United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE, UNITED STATES DISTRICT JUDGE
matter is before the Court on the Defendant's motion for
release pending appeal. [R. 191.] Because he has not
adequately raised a substantial question of law or fact
likely to result in reversal, this motion must be
DENIED. See 18 U.S.C. §
Chalhoub was charged in June 2016 with one count of health
care fraud pursuant to 18 U.S.C. § 1347. [R. 1.]
According to the indictment, from March 2007 until July 13,
2011, Dr. Chalhoub executed a scheme to defraud health care
benefit programs. See id.
the course of the trial, the Government presented evidence
seeking to prove that Dr. Chalhoub “implanted single
chamber and dual chamber permanent pacemakers in patients
without sufficient medical need or justification.” [R.
1 at 3.] They called several cardiologists, who either
reviewed the Government's files or treated Dr.
Chalhoub's patients. [R. 161 at 2.] They also called
witnesses from Medicare, Medicaid, and several private
insurers, who testified on medical necessity as “an
absolute precondition to payment.” [R. 161 at 3.]
Further, twelve of Dr. Chalhoub's former patients
testified about their experiences as his patients. [R. 161 at
4.] The jury found Dr. Chalhoub guilty of the one count
indictment. [R. 134.]
the jury's verdict, Dr. Chalhoub filed post-trial motions
for a judgment of acquittal pursuant to Rule 29 and a motion
for a new trial pursuant to Federal Rule of Criminal
Procedure 33. [R. 150; R. 152.] These requests were denied.
[R. 166.] This Court sentenced Dr. Chalhoub on October 30,
2018 to forty-two months imprisonment followed by three years
of supervised release. [R. 173.] Dr. Chalhoub has appealed
the jury's verdict, and now moves this court for release
pending the outcome of that appeal. [R. 191.]
Bail Reform Act, 18 U.S.C. § 3143(b), creates a
presumption against release pending appeal. United States
v. Vance, 851 F.2d 166, 168 (6th Cir. 1988), cert.
denied, 488 U.S. 893 (1988). In order to be released
pending appeal, a defendant must establish two things: first,
he must show, by clear and convincing evidence, that he is
not likely to flee or pose a danger to the safety of another
person or the community; and second, that the appeal is not
for delay and raises a substantial question of law or fact
likely to result in reversal, an order for 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 the time already served plus the expected duration
of the appeal process. 18 U.S.C. § 3143(b); United
States v. Chilingirian, 280 F.3d 704, 709 (6th Cir.
2002); Vance, 851 F.2d at 167 (noting that defendant
bears the burden of overcoming statutory presumption of
determining whether a question on appeal raises “a
substantial question of law or fact, ” a Court does not
need to find that it committed reversible error. United
States v. Pollard, 778 F.2d 1177, 1181 (6th Cir. 1985).
To determine whether the question is, in fact, substantial,
“a judge must essentially evaluate the difficulty of
the question he previously decided.” United
States v. Sutherlin, 84 Fed.Appx. 630, 631 (6th Cir.
2003) (quoting United States v. Shoffner, 791 F.2d
586, 589 (7th Cir. 1986)). It must be a “close
question” that can “go either way.”
Pollard, 778 F.2d at 1182 (citations omitted). The
defendant bears the burden of proving the substantiality of
the question. Vance, 851 F.2d at 167.
motion [R. 191] makes no argument for his release and in fact
does little more than request that this Court review his
previously filed Motion for a New Trial and the arguments
therein, which this Court has previously denied. [R. 152; R.
166.] In that pleading, Dr. Chalhoub first contends that the
Government failed to present sufficient evidence of his
mental state and intent to defraud. [R. 152 at 9-22.] This
Court has already considered the sufficiency of the evidence
in ruling on Defendant's Rule 29 motion. [R. 166.] When
considering a Rule 29 motion based on an alleged
insufficiency of the evidence, the Court may not reweigh the
evidence, reevaluate the credibility of witnesses, or
substitute its judgment for that of the jury. See United
States v. Callahan, 801 F.3d 606, 616 (6th Cir. 2015).
Instead, the Court views all of the evidence in the light
most favorable to the Government, and then it considers
whether any rational trier of fact could find the elements of
the counts of conviction beyond a reasonable doubt. See,
e.g., United States v. Vichitvongsa, 819 F.3d
260, 270 (6th Cir. 2016); United States v. Villarce,
323 F.3d 435, 438 (6th Cir. 2003). “In sum, a defendant
claiming insufficiency of the evidence bears a very heavy
burden.” Callahan, 801 F.3d at 616 (quoting
United States v. Jackson, 473 F.3d 660, 669 (6th
even without direct evidence, a jury may infer the requisite
knowledge and intent of a defendant. United States v.
Davis, 490 F.3d 541, 549 (6th Cir. 2007). The jury is
permitted to consider circumstantial evidence, such as
efforts to conceal the activity, misrepresentations, proof of
knowledge, and proof of profits, to infer evidence of intent.
Id. Additionally, the Sixth Circuit maintains that
this circumstantial evidence is enough to sustain a