The owner of a portable X-ray business has lost an appeal after arguing that his 2022 conviction should be tossed over the jury’s COVID-19 vaccination status.

A federal jury in April 2022 found Thomas G. O’Lear, of North Canton, Ohio, guilty of defrauding Medicare and Medicaid out of almost $2 million. His company Portable Radiology Services purportedly billed nursing home residents for X-ray services that it did not provide and made false statements to cover up the fraud, authorities said at the time.

A judge in October 2022 sentenced O’Lear to 15 years in prison and ordered him to pay $1,989,490 in restitution to Medicare, Medicaid and two managed care organizations. He later appealed, arguing that the jury was biased, since it did not contain members like him who are unvaccinated against the coronavirus.

However, an appeals court judge rejected the claim on Jan. 8, contending that O’Lear’s right to an impartial jury was not violated.

“Unlike members of a particular race or sex, the unvaccinated do not qualify as the type of ‘distinctive group’ that can trigger Sixth Amendment concerns with excluding a ‘fair cross section of the community’ from the jury pool,” the court order states.

Jurors taking part in the five-day trial were required to be vaccinated, an order put in place amid the height of the pandemic to help prevent disruptions. O’Lear had cited statistics showing significant demographic differences between the vaccinated and unvaccinated, with the latter comprised more of African Americans, those living in rural counties, young adults and individuals who are skeptical of the government. The court rejected these claims, citing previous caselaw.

“Many defendants have likewise argued that the use of voter lists to identify potential jurors disparately affected minorities because their members traditionally registered to vote less frequently than others,” the order noted. “But we and other courts have consistently rejected this claim, so long as the ‘right to register’ to vote was legally and practically ‘open’ to all.”

O’Lear also had challenged the court’s claims that his crimes involved “vulnerable victims,” contending they only impacted Medicare and Medicaid rather than nursing home residents. However, the court rejected these claims, too, noting that the company misused the identities of elderly and dependent long-term care residents to carry out the scheme.

Bloomberg Law first reported news of the decision. You can read more about it here (subscription required):