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United States v. Daneshvar

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

July 5, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DR. GERALD DANESHVAR, Defendant.

          MEMORANDUM AND ORDER DENYING DEFENDANT'S MOTION FOR NEW TRIAL (DOC. 82) [1]

          AVERN COHN UNITED STATES DISTRICT JUDGE

         I. Introduction

         This is a criminal case. Defendant was convicted by a jury of conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1349.

         Before 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.

         II. Background

         The 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 process.

         The fraud was occasioned by the doctors over-billing for their services, and sometimes billing for services not rendered, as well as unnecessary tests.

         III. Legal Standard

         Federal 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.

         IV. Discussion

         A.

         The 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.

         Further, 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 ...

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