United States District Court, E.D. Kentucky, Northern Division
MEMORANDUM OPINION AND ORDER
L. BUNNING UNITED STATES DISTRICT JUDGE
matter is before the Court on remand from the United States
Court of Appeals for the Sixth Circuit for reconsideration of
Defendant Paulus's Motion for a New Trial (Doc. # 298).
See (Docs. # 325, 326 and 329).
September 3, 2015, a federal grand jury returned an
Indictment charging Defendant Paulus, a former cardiologist,
with committing healthcare fraud and making false statements,
on the theory that he exaggerated the extent of blockages in
his patients' arteries so he could perform and bill for
medically unnecessary cardiac stent procedures. (Doc. # 1 at 11).
On October 28, 2016, after twenty-three days of trial and
four days of deliberations, a jury convicted Paulus of one
count of health care fraud in violation of 18 U.S.C. §
1347, and ten counts of making false statements relating to
health care matters in violation of 18 U.S.C. §
1035. (Doc. # 276). At the close of the
Government's case, Paulus filed a Motion for Judgment of
Acquittal, the consideration of which was deferred pursuant
to Rule 29(b) of the Federal Rules of Criminal Procedure.
(Doc. # 220). After his conviction, Paulus renewed his Motion
for Judgment of Acquittal (Doc. # 263) and filed the subject
Motion for a New Trial. (Doc. # 298).
March 7, 2017, the Court granted Paulus's Motion for
Judgment of Acquittal, denied the Renewed Motion for Judgment
of Acquittal as moot, and conditionally granted the Motion
for a New Trial. (Docs. # 318 and 319). However, on June 25,
2018, the Sixth Circuit reversed the judgment of acquittal on
appeal and reinstated the jury's verdict, finding that
the Government produced sufficient evidence to support the
guilty verdict. (Doc. # 325). The Sixth Circuit also vacated
the conditional order granting a new trial and remanded for
reconsideration. Id. The mandate issued on July 19,
2018, restoring jurisdiction over the matter in this Court.
the Court's leave, Paulus filed supplemental briefing in
support of his Motion for a New Trial. (Docs. # 332 and 335).
The Government filed its response brief on September 12, 2018
(Doc. # 338), and Paulus filed his reply brief on September
26, 2018 (Doc. # 343). Accordingly, Defendant's Motion
for a New Trial is now ripe for the Court's
consideration. For the reasons set forth herein,
Defendant's motion is denied.
New Trial Standard
trial may be granted pursuant to Rule 33 of the Federal Rules
of Criminal Procedure “if the interest of justice so
requires.” Fed. R. Crim. P. 33. New trial motions
“are disfavored and should be granted with
caution.” United States v. Willis, 257 F.3d
636, 645 (6th Cir. 2001). Generally, a new trial is
unwarranted unless a defendant demonstrates that the verdict
was against the “manifest weight of the
evidence.” United States v. Callahan, 801 F.3d
606, 616 (6th Cir. 2015) (quoting United States v.
Munoz, 605 F.3d 359, 373 (6th Cir. 2010)). See also
United States v. Hughes, 505 F.3d 578, 593 (6th Cir.
2007) (stating that Rule 33 motions “are granted only
in the extraordinary circumstance where the evidence
preponderates heavily against the verdict.”).
standard for a motion for new trial pursuant to Rule 33 of
the Federal Rules of Criminal Procedure is broader than a
motion for acquittal pursuant to Rule 29. United States
v. Ashworth, 836 F.2d 260, 266 (6th Cir. 1988). A motion
for acquittal challenges the sufficiency of the
evidence and examines whether any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt. In contrast, a motion for new
trial under Rule 33 challenges the weight of the
evidence and asks the trial judge to use his or her
independent judgment to assess whether the manifest weight of
the evidence supports the verdict. Id.
to this standard, “[w]hen considering a motion for new
trial based upon the weight of the evidence, district judges
can act in the role of a ‘thirteenth juror' and
consider the credibility of the witnesses and the weight of
the evidence to insure that there is not a miscarriage of
justice.” United States v. Lutz, 154 F.3d 581,
596 (6th Cir. 1998) (citing Ashworth, 836 F.2d at
266). The district court “must weigh the evidence,
compare the opposing poofs, and set aside the verdict if it
is of the opinion that the verdict is against the clear
weight of the evidence.” Woodbridge v.
Dahlberg, 954 F.2d 1231, 1234 (6th Cir. 1992) (internal
citations omitted). However, the district court “should
deny the motion if the verdict is one which could reasonably
have been reached, ” and the jury's verdict
“is not unreasonable simply because different
inferences and conclusions could have been drawn or because
other results are more reasonable.” Id.
“The defendant bears the burden of showing that a new
trial ought to be granted.” United States v.
Seago, 930 F.2d 482, 488 (6th Cir. 1991); United
States v. Cureton, No. 6:14-CR-20-DCR, 2015 WL 3673768,
at *2 (E.D. Ky. June 11, 2015) (internal citations omitted).
A new trial is unwarranted on remand because this Court
conditionally granted the new trial on the same basis that it
granted the acquittal.
upon the procedural posture of this case, determination of
the subject Motion for a New Trial on remand is impacted by
the Sixth Circuit's ruling on the Motion for Judgment of
Acquittal. This Court granted Paulus's Motion for
Judgment of Acquittal upon its finding that “there was
insufficient evidence at the close of the Government's
case-in-chief to support the jury's verdict.” (Doc.
# 318 at 5). Specifically, “the expert testimony and
angiogram evidence at trial failed to prove that degree of
stenosis is an objectively verifiable fact subject
to proof or disproof” but rather “the evidence in
this case established that degree of stenosis is a
subjective medical opinion, incapable of
confirmation or contradiction.” (Doc. # 318 at 16-20)
(emphasis in original) (citing United States v. St.
Mark's Hosp., No. 2:16-cv-304, 2017 WL 237615, at *8
(D. Utah Jan. 19, 2017), rev'd and remanded sub nom.
United States ex rel. Polukoff v. St. Mark's Hosp.,
895 F.3d 730 (10th Cir. 2018)). Accordingly, this Court
concluded that “[b]ecause the degree of stenosis is a
subjective opinion, a reasonable jury could not conclude,
beyond a reasonable doubt, that Dr. Paulus made a false
statement.” (Doc. # 318 at 20). A finding that the
Government failed to prove fraudulent intent was based upon a
similar analysis of the angiogram evidence. Id. at
appeal, the Sixth Circuit reversed the judgment of acquittal
and reinstated the jury's verdict. Pointing to its
decision in United States v. Persaud, 866 F.3d 371
(6th Cir. 2017), which was decided shortly after this
Court's ruling on Paulus's Motion for Judgment of
Acquittal, the Sixth Circuit determined ...