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United States v. Ashrafkhan

United States District Court, E.D. Michigan, Southern Division

June 29, 2017




         Defendant Sardar Ashrafkhan was convicted by jury trial of conspiracy to distribute controlled substances, health care fraud conspiracy, and money laundering. (Dkt. # 1158.) Before the court are three motions filed by Defendant Sardar Ashrafkhan. Defendant filed his Motion for Judgment of Acquittal on June 29, 2015. (Dkt. # 1144.) Following his conviction, Defendant filed a Renewed Motion for Judgment of Acquittal (Dkt. # 1164) and a Motion for New Trial (Dkt. # 1165) on July 9, 2015, substituted with a Supplemented Motion for a New Trial (Dkt. # 1247) filed on August 27, 2015. The motions for judgment of acquittal are fully briefed, the government having responded orally at the sentencing hearing with regard to the motion for new trial. For the reasons stated at the sentencing hearing and those below, the court denies both motions.

         I. BACKGROUND

         Defendant was a medical doctor who owned and operated 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; one count of health care fraud conspiracy under 18 U.S.C. §§ 1347 and 1349; and two counts of money laundering under 18 U.S.C. §§ 1957. On July 2, 2015, Defendant was convicted of all counts. (Dkt. # 1158.) Shortly after, Defendant timely filed the instant motions.

         II. STANDARD

         The 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)) (internal quotation marks omitted). 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 Cir. 1986)).

         Rule 33 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).


         Defendant argues that he is entitled to judgment of acquittal on the conspiracy charges because the government provided insufficient evidence at trial that “Defendant was even aware of the conspiracy when it was occurring, much less that he intended to join it, or even less, that he did join it. (Dkt. # 1164, Pg. ID 8160 (double emphases in original).) Defendant apparently does not challenge his conviction for money laundering. In addition, Defendant argues that he is entitled to a new trial because the government “committed prosecutorial misconduct during the closing and rebuttal arguments by misstating material evidence . . . and purporting facts that were not introduced evidence, which were prejudicial to Defendant.” (Dkt. # 1247, Pg. ID 9771.) Each argument will be addressed in turn.

         A. Conspiracy

         Defendant challenges both 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: that the government failed to offer sufficient evidence to demonstrate beyond a reasonable doubt that Defendant was aware of and intentionally entered such conspiracies. The court disagrees.

         1. Count 1: Drug Conspiracy

         To 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 § 1346. U.S. v. Patel, 579 Fed.Appx. 449, 460 (6th Cir. 2014) (citing United States v. Shabani, 513 U.S. 10, 15 (1994)).

         Evidence of this kind of "tacit understanding" abounds. Defendant owned Compassionate, the locus of the conspiracy. For instance, Verdell Lovett, a marketer paid by Defendant, testified that Defendant knew Lovett was selling Oxycontin pills on the street. (Dkt. # 1122, Pg. ID 6571.) Specifically, Lovett testified that Defendant did not want to pay Lovett for the therapy services Lovett provided patients because Defendant knew that all of those patients were also on Oxycontin and Lovett was making money selling the Oxycontin pills on the street. (Dkt. # 1120, Pg. ID 6322.) In a recording played at trial, ...

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