United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING MOTIONS FOR JUDGMENT OF
ACQUITTAL AND NEW TRIAL
H. CLELAND UNITED STATES DISTRICT JUDGE.
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
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.
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)).
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).
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.
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.
Count 1: Drug Conspiracy
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,
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, ...