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United States v. Kudmani

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

July 11, 2017



          Joseph H. McKinley, Jr., United States District Chief Judge

         This matter is before the Court on a motion by Defendant, George Kudmani, to grant him release on bond pending the resolution of his appeal [DN 280]. Fully briefed, 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.

         Following the jury's verdict, Defendant filed a motion to set aside the guilty verdicts and enter a judgment of acquittal on all the counts 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 moved for a new trial because the jury's verdict was against the weight of the evidence and the interests of justice. The Court denied the motion.

         The Court conducted a sentencing hearing on June 5, 2017. After addressing various objections and issues related to the sentencing, the Court sentenced Defendant to 48 months in prison and is scheduled to report to the Bureau of Prisons on July 13, 2017. Defendant filed a notice of appeal on June 16, 2017. He now moves for release pending appeal pursuant to 18 U.S.C. § 3145(c).


         Pursuant to 18 U.S.C. § 3143(b)(2), a defendant found guilty of a violation of the Controlled Substance Act shall “be detained.” Defendant Kudmani was convicted of such an offense. Title 18 U.S.C. § 3145(c) establishes an exception to the mandatory detention provision of § 3143(b)(2). This exception enables individuals who have met the conditions for release outlined in 18 U.S.C. § 3143(b)(1) be released for “exceptional reasons.” 18 U.S.C. § 3145(c). Specifically, the statute provides that “[a] person subject to detention pursuant to section 3143(a)(2) or (b)(2), and who meets the conditions of release set forth in section 3143(a)(1) or (b)(1), may be ordered released, under appropriate conditions, by the judicial officer, if it is clearly shown that there are exceptional reasons why such person's detention would not be appropriate.” 18 U.S.C. § 3145(c). Thus, to overcome mandatory detention, Defendant must establish the presence of exceptional reasons that make detention inappropriate, as well as make two showings pursuant to § 3143(b)(1): (1) by clear and convincing evidence that he is not likely to flee or pose a danger to the safety of any other person or the community, and (2) that his appeal is not for the purposes of delay and raises a substantial question of law or fact likely to result in reversal, an order for a new trial, a sentence that does not include a term of imprisonment, or a reduced sentence to a term of imprisonment less than the total of time served plus the expected duration of the appeal process. 18 U.S.C. § 3143(b)(1); see United States v. Sypher, 2011 WL 1314669, *1 (W.D. Ky. April 1, 2011); United States v. Mullet, 2013 WL 8367565, at *1 (6th Cir. July 24, 2013); United States v. Eaton, 2013 WL 5328212, at *2 (W.D. Ky. Sept. 20, 2013). The Defendant bears the burden of showing that these conditions are met. Id.


         A. Risk of Flight or Danger to Others

         The clear and convincing evidence establishes that Defendant is not likely to flee or pose a danger to the safety of other persons or to the community. The record reflects that Defendant has complied with the conditions governing his pretrial release for over four years. He has a home in Louisville, Kentucky, where he has lived for 40 years. Defendant is married with three adult children. Upon the execution of the search warrant in this matter, Defendant surrendered his medical and DEA licenses ensuring that there is no danger that he will further offend while his case is on appeal. Finally, the United States did not contest this issue.

         B. Substantial Question of Law or Fact

         Defendant argues that his appeal raises substantial questions of law or fact, specifically: (1) the jury instructions regarding good faith that was requested by the defense was not given at trial; (2) many evidentiary and instructional issues are unclear in this developing area of law in which trafficking charges are used against doctors; and (3) the case had substantial motion practice before the two trials and many objections during trial.

         An appeal raises a “substantial question” of law or fact when it presents a “close question or one that could go either way.” United States v. Pollard, 778 F.2d 1177, 1182 (6th Cir. 1985) (citing United States v. Powell, 761 F.2d 1227, 1233-34 (8th Cir. 1985)). See also Sypher, 2011 WL 1314669, *1. A substantial question is “‘one which is either novel, which has not been decided by controlling precedent, or which is fairly doubtful.'” United States v. Roth, 642 F.Supp.2d 796, 798 (E.D. Tenn. 2009)(quoting United States v. Miller, 753 F.2d 19, 23 (3d Cir. 1985)). The question must be “so integral to the merits of the conviction that it is more probable than not that reversal or a new trial will occur if the question is decided in the defendant's favor.” Pollard, 778 F.2d at 1182. “[T]he Sixth Circuit has held that 18 U.S.C. § 3143(b)(1)(B) ‘does not require the district court to find that it committed reversible error' for it to find that the appeal raises a ...

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