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United States v. Chalhoub

United States District Court, E.D. Kentucky, Southern Division, London

March 23, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ANIS CHALHOUB, M.D., Defendant.

          MEMORANDUM OPINION & ORDER

          Gregory F. Van Tatenhove United States District Judge.

         This matter is before the Court on a number of Motions in Limine brought by both parties. [R. 98; R. 99; R. 100; R. 107.] As explained further, and for various reasons, the motions will be DENIED and GRANTED as set forth below.

         I

         In June 2016, a Federal Grand Jury returned an Indictment against Anis Chalhoub, M.D. [R. 1.] Chalhoub was charged with one count of health care fraud according to 18 U.S.C. § 1347. [Id.] The Government alleges that, from March 2007 through July 13, 2011, Chalhoub “implanted single chamber and dual chamber permanent pacemakers in patients without sufficient medical need or justification” and “caused claims for medically unnecessary procedures and services to be submitted to healthcare benefit programs.” [Id. at 3.] Chalhoub allegedly “knowingly and willfully” executed this scheme in order to defraud “Medicaid and other government health care benefit programs and private insurers.” [Id. at 4.]

         II

         Motions in limine are utilized to enable more expedient trial practice by resolving particular evidentiary disputes. See Bishop v. Children's Center for Developmental Enrichment, 2011 WL 6752421, at * I (S.D. Ohio Dec. 23, 2011) (citations omitted). Many disputes are not capable of being resolved at this stage, however, because it is difficult to predict all the potential circumstances under which evidence might become valuable and admissible. See Luce v. United States, 469 U.S. 38, 41 (1984). Evidence is only excluded at this stage if it is obviously inadmissible on any potential ground. Jonasson v. Lutheran Child and Family Servs., 115 F.3d 436, 440 (7th Cir. 1997). Unless that high standard is met, admissibility questions should be postponed until trial, id., meaning that denial of a motion in limine does not preclude a party from reasserting that motion during trial. Luce, 469 U.S. at 41.

         Dr. Chalhoub maintains some of the noticed evidence is inadmissible under Federal Rule of Evidence 404(b). Pursuant to that rule, “evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” Fed.R.Evid. 404(b)(1). Nevertheless, the rule goes on to note in relevant part that such evidence “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.R.Evid. 404(b)(2). The Sixth Circuit has adopted a three-part test that courts use to decide whether to admit or exclude evidence under Rule 404(b):

First, the district court must decide whether there is sufficient evidence that the other act in question actually occurred. Second, if so, the district court must decide whether the evidence of the other act is probative of a material issue other than character. Third, if the evidence is probative of a material issue other than character, the district court must decide whether the probative value of the evidence is substantially outweighed by its potentially prejudicial effect.

United States v. Jenkins, 345 F.3d 928, 937 (6th Cir. 2003) (emphasis in original); see also United States v. Yu Qin, 688 F.3d 257, 262 (6th Cir. 2012).

         Notably, Rule 404(b) “does not extend to evidence of acts which are ‘intrinsic' to the charged offense.” Fed.R.Evid. 404 advisory committee's note. Put another way, “Rule 404(b) is not implicated when the other crimes or wrongs evidence is part of a continuing pattern of illegal activity.” United States v. Weinstock, 153 F.3d 272, 276 (6th Cir. 1998) (quoting United States v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995)). Ultimately, this Court has broad discretion to determine whether bad acts evidence is admissible. See, e.g., United States v. Stout, 509 F.3d 796, 799 (6th Cir. 2007).

         A

         As a preliminary matter, not all of these matters can be handled at this stage. “Orders in limine which exclude broad categories of evidence should rarely be employed. A better practice is to deal with questions of admissibility of evidence as they arise.” Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). Some motions to exclude evidence have been mooted and some are not fully briefed. Also, this Court cannot rule on hypothetical situations, which both parties rely on significantly in their motions.

         First, Chalhoub asks this Court to exclude “rumors about excessive procedures.” [R. 98-1 at 8.] Rumors are certainly inadmissible pursuant to the rule against hearsay. Fed.R.Evid. 802. However, in their response, the Government predictably argues that they are not seeking to admit any rumors. This Court can't rule on hypothetical situations and declines to issue a ruling here.

         Second, Chalhoub seeks to exclude testimony regarding an indicia of fraud. [R. 98-1 at 14.] The United States responded that it “does not intend to call a law enforcement witness for this purpose, so this issue is moot.” [R. 104 at 13.] Accordingly, this issue is denied as moot.

         Third, Dr. Chalhoub objects to categorizing the Executive Health Resources (EHR) Review as a peer review. [R. 98-1 at 14.] Dr. Chalhoub doesn't seem to argue that the review is inadmissible, only that it shouldn't be categorized as a peer review. [See id.] The Government responded that it doesn't intend to present the review as a “peer review” or a “professional ...


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