United States of America v. Alice Chu

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 23-1375
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UNITED STATES OF AMERICA
v.
ALICE CHU,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(District Court No. 2-19-cr-000678-001)
District Judge: Honorable William J. Martini
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on
January 29, 2024
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Before: KRAUSE, PORTER, and CHUNG, Circuit Judges
(Filed March 19, 2024)
Nancy Tang

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1694 E 2nd Street
Brooklyn, NY 11223
Counsel for Appellant
William Glaser, Esq.
United States Department of Justice
Criminal Division
950 Pennsylvania Avenue NW, Room 1264
Washington, DC 20530
Jeremy R. Sanders, Esq.
United States Department of Justice
Criminal Division, Fraud Section
1400 New York Avenue NW
Bond Building, 4th Floor
Washington, DC 20005
Counsel for Appellee
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OPINION OF THE COURT
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CHUNG, Circuit Judge.
I. Background
Alice Chu was indicted in September 2019. At her first
status conference on March 5, 2020, her trial was set with the
consent of both parties for February 22, 2021. The COVID-19
pandemic began soon after that status conference and in

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response, the Chief Judge of the District of New Jersey issued
multiple standing orders from March 16, 2020 to December 29,
2021 (“COVID Standing Orders”). In these orders, the Chief
Judge continued trials and excluded from Speedy Trial Act
(“STA”) calculations the periods of delay resulting from these
continuances (“COVID delays”). Chu’s trial eventually
commenced on March 1, 2022 and the jury convicted her of
one count of conspiracy to commit health care fraud in
violation of 18 U.S.C. § 1349 and five counts of health care
fraud in violation of 18 U.S.C. § 1347.1
From January to December 2021, Chu moved to dismiss
multiple times on STA grounds.2 In those motions, she faulted
the District Court’s exclusions of trial delays from STA
calculations, argued that the delays denied her right to a speedy
trial under the Sixth Amendment, and alleged that the
government abused the grand jury process and caused
inexcusable delay. The District Court denied these motions.
Following her conviction, Chu filed two motions for a
new trial: the first claiming that she was unfairly prejudiced by
trial testimony about prior bad acts, and the second claiming
that newly discovered evidence could change the probability
of a conviction at trial and claiming that trial counsel’s
assistance was ineffective. The District Court denied both.
1 The jury acquitted her of receiving health care
kickbacks.
2 Chu sought dismissal with prejudice, except on one
occasion, on which she stated that the “remedy is dismissal
either with or without prejudice in the discretion of the Court.”
Appx. 46.

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Chu challenges these District Court decisions and also
argues that the evidence at trial was insufficient to establish her
knowing and intentional participation in the health care fraud
scheme. We will affirm.
II. Analysis3
A. Chu’s Motions to Dismiss
1. Exclusion of the COVID Delays from STA
Calculations
The STA requires that a criminal trial start within 70
days of a defendant’s first appearance in court unless the
“speedy trial clock” is properly stopped. 18 U.S.C.
§ 3161(c)(1). Section 3161(h) enumerates excusable periods
of delay, including when “the ends of justice served by taking
such action outweigh the best interest of the public and the
defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). Our
sister Courts of Appeals have consistently held that exclusions
resulting from the COVID-19 pandemic do not violate
defendants’ rights under the STA.4 We agree.
3 The District Court had jurisdiction pursuant to 18
U.S.C. § 3231. We have jurisdiction over “all final decisions
of the district courts of the United States.” 28 U.S.C. § 1291.
4 See United States v. Walker, 68 F.4th 1227 (9th Cir.
2023); United States v. Pair, 84 F.4th 577 (4th Cir. 2023);
United States v. Allen, 86 F.4th 295 (6th Cir. 2023); United
States v. Dunn, 83 F.4th 1305 (11th Cir. 2023); United States
v. Leveke, 38 F.4th 662 (8th Cir. 2022). These Courts have

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Chu argues on appeal that no delay was justifiable “after
perhaps January of 2021, or certainly not later than June of
2021.” Appellant’s Br. 21-22. We interpret this as disputing
two time periods resulting from the COVID delays: 1) the
period from Chu’s original trial date of February 22, 2021 to
the second trial date of October 12, 2021; and 2) the period
from January 12, 2022 to February 28, 2022.5 All other time
periods were excluded at Chu’s request or because the parties
agreed to the scheduled trial dates.
In denying Chu’s motions, the District Court adopted
facts that were cited and relied upon in the COVID Standing
Orders, including the declarations of public health emergencies
by the state and federal government, health officials’ guidance
on the need to limit indoor gatherings, the risks of severe illness
to potential jurors, COVID illness and death rates, and the
dramatic spike in COVID cases due to the Omicron variant.
Chu argued that the District Court failed to consider the
individual circumstances of her case as required by the STA.
The District Court addressed these concerns, however, and
concluded that the COVID Standing Orders’ broad application
also found that such delays do not violate the Sixth
Amendment.
5 Chu’s trial was originally scheduled for February 22,
2021 with both parties’ consent. The period from October 12,
2021 to January 12, 2022 was a result of Chu’s own request to
continue trial. Although the period from July 23, 2021 to
October 12, 2021 should arguably be excluded under the STA
as trial preparation time, we will nonetheless address Chu’s
position that this time period was improperly excluded as part
of the COVID delays.

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did not foreclose the applicability of their findings to Chu
individually. We see no clear error in the District Court’s
adoption of the factual findings contained within the COVID
Standing Orders. See United States v. Grier, 475 F.3d 556, 570
(3d Cir. 2007) (en banc) (We will find clear error when
reviewing the entire evidence if we are “left with the definite
and firm conviction that a mistake has been committed.”
(citation omitted)).
When conducting its ends-of-justice analysis, the
District Court considered Chu’s argument that it should not
exclude the COVID delays in light of events such as the lifting
of mask mandates, the availability of vaccination, the option of
commencing single jury trials, and the opening of stadiums,
and her claim that the delay caused her severe mental health
distress. In evaluating Chu’s position, the District Court noted
that imposing jury duty, and any corresponding COVID risks,
on the public was qualitatively different than members of the
public independently choosing to assume risk and engage in
entertainment activities. The District Court further noted that,
even if it did hold trials, any COVID infection of a juror,
witness, Chu, or court staff would cause significant
interruption to the judicial process. Finally, the District Court
also considered Chu’s anxiety, the fact that she was not
detained and thus did not face the increased risk posed by
COVID-19 in a carceral setting, and that she was charged with
serious offenses.
The District Court then balanced the public and Chu’s
interest in a speedy trial with the ends of justice served by
recognizing the District Court’s inability to safely or
effectively conduct trials during a rampant and deadly global
pandemic. The District Court concluded the balance weighed

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in favor of excluding the COVID delays. Given this record of
the District Court’s factual findings and legal analysis, we
conclude its decisions to exclude the COVID delays were not
“arbitrary, fanciful or clearly unreasonable,” and therefore, not
an abuse of discretion. United States v. Frazier, 469 F.3d 85,
87-88 (3d Cir. 2006) (citation omitted); see also United States
v. Adams, 36 F.4th 137, 146 (3d Cir. 2022), cert. denied, 143
S. Ct. 238 (2022).
2. Chu’s Sixth Amendment Claim
The District Court rejected Chu’s claim that the COVID
delays violated her constitutional right to a speedy trial under
the Sixth Amendment. We review the District Court’s factual
findings for clear error and legal conclusions de novo. United
States v. Shulick, 18 F.4th 91, 102 (3d Cir. 2021). We assess
constitutional speedy trial claims under the four-prong test laid
out in Barker v. Wingo, 407 U.S. 514, 530-31 (1972),6 and
agree that Chu fails at the fourth factor because she is unable
to show prejudice.
Barker identified the “most serious” interest in
determining prejudice as the defendant’s ability to “adequately
… prepare his case,” which may be affected when “witnesses
6 These four prongs are “(1) the length of the delay before
trial; (2) the reason for the delay and, specifically, whether the
government or the defendant is more to blame; (3) the extent
to which the defendant asserted his speedy trial right; and (4)
the prejudice suffered by the defendant.” United States v.
Velazquez, 749 F.3d 161, 174 (3d Cir. 2014) (citing Baker, 407
U.S. at 530-31).

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die or disappear during a delay” or when “defense witnesses
are unable to recall accurately [past] events.” Id. at 532. Here,
Chu did not argue nor provide evidence that the delay impaired
her ability to prepare a defense, and only asserted claims of
emotional distress. Chu’s desire to minimize the stress she felt
from delays in her trial, while understandable, is simply not
sufficient on its own to establish prejudice. See Virgin Islands
v. Pemberton, 813 F.2d 626, 629 (3d Cir. 1987). Therefore,
the District Court correctly concluded that the Barker factors
do not warrant a dismissal based on Chu’s Sixth Amendment
speedy trial claim.
3. Grand Jury Delay
Chu also argues that the government abused the grand
jury process, causing inexcusable delay.7 On a claim of grand
jury abuse, we exercise “plenary review over the District
Court’s interpretation and application of the relevant legal
standards.” In re Grand Jury, 286 F.3d 153, 157 (3d Cir. 2002).
Grand jury proceedings are entitled to a presumption of
lawfulness and regularity. In re Grand Jury Proc., 486 F.2d 85,
92 (3d Cir. 1973). Chu presented no facts to rebut this
presumption. Chu primarily focused her argument on the
7 In an effort to accommodate Chu’s requests, the District
Court rescheduled the trial from October 12, 2021, to the
earlier date of August 3, 2021. The District Court then had to
postpone trial again to October 12, 2021, upon learning of the
government’s intent to present the Superseding Indictment.
Chu does not specify the time periods she claims to be caused
by government’s grand jury abuse. Because we find no abuse,
the exact dates do not matter.

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timing of the presentation of the Superseding Indictment “just
weeks before a trial date that had been set nearly two years
from the date of the defendant’s arrest.” Appellant’s Br. 22.
Late timing alone is not sufficient to find grand jury abuse. See
United States v. Barner, 441 F.3d 1310, 1315 (11th Cir. 2006).
Furthermore, even if late timing on its own were sufficient,
Chu’s assertion is factually inaccurate and does not suggest a
“last minute” attempt to deny Chu’s right to a speedy trial.8
Finally, the District Court asked the government to explain the
basis of the Superseding Indictment and carefully reviewed the
proposed substantive changes, which included an increase in
the total amount of false claims submitted and new counts in
connection with new claims of fraud and receipt of healthcare
kickbacks. We agree with the District Court’s conclusion that
such changes were consistent with a good faith investigation
and that Chu failed to show that the government’s “sole or
dominant purpose” was to impermissibly delay her trial. In re
Grand Jury Proc., 632 F.2d 1033, 1041 (3d Cir. 1980). The
District Court thus correctly rejected this argument.
B. Chu’s Motions for a New Trial
We review the District Court’s denial of Chu’s motions
for a new trial for abuse of discretion. Curley v. Klem, 499
F.3d 199, 206 (3d Cir. 2007). Chu’s first motion for a new trial
asserted that the District Court erred in admitting evidence of
uncharged prior bad acts, as the government failed to notify
8 On June 16, 2021, four months before Chu’s then-trial
date of October 12, 2021, the government scheduled time for a
superseding indictment to be presented to the grand jury on
July 23, 2021. This would have provided more than 11 weeks
for preparation between presentment and trial.

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Chu pursuant to Federal Rule of Evidence 404(b) of its intent
to offer such evidence. But Count One of the Superseding
Indictment alleged that Chu and co-conspirator Rosa
Calvanico “submitted and caused the submission of false and
fraudulent claims … for items and services that were … not
provided.” Appx. 32. Therefore, the District Court reasonably
concluded that Calvanico’s testimony was direct evidence of
Count One when she testified that Chu directed her to submit
claims for Chu’s administration of knee injections to her, even
though such services were never provided.
Chu also claimed she was entitled to a new trial because
newly discovered evidence would seriously undermine the
credibility of Calvanico, a key government witness, and would
likely affect the outcome of trial if admitted.9 Specifically,
Chu claimed that Calvanico committed payroll fraud at Chu’s
practice without Chu’s knowledge. Chu also claimed she had
new evidence that Calvanico provided deposition testimony in
other matters in which Calvanico denied that she had ever
9 To determine whether a new trial based on newly
discovered evidence is warranted, “courts apply the following
five-part test: (a) the evidence must be[,] in fact, newly
discovered, i.e., discovered since trial; (b) facts must be alleged
from which the court may infer diligence on the part of the
movant; (c) evidence relied on[ ] must not be merely
cumulative or impeaching; (d) it must be material to the issues
involved; and (e) it must be such, and of such nature, as that,
on a new trial, the newly discovered evidence would probably
produce an acquittal.” United States v. Jasin, 280 F.3d 355,
361 (3d Cir. 2002) (alterations in original) (quoting United
States v. Iannelli, 528 F.2d 1290, 1292 (3d Cir. 1976)).

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falsified medical records or agreed to solicit illegal kickbacks.
Chu claimed that this testimony was inconsistent with
Calvanico’s trial testimony here, thereby directly challenging
Calvanico’s credibility and casting doubt on the government’s
case.
The District Court rejected Chu’s motion because Chu
had access to the payroll records at least five months before
trial, when the government produced to Chu the wage report as
a trial exhibit. The District Court concluded that the payroll
fraud evidence was therefore not “newly discovered,” as it was
“known or could have been known by the diligence of” Chu or
her counsel. United States v. Bujese, 371 F.2d 120, 125 (3d
Cir. 1967). In light of the government’s disclosure, the District
Court properly exercised its discretion in concluding the
evidence was not newly discovered.
The District Court also concluded that Calvanico’s
deposition testimony from another matter was merely
impeaching. Moreover, the District Court reviewed “the
substantial additional evidence admitted at trial [that] both
corroborated Calvanico’s testimony and provided independent
proof to support Defendant’s health care fraud convictions”
and concluded that, in light of such evidence, the impeachment
material would be unlikely to affect the outcome of a new trial.
Appx. 1341. The District Court’s review of this claim and the
evidence against Chu, again, provides no basis to find an abuse
of discretion.
Finally, Chu also raised an ineffective-assistance-of-
counsel argument in her motion for a new trial, claiming that
her trial counsel failed to engage in plea negotiations, conduct
pre-trial investigation, or advise Chu regarding the likelihood

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of losing at trial. The District Court noted the untimeliness of
raising this argument as a basis for a new trial and explained
that the Third Circuit strongly prefers to review ineffective-
assistance-of-counsel claims in collateral proceedings. This
was a reasonable basis to deny Chu’s motion, the District Court
acted within its discretion, and Chu may raise such a claim later
pursuant to 28 U.S.C. § 2255.
C. Chu’s Legal Sufficiency Challenge
Chu argues that the trial evidence was insufficient to
prove Chu’s knowledge and intent to commit health care fraud.
This issue is unpreserved and we review for plain error. United
States v. Barel, 939 F.2d 26, 37 (3d Cir. 1991). In the context
of the legal sufficiency of evidence, we ask “whether the
government’s method of proving the [crime] … resulted in a
fundamental miscarriage of justice.” Id. Chu fails to meet her
burden. The evidence at trial included testimony by both
Calvanico and Wilson Pinargote, another employee at Chu’s
practice, that Chu instructed them to submit fraudulent claims
because she was short of money; that Chu asked Pinargote not
to show anyone else the spreadsheet tracking drugs ordered and
claims filed; and that Chu did not stop her fraudulent billing
practices even though Pinargote expressed his concern that
they were illegal. Though Chu recites mitigating evidence that
she feels the jury should have weighed differently, this falls
short of meeting her high burden, especially in light of the
ample evidence of her knowledge and intent.
III. Conclusion
For the foregoing reasons, we will affirm the District
Court’s orders and judgment.

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