United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING DEFENDANT'S MOTION
FOR NEW TRIAL (DOC. 82) 
COHN UNITED STATES DISTRICT JUDGE
a criminal case. Defendant was convicted by a jury of
conspiracy to commit health care fraud, in violation of 18
U.S.C. § 1349.
the Court is defendant's motion for a new trial because
the Court did not admit three pieces of evidence which
defendant says were crucial to his defense. The defendant
says this denied him the right to a fair trial. As will be
explained, the evidence proffered was properly excluded.
Accordingly, defendant's motion is DENIED.
proofs at trial displayed a multi-person conspiracy involving
Mobile Doctors at its center. Mobile Doctors and doctors
including defendant and employees provided medical services
to homebound patients. The doctors who rendered the medical
services were paid by the government as part of the Medicare
and Medicaid program. The doctors assigned their rights to
payment to Mobile Doctors, which collected from the
government, and in turn paid the doctors. All of this
activity was reflected in a paper trail. Attached as Exhibit
A is a chart explaining the Mobile Doctors' billing
fraud was occasioned by the doctors over-billing for their
services, and sometimes billing for services not rendered, as
well as unnecessary tests.
Rule of Criminal Procedure 33 governs a criminal
defendant's motion for a new trial, which permits a
district court to “vacate any judgment and grant a new
trial if the interest of justice so requires.” Fed. R.
Crim. P. 33(a). “The rule does not define interest of
justice and the courts have had little success in trying to
generalize its meaning.” United States v.
Munoz, 605 F.3d 359, 373 (6th Cir. 2010). Nevertheless,
“it is widely agreed that Rule 33's ‘interest
of justice' standard allows the grant of a new trial
where substantial legal error has occurred, ” including
“reversible error or violation of the defendant's
substantial rights.” Id. at 373-374.
first piece of evidence defendant says should have been
admitted was an email exchange between the office manager of
the Southfield, Michigan, office of Mobile Doctors and the
owner of the company in Chicago. This piece of evidence was
the subject of a memorandum by defendant (Doc. 72), and
discussed in the record (Tr., Vol. 6, pp. 6-12).
Particularly, the office manager was telling the owner that
the employee doctors were “kept in the dark”
about the over-billing for the services the doctors rendered.
The e-mail exchange was hearsay. It was not a business
record, but rather a form of conversation. There was no
evidence that defendant knew of the conversation. As such, it
was properly excluded.
as pointed out by the government in its brief in opposition
to the motion:
The evidence clearly showed that the defendant knew his
visits did not qualify for the 40-minute visit codes, but he
knew he was paid at only the top two codes because he
received a paycheck chart * * * with each paycheck ...