United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR
JUDGMENT OF ACQUITTAL AND SECOND MOTION FOR NEW
H. CLELAND UNITED STATES DISTRICT JUDGE.
the court are two motions filed by Defendant Adelfo Pamatmat.
Following his conviction for conspiracy to distribute
controlled substances and health care fraud conspiracy,
Defendant filed his Motions for New Trial (Dkt. # 1180) and
for Judgment of Acquittal (Dkt. # 1181) on July 16, 2015. The
court denied Defendant's Motion for New Trial in its
opinion and order entered September 4, 2015. (Dkt. # 1259.)
Defendant subsequently filed his Second Motion for New Trial
on October 13, 2016. (Dkt. # 1538.) The motions are fully
briefed and a hearing was held on May 18, 2017. For the
reasons that follow, the court will deny both motions.
is a medical doctor who did contract work with Compassionate
Doctors, P.C. (“Compassionate”). (Dkt. # 1164,
Pg. ID 8160.) Defendant, along with numerous other doctors,
pharmacists, and others, was charged with various offenses
relating to a conspiracy to illegally distribute large
quantities of prescription pain medication on March 20, 2013.
(Dkt. # 187.) In particular, Defendant was charged with one
count of conspiracy to distribute controlled substances under
21 U.S.C. §§ 841(a)(1) and 846 and one count of
health care fraud conspiracy under 18 U.S.C. §§
1347 and 1349. On July 2, 2015, Defendant was convicted of
all counts. (Dkt. # 1160.) Shortly after, Defendant timely
filed the instant motions.
court may enter a judgment of acquittal if the evidence
presented at trial is insufficient to support a conviction.
Fed. R. Crim. P. 29. “In reviewing challenges regarding
the sufficiency of the evidence presented to the jury, [the
court is] limited to ascertaining whether, viewing the
evidence in the light most favorable to the government,
any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt.'” United States v. Carmichael, 232
F.3d 510, 519 (6th Cir. 2000) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (emphasis in
original); citing United States v. Talley, 164 F.3d
989, 996 (6th Cir. 1999)). A court must therefore “draw
all available inferences in favor of the jury's
verdict.” United States v. Maliszewski, 161
F.3d 992, 1006 (6th Cir. 1998) (citing United States v.
Smith, 39 F.3d 119, 121 (6th Cir. 1994)). Moreover,
“‘[s]ubstantial and competent' circumstantial
evidence by itself may support a verdict and need not
‘remove every reasonable hypothesis except that of
guilt.'” United States v. Lee, 359 F.3d
412, 418 (6th Cir. 2004) (quoting United States v.
Stone, 748 F.2d 361, 363 (6th Cir. 1984)). Thus,
“[a] defendant bringing such a challenge bears a
‘very heavy burden.'” United States v.
Daniel, 329 F.3d 480, 485 (6th Cir. 2003) (quoting
United States v. Vannerson, 786 F.2d 221, 225 (6th
allows the court to “vacate any judgment and grant a
new trial if the interest of justice so requires.” Fed.
R. Crim. P. 33(a). The Sixth Circuit gives trial courts broad
discretion in determining whether to grant a new trial
pursuant to Rule 33 because “‘[t]he trial judge
is in the best position to determine . . . appropriate
remedies for any demonstrated misconduct.'”
United States v. Wheaton, 517 F.3d 350, 361 (6th
Cir. 2008) (quoting Unite States v. Copeland, 51
F.3d 611, 613 (6th Cir. 1995)). When a defendant rests his
argument for a new trial on the basis of cumulative error, he
must show that the “combined effect of individually
harmless errors was so prejudicial as to render his trial
fundamentally unfair.” United States v.
Trujillo, 376 F.3d 593, 614 (6th Cir. 2004) (citing
United States v. Parker, 997 F.2d 219, 221 (6th Cir.
1993)) (finding only harmless error when a trial judge
admitted hearsay statements of government agents); see
also Wheaton, 517 F.3d at 361 (affirming a denial of a
motion for new trial because no prejudice resulted from
juror's misconduct in which the juror looked at a map to
determine the distance between two towns).
challenges both of his conspiracy convictions: (1) conspiracy
to distribute controlled substances under 21 U.S.C.
§§ 841(a)(1) and 846; and (2) health care fraud
conspiracy under 18 U.S.C. §§ 1347 and 1349.
Defendant makes the same argument for both counts: the
government failed to offer sufficient evidence to demonstrate
beyond a reasonable doubt that Defendant was aware of and
intentionally entered such conspiracies. (Dkt. # 1181, Pg. ID
8586.) The court disagrees.
establish a drug conspiracy, the government must prove (1) an
agreement to violate the drug laws, (2) knowledge of and
intent to join the conspiracy, and (3) participation in the
conspiracy. United States v. Sanchez, 928 F.2d 1450,
1457 (6th Cir. 1991). The government need not prove the
existence of a formal agreement to establish a conspiracy -
proof of a tacit understanding among the parties is
sufficient. United States v. Bavers, 787 F.2d 1022,
1026 (6th Cir. 1985). "A conspiracy may be inferred from
circumstantial evidence that can reasonably be interpreted as
participation in the common plan." Id. at 1026
(citing United States v. Strong, 702 F.2d 97 (6th
Cir. 1983); United States v. Mendez, 496 F.2d 128
(5th Cir. 1974)). The government is not required to prove an
overt act in furtherance of the conspiracy under section
1346. U.S. v. Patel, 579 Fed.Appx. 449, 460 (6th
Cir. 2014) (citing United States v. Shabani, 513
U.S. 10, 15 (1994)).
person who conspires to commit health care fraud may be
convicted of a federal offense under 18 U.S.C. § 1349.
An individual commits health care fraud by “knowingly
and willfully execut[ing] or attempt[ing] to execute a scheme
or artifice . . . to defraud any health care benefit
program or . . . to obtain by means of false or fraudulent
pretenses, representations, or promises, any of the money or
property owned by, or under the custody or control of, any
health care benefit program, in connection with the delivery
or payment for health care benefits, items, or
services.” 18 U.S.C. § 1347(a). A person who
commits health care fraud “need not have actual
knowledge” of the statute forbidding the conduct
“or specific intent to commit a violation” of the
statute. 18 U.S.C. § 1347(b). To establish a health care
fraud conspiracy under section 1349, the government must
prove an agreement between two or more people to act together
to commit the offense. Patel, 579 Fed.Appx. at
460-61 (citing United States v. Rogers, 769 F.2d
372, 379-82 (6th Cir. 2014)).
linking Defendant to the drug and medicare fraud conspiracy
abounds. Defendant indisputably worked for Compassionate, the
locus of the conspiracy. (Dkt. # 1181, Pg. ID 8583.) Dr. Ravi
Iyer testified that he and Defendant sat in the conference
room at Compassionate together and signed stacks of charts
(Dkt. # 1556, Pg. ID 15939-40.) Tiffany Walker testified that
Defendant held “patient parties” in her home that
resulted in illegal controlled substance prescriptions and
fraudulent billings. (Dkt. # 1122, Pg. ID 6590-92.)
Walker's testimony was corroborated by surveillance
officers who witnessed a patient attending a patient party in
Detroit, which Defendant billed as a more expensive visit to
the patient's home in Harper Woods. (Dkt. # 1556, Pg. ID
16087-95.) Javar Myatt-Jones testified that Defendant
received illegal cash payments for signing charts and blank
prescriptions for patients he had not actually examined.
(Dkt. # 1125, Pg. ID 7029-36, 7160-62.) In fact, Myatt-Jones,
while acting undercover, recorded Defendant discussing this
conduct. (Id.) After he was arrested and read his
Miranda rights, Defendant orally confessed to his
involvement in the conspiracy, including that he had written
illegitimate controlled substance prescriptions. (Dkt. #
1453, Pg. ID 12832-38.) This evidence is more than sufficient
for a reasonable jury to conclude beyond a reasonable doubt
that Defendant participated in scheme with other doctors and
employees at Compassionate to write bogus prescriptions and
relies heavily on evidence that he was paid only $20, 000 in
checks from Sardar Ashrafkhan. (Dkt. # 1181, Pg. ID 8587.)
But conspiracy convictions do not require conspirators to
have received any particular share of the illicit proceeds.
Patel, 579 Fed.Appx. at 460-61 (describing the
elements of drug and health care fraud conspiracy). Further,
the jury heard testimony that Defendant received cash
payments for signing charts and blank prescriptions for