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United States v. Paulus

United States District Court, E.D. Kentucky, Northern Division

November 14, 2018

UNITED STATES OF AMERICA PLAINTIFF
v.
RICHARD E. PAULUS, M.D. DEFENDANT

          MEMORANDUM OPINION AND ORDER

          DAVID L. BUNNING UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This 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).

         On 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.[1] (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.[2] (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).

         On 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.

         With 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.

         II. ANALYSIS

         A. New Trial Standard

         A new 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.”).

         The 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.

         Pursuant 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).

         B. A new trial is unwarranted on remand because this Court conditionally granted the new trial on the same basis that it granted the acquittal.

         Based 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 32.

         On 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 ...


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