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United States v. Kudmani

United States District Court, W.D. Kentucky, Louisville Division

March 23, 2017

UNITED STATES OF AMERICA PLAINTIFF
v.
GEORGE KUDMANI DEFENDANT

          MEMORANDUM OPINION AND ORDER

          Joseph H. McKinley, Jr., Chief Judge

         This 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.

         I. BACKGROUND

         On June 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.

         Kudmani 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.

         II. STANDARD OF REVIEW

         A Rule 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).

         Rule 33 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).

         III. DISCUSSION

         A. Motion for Judgment of Acquittal

         1. Unlawful Distribution of Controlled Substances

         Kudmani 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.

         First, 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.

         Second, 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 ...


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