United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
H. McKinley, Jr., Chief Judge
matter is before the Court on a motion by Defendant, George
Kudmani, for judgment of acquittal pursuant to Fed. R. Crim.
P. 29(c), or in the alternative, for a new trial pursuant to
Fed. R. Crim. P. 33 [DN 256]. Fully briefed and argued, this
matter is ripe for decision.
7, 2016, the United States charged Defendant, George Kudmani,
in a Second Superseding Indictment with 19 counts of unlawful
distribution of controlled substances, two counts of health
care fraud resulting in the death of a patient, seven counts
of health care fraud for unlawful billing of transvaginal
ultrasounds, and one count of money laundering. On January
26, 2017, the jury found Kudmani guilty of 19 counts of
unlawful distribution of controlled substances pursuant to 21
U.S.C. § 841 and seven counts of health care fraud
pursuant to 18 U.S.C. § 1347. The jury returned not
guilty verdicts on the remaining counts.
now moves this Court to set aside the guilty verdicts and
enter a judgment of acquittal on all the counts. At the end
of the Government's case and again at the close of the
evidence, Defendant moved pursuant to Fed. R. Crim. P. 29 for
a judgment of acquittal. Defendant again renews his motion
for judgment of acquittal arguing that (1) the Court did not
properly instruct the jury on Kudmani's “good
faith” in distributing controlled substances and
performing transvaginal ultrasounds (“TVUs”) and
(2) the evidence was insufficient to convince any rational
trier of fact that Kudmani was not acting, at all times, in
good faith in the treatment of his patients. Alternatively,
Kudmani moves for a new trial pursuant to Fed. R. Crim. P. 33
because the jury's verdict was against the weight of the
evidence and the interests of justice.
STANDARD OF REVIEW
29 motion for judgment of acquittal “is a challenge to
the sufficiency of the evidence.” United States v.
Jones, 102 F.3d 804, 807 (6th Cir. 1996).
“Evidence is sufficient to support a criminal
conviction if, after viewing the evidence in the light most
favorable to the government, any rational trier of fact could
have found the elements of the crime beyond a reasonable
doubt.” United States v. Beddow, 957 F.2d
1330, 1334 (6th Cir. 1992)(citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979); see also United
States v. Humphrey, 279 F.3d 372, 378 (6th Cir. 2002));
United States v. Harrod, 168 F.3d 887, 889-90 (6th
Cir. 1999). “In ruling on a sufficiency of the evidence
challenge, the Court does not weigh the evidence, assess the
credibility of the witnesses, or substitute its judgment for
that of the jury.” United States v. Cannady,
2006 WL 1718193, *2 (E.D. Ky. June 21, 2006).
provides that “[u]pon the defendant's motion, the
court may vacate any judgment and grant a new trial if the
interest of justice so requires.” Fed. R. Crim. P.
33(a). The decision of whether to grant a new trial is
committed to the “sound discretion of the trial
judge.” United States v. Barlow, 693 F.2d 954,
966 (6th Cir. 1982); United States v. Pierce, 62
F.3d 818, 823 (6th Cir. 1995). When presented with a Rule 33
motion, the district court may weigh the evidence and assess
the credibility of the witnesses. “It has often been
said that he/she sits as a thirteenth juror.”
United States v. Solorio, 337 F.3d 580, 589 n. 6
(6th Cir. 2003) (internal citations omitted). However,
“new trial motions are disfavored and should be granted
with caution.” United States v. Willis, 257
F.3d 636, 645 (6th Cir. 2001) (citation omitted). The trial
court should exercise this discretion “only in the
extraordinary circumstances where the evidence preponderates
heavily against the verdict.” United States v.
Ashworth, 836 F.2d 260, 266 (6th Cir. 1988). The
Defendant bears the burden of proving that a new trial should
be granted. United States v. Davis, 15 F.3d 526, 531
(6th Cir. 1994); United States v. Turner, 995 F.2d
1357, 1364 (6th Cir. 1993).
Motion for Judgment of Acquittal
Unlawful Distribution of Controlled Substances
argues that a judgment of acquittal on Counts 1 through 19 is
warranted because the jury was not properly instructed that
lack of good faith is one of the elements the United States
had to prove with respect to the unlawful distribution of
controlled substances counts. The Court disagrees.
a violation of the Controlled Substance Act
(“CSA”), 21 U.S.C. § 841, “occurs when
a physician dispenses or distributes a controlled substance
in a manner that is not authorized by law-i.e., the
prescription is issued without ‘a legitimate medical
purpose by an individual practitioner acting in the usual
course of his professional practice.'” United
States v. Volkman, 797 F.3d 377, 392 (6th Cir.
2015)(quoting 21 U.S.C. § 841(a)(1)); 21 C.F.R. §
1306.04(a); see also United States v. Kirk, 584 F.2d
773, 784 (6th Cir. 1978). The United States must also
demonstrate that the practitioner acted with intent to
distribute the drugs and with intent to distribute them
outside the course of professional practice. United
States v. Chube II, 538 F.3d 693 (7th Cir. 2008). Good
faith is a defense to unlawful distribution of a controlled
substance; it is not an element of the crime.
the jury instructions given by the Court were proper. The
Court generally “‘may reverse a judgment based on
an improper jury instruction only if the instructions, viewed
as a whole, were confusing, misleading, or
prejudicial.'” United States v. Morrison,
594 F.3d 543, 546 (6th Cir. 2010)(quoting United States
v. Harrod, 168 F.3d 887, 892 (6th Cir. 1999) (internal
quotation marks omitted)). Instruction No. 2 properly
instructed the jury regarding the elements of a 21 U.S.C.
§ 841(a)(1) offense and defined the terms dispense,
practitioner, knowingly, deliberate ignorance, and usual
course of professional practice. The Court then gave a
separate good faith instruction in Instruction No. 3 similar
to the instruction given in United States v.
Volkman, 797 F.3d 377, 392 (6th Cir. 2015). Instruction
No. 3 specifically instructed the jury that “[i]f a
physician dispenses a drug in good faith in the course of
medically treating a patient, then the doctor has dispensed
the drug for a legitimate medical purpose in the usual course
of accepted medical practice.” (Jury Instructions at
11, DN 252.) Further, the instruction provided that
“[t]he Defendant does not have to prove to you that ...