United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT'S MOTION FOR JUDGMENT OF
ACQUITTAL, FOR NEW TRIAL, OR TO DISMISS
D. BORMAN, UNITED STATES DISTRICT JUDGE
January 22, 2018 Defendant Arthur Rathburn was found guilty
by a jury of seven counts of wire fraud, 18 U.S.C.
§1343, (Counts 1, 2, 3, 6, 7, 8, 9) and one count of
illegal transportation of hazardous material (Count 10).
Rathburn was acquitted on Counts 4 and 5 (wire fraud) and
Count 13 (False Statement). The Court dismissed Count 12 at
the conclusion of the trial. The Government chose to not
proceed with Count 11.
February 19, 2018, Defendant filed the above-styled Motion.
On March 13, 2018, the Government filed a Response.
Rule of Criminal Procedure 29(c)(1) provides for the filing
of a Motion for Judgment of Acquittal to set aside a jury
verdict. Federal Rule of Criminal Procedure 33 provides for
the filing of a Motion for a New Trial on newly discovered
evidence or any other ground in the interest of justice.
moves this Court to grant relief (acquittal, new trial,
dismiss the counts of conviction) because:
A. There was insufficient evidence to support the jury's
verdict on each count he was convicted of, and the verdicts
are against the great weight of the evidence,
B. The convictions violate Rathburn's due process rights
under the Fifth Amendment,
C. The trial court's rulings deprived Rathburn of his
constitutional right of confrontation, to present a defense,
and right to trial by jury.
Motion, Dkt. #136, P.2.
Fraud Counts 1-3, the government relied on the testimony of
Dr. Samuel Lee, a periodontist, and the documents related to
a course Dr. Lee taught on March 26, 2011, that utilized
human body parts provided by Rathburn, to wit, a specimen
identified as BRCIL 0210002, that had screened reactive for
Hepatitis B. Dr. Lee had ordered head specimens from
Rathburn's business, International Biological, Inc. -
(IBI). Dr. Lee's contact person and his correspondence
with IBI was with Beth Rathburn, Defendant's then-wife,
and his employee Jeanette Knutson. The Service Agreement,
drafted by IBI set forth that the anatomical materials
provided had been screened for HIV½, surface antigen,
Hepatitis B and Hepatitis C virus antibody. The Material
Request Form (MRF) drafted by IBI stated that the anatomical
materials were procured under “clean, ” not
“sterile” conditions and tested for HIV,
Hepatitis A, B and C, and also noted the above-mentioned
Counts 6, 7, 8, and 9 related to Dr. Kevin Vorenkamp and his
course held in Washington, D.C. in October, 2012, and the
specimen identified as BRC 2011005. Dr. Vorenkamp was an
anesthesiologist and director of a pain medicine training
program in Seattle, Washington. His interpretation of the
Service Agreement with IBI was that the specimens would be
screened for HIV, Hepatitis B and C, and he expected that the
cadavers would not have had positive results for those
10, charged Defendant with illegal transportation of
hazardous material. This dealt with a shipment of human heads
in violation of U.S. Department of Transportation-regulated
(DOT) hazardous substances. The transit permit (Exh. 23A)
“indicated the cause of death” of one of the
heads was “aspirational pneumonia, bacteria not
identified and sepsis, bacterial (sic) not identified.”
R. 129, Pg. ID 1131, Dkt. #136, Gov't Brief, P.8).
Defendant contends that the documents provided by BRC, the
provider of the head to Defendant's IBI “stated
that the cause of death was Parkinson's disease and
respiratory failure, without any mention of sepsis or
pneumonia.” Id. At Pp. 8-9. Defendant further
contends that “there was no serology test for sepsis
performed at the time of death for the specimen. There was no
test of the specimen BRC 1006024 for any infectious virus or
bacteria once DOT took possession of it.” Id.
Counts One through Three, Dr. Lee testified that he had
received a specimen identified as BRCIL 0210002(02) that had
tested positive for Hepatitis B. IBI had provided Dr. Lee 16
head specimens, which included the 02 specimen.
noted supra, the IBI Service Agreement stated,
inter alia, that “unless otherwise expressly
set forth on the MRF, the anatomical materials to be provided
hereunder will have been screened for HIV½, surface
antigen, Hepatitis B and Hepatitis C virus antibody . .
.”. Dr. Lee testified that he interpreted that to mean
that he would not get a specimen that had tested positive for
HIV, Hepatitis A, B and C. R. 127, TR. 1/11/18, Page ID
Material Request Form (MRF), as noted supra, which
was part of the Application for Anatomical Materials provided
that the anatomical materials were procured under
“clean” not “sterile” conditions and
tested for HIV, Hepatitis A, B and C (Government Exhibit 12E,
Appendix Exhibit B).
contends that it was improper for Dr. Lee to interpret these
provisions to mean that he would not receive specimens
infected with these diseases. The Court disagrees with
Defendant's argument. Screen means screen out: like
putting a screen on your window to keep out mosquitos. If it
was just screening for IBI's in house purposes, there
would be no reason to put it in the Service Agreement.
regard to the provision in the MRF Form, Page 3, that the
anatomical materials “are procured under ‘clean,
' not ‘sterile' conditions, Defendant cites Dr.
Lee's testimony that “clean” is a very
subjective term, and contends that “clean” not
“sterile” is a vague, subjective term - that Dr.
Lee interpreted thee photos of the hygiene state of the
Grinnell Street Warehouse according to his standard, and this
is too subjective to support testimony regarding sanitary
conditions. The Court concludes that Dr. Lee's opinion
testimony was admissible as to what the photographs revealed,
and further that the photographs of the conditions were
provided to the jury for their determination of whether that
contract provision language - clean, not sterile - was met.
claims with regard to Counts Six, Seven, Eight and Nine
related to anesthesiologist Dr. Kevin Vorenkamp's use of
IBI contracted specimens. Dr. Vorenkamp interpreted the
MRF's screening language to mean that the part that the
anatomical specimens he received would have been screened for
HIV, Hepatitis B and Hepatitis C, and that meant to him that
he could expect they would not have tested positive for those
diseases. The Court concurs with his logical interpretation.
Further, the invoice for 2011005 from IBI's supplier BRC
to IBI evidenced a discount because the specimen had tested
Count Ten, regarding the transportation into this country of
hazardous materials, Defendant contends while that specimen
BRC 1006024 had a transit permit (Gov't Exh. 23A) which
indicated that the cause of death was aspirational pneumonia
bacteria not identified and Sepsis bacterial not identified,
BRC had provided documents stating that the cause of death
was Parkinson's disease and respiratory failure. The
Court finds the transit permit, that was placed into evidence
before the jury was satisfactory evidence of the medical
condition of that specimen, to support the conviction on
fraud counts were based upon human specimens that had tested
positive for HIV and Hepatitis B, and had been provided by
IBI to the end user doctors without disclosing the positive
results of the screening.
contends that the end users received specimens, completed
their courses without any injury to the doctors or their
students, so there was no material misrepresentation of a
material fact. The Court disagrees. There was fraud in
Defendant passing off diseased specimens as not diseased, as
the doctors had requested, expected, and were entitled to
under the contract. The fact that neither of the doctors or
their students contracted any diseases, does not absolve
Defendant, after agreeing to provide specimens screened for
diseases, of being guilty of fraudulently providing diseased
specimens under the IBI contracts.
noted supra, the IBI Material Request Form (MRF) for
specimens to be used in each of the medical courses ...