANALYSIS
The Defendants’ Motion for a New Trial was untimely under Rule 33(b)(1) because the Defendants filed this Motion for New Trial three years and ten months after the jury returned its verdict. The time to file a motion for new trial could not be extended because Defendants did not show excusable neglect.
The Government had more than 38 potential witnesses, who testified or were interviewed about events that took place over a decade ago, and at least one of them is now dead. It is reasonable to assume that the surviving witnesses’ memories of the events in issue have diminished and would continue to deteriorate until a new trial occurred. These factors significantly prejudice the Government.
The Motion Fails on the Merits
Even if the Court reached the merits, the Motion would have been denied.
The Defendants were convicted of health care fraud for submitting insurance claims for hearing aids that were medically unnecessary and for which Defendants did not conduct the requisite examinations.
The Defendants contend that two pieces of information constitute newly discovered evidence that, if admitted, would result in an acquittal: first, they cite the end, in
January 2022, of a DOJ criminal investigation into the hearing aid company, Eargo, Inc.; and second, they reference an FDA rule proposed in October 2021, that would permit some hearing aids to be sold over-the-counter, without requiring an examination by a professional. None of this information is relevant to the Defendants’ convictions, would not be admitted at trial, would not require Brady/Giglio production, and thus, would not probably produce an acquittal.
The unrelated investigation into Eargo is not new evidence that would entitle Defendants to a new trial. Defendants contend that the Government has access to evidence underlying DOJ’s decision not to prosecute Eargo criminally that would exculpate Defendants, because Defendants were also investigated for insurance fraud due to submissions for reimbursement for hearing aids.
DISCUSSION
Evidence from an unrelated DOJ investigation in 2021-2022 is not relevant to the Defendants’ actions, state of mind, and criminal intent during 2011-2014, which was the subject of the case against the Andersons.
The second alleged new evidence, a proposed FDA rule that would establish a new category of hearing aids that could be sold over-the-counter, without a hearing test, also does not constitute evidence that would entitle Defendants to a new trial. First, a change in the law does not constitute newly discovered evidence. Even if it did, the proposed rule is not relevant to Defendants’ fraud scheme, because Defendants were not selling over-the-counter hearing aids, but rather, were providing traditional hearing aids, subject to reimbursement by insurance companies.
Since the proposed FDA rule would not be admissible at trial, and therefore would not result in an acquittal; thus, the Motion failed on the merits.
Because Defendants’ Motion for a New Trial was untimely, and further did not cite newly discovered admissible evidence which would probably result in an acquittal of Defendants, the Motion for New Trial was denied.
ZALMA OPINION
Insurance fraud is a highly profitable and unusually effective crime. Even when the fraud perpetrators are caught, convicted and sentenced they have access to the millions of dollars they took from the insurers and the government from the fraud scheme, they can fund an appeal and when that fails, a tardy motion for new trial based on fairly spurious grounds. The USDC took the motion seriously and wrote a detailed opinion explaining why the motion – obviously not warranted and filed late – was a ludicrous waste of the court’s time and should have resulted in sanctions. It did not.
(c) 2022 Barry Zalma & ClaimSchool, Inc.
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and [email protected].
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Refusal to Provide Workers’ Compensation is Expensive
Post 5240
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In Illinois Department of Insurance, Insurance Compliance Department v.USA Water And Fire Restoration, Inc., And Nicholas Pacella, Individually And As Officer, Nos. 23WC021808, 18INC00228, No. 25IWCC0467, the Illinois Department of Insurance (Petitioner) initiated an investigation after the Injured Workers’ Benefit Fund (IWBF) was added to a pending workers’ compensation claim. The claim alleged a work-related injury during employment with the Respondents who failed to maintain workers’ compensation Insurance.
Company Overview:
USA Water & Fire Restoration, Inc. was incorporated on January 17, 2014, and dissolved on June 14, 2019, for failure to file annual reports and pay franchise taxes. It then operated under assumed names including USA Board Up & Glass Co. and USA Plumbing and Sewer. The business ...
Arsonist Incompetently Moves Pro Se to Avoid Prison
Post 5239
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In Christopher A. Barosh v. Morris Houser, et al., Civ. No. 22-0769, United States District Court, E.D. Pennsylvania (November 25, 2025) a convicted arsonist and insurance fraudster moved the USDC acting in Pro se filed Objections to Magistrate Judge Reid’s Recommendation that the US District Judge dismiss his § 2254 Petition to avoid jail.
BACKGROUND
In October 2005, Barosh set fire to his girlfriend’s Philadelphia home — some 25 hours before the cancellation of the property’s insurance policy. Several witnesses saw Barosh leaving the property shortly before the fire erupted. After the fire, Barosh made “two separate admissions of guilt.”
He attempted to pay an acquaintance to provide him with an alibi for the time of the arson. The eyewitnesses, brother, and ...
Conditional Release Allows Supplemental Claims
Post 5238
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A Release Should Totally Resolve Dispute
In Harvey et al. v. Hall, No. A25A1774, Court of Appeals of Georgia, Fourth Division (December 3, 2025) Paul Harvey, an employee of Arthur J. Dovers (d/b/a 3D Mobile Home Services), drove a truck towing a trailer loaded with machinery and equipment. Harvey fell asleep, veered off the road, and crashed into a culvert, causing Lamar Hall serious injuries.
FACTS OF SETTLEMENT
On August 18, 2020, Hall signed a limited liability release under OCGA § 33-24-41.1, releasing Harvey, Dovers, and their insurer (Georgia Farm Bureau Insurance Company) from liability for the accident in exchange for $50,000, “except to the extent other insurance coverage is available which covers the claim.”
Dovers’s general liability insurer (Republic-Vanguard ...
The Professional Claims Handler
Post 5219
Posted on October 31, 2025 by Barry Zalma
An Insurance claims professionals should be a person who:
Can read and understand the insurance policies issued by the insurer.
Understands the promises made by the policy.
Understand their obligation, as an insurer’s claims staff, to fulfill the promises made.
Are competent investigators.
Have empathy and recognize the difference between empathy and sympathy.
Understand medicine relating to traumatic injuries and are sufficiently versed in tort law to deal with lawyers as equals.
Understand how to repair damage to real and personal property and the value of the repairs or the property.
Understand how to negotiate a fair and reasonable settlement with the insured that is fair and reasonable to both the insured and the insurer.
How to Create Claims Professionals
To avoid fraudulent claims, claims of breach of contract, bad faith, punitive damages, unresolved losses, and to make a profit, insurers ...
The History Behind the Creation of a Claims Handling Expert
The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail
Post 5210
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster
When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.
I was initially sat at a desk reading a text-book on insurance ...
The History Behind the Creation of a Claims Handling Expert
The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail
Post 5210
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster
When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.
I was initially sat at a desk reading a text-book on insurance ...
