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United States v. Mithavayani

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

May 15, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ANWAR MITHAVAYANI, and PETE ANTHONY TYNDALE, Defendants.

          OPINION & ORDER

          ROBERT E. WIER UNITED STATES DISTRICT JUDGE.

         In February 2019, after a trial spanning two fortnights, a jury unanimously convicted Anwar Mithvayani and Pete Tyndale (as well as their Co-Defendant Dr. Timothy Gowder) of conspiring to unlawfully distribute pain pills, laundering the proceeds, and engaging in transactions funded by dirty money. Defendants[1] now argue that, based on the record proof, the jury could not have rationally convicted them. Because the Government presented sufficient evidence at trial for a reasonable factfinder to find beyond a reasonable doubt that Mithavayani and Tyndale committed the crimes of conviction, the Court denies Defendants' Rule 29 motions.

         Alternatively, Defendants claim that the interests of justice require a new trial. They claim that an evidentiary dearth, multiple court errors, and a logically flawed verdict warrant a fresh adjudication. The Court sees strong evidence, valid rulings, and a result consistent with record proof. Thus, the Court also denies Defendants' Rule 33 requests.

         I. BACKGROUND

         In January 2018, a grand jury returned an indictment charging Defendants with conspiring to distribute unlawfully oxycodone and oxymorphone (Count 1) and launder the proceeds (Counts 5 & 6). See DE 46 (Superseding Indictment). Defendants also faced independent charges for conducting transactions with drug proceeds under 18 U.S.C. § 1957 (Mithavayani-Counts 13, 19-22, 24 & 25; Tyndale-Counts 15-20, 22 & 24) and conducting such transactions with the intent to conceal under 18 U.S.C. § 1956(a)(1)(B)(i) (Mithavayani-Counts 14, 23 & 26; Tyndale-Count 23). Defendants pleaded not guilty and proceeded to trial. From January 10 through February 1, the Government presented evidence that Defendants ran and profited handsomely from a “pill mill” in Hixson, Tennessee. After the prosecution rested, and again at the close of proof, Defendants moved for judgments of acquittal. DE 388 (Minute Entry - Day 15). The Court denied the motions. Id. Following three days of deliberations, the jury convicted Tyndale and Mithavayani on all but the non-conspiracy § 1956(a)(1)(B)(i) Counts. See DE 405 (Mithavayani Verdict); DE 406 (Tyndale Verdict).

         Here, Tyndale and Mithavayani jointly seek judgments of acquittal or, alternatively, a new trial. See DE 417 (Mithavayani Motion) & DE 419 (Tyndale Motion). The Government responded. DE 425. The motions stand ripe for review.

         II. RULE 29 MOTIONS

         A defendant seeking acquittal based on evidence insufficiency “bears a very heavy burden.” United States v. Abboud, 438 F.3d 554, 589 (6th Cir. 2006). Under Rule 29, courts may supplant a jury conviction only if a defendant shows that no reasonable jury could have found that the prosecution proved the essential charge elements beyond a reasonable doubt. See Jackson v. Virginia, 99 S.Ct. 2781, 2789 (1979). In conducting this analysis, a court does not weigh the evidence anew but views all proof through a prosecution-favorable lens. United States v. Kennedy, 714 F.3d 951, 957 (6th Cir. 2013) (citation omitted). Inference and credibility assessments, too, must favor the verdict. United States v. Newsom, 452 F.3d 593, 608 (6th Cir. 2006).

         Trafficking Conspiracy

         As to the drug conspiracy charge, the Government had to prove, beyond a reasonable doubt, (1) an agreement to violate the drug laws and, (2) that Defendants knowingly joined the conspiracy and voluntarily participated. See United States v. Sadler, 750 F.3d 585, 593 (6th Cir. 2014). Defendants claim that the trial evidence, “taken in [the] light most favorable to the government, was insufficient to prove the existence of an illegal drug trafficking scheme within TPI or that [Defendants] joined a conspiracy to engage in same.” DE 417 at 2. The Court disagrees.

         Regarding the first element, the Government's case included copious proof that painted the Tennessee Pain Institute (TPI) as a sham clinic set up to divert oxycodone and oxymorphone to a patient cohort significantly populated by addicts and other traffickers, via prescriptions serving no legitimate medical purpose. As to the existence of an agreement, case proof showed that in 2011, Tyndale and Mithavayani opened TPI and recruited Dr. Gowder as the practicing physician. Gov. Ex. 75 (Gowder TN Bd. Hrg. Tr.) at 1059-60; Gov. Ex. 53 (Mithavayani-signed lease for the TPI property). Though Dr. Gowder later became TPI's nominal owner through a purchasing entity- Tennessee Pain Institute Physicians-the proof showed that Tyndale and Mithavayani (through the jointly-owned Health Care Managers, “HCM, ” and other Defendant-owned entities) reaped the lion's share of clinic profits, exercised control over patient scheduling, received complaints about prescribing and patients, paid the clinic bills, and stored and controlled (through the Mithavayani owned “Griffin Data”) all patient records. See, e.g., Mithavayani Exs. 68, 69 & 73 (Mithavayani Agreements for Medical Records Management, Accounting Services, and Marketing). The evidence showing that the moving Defendants set up and ran the clinic (as well as the subsequent North Carolina clinic) was sufficient to establish, generally, an agreement. Sadler, 750 F.3d at 593 (citing, as part of “[a]mple evidence” supporting a conspiracy charge, proof of an agreement that defendant “owned and operated several pain-management clinics[.]”).

         As to the illicit nature and subject matter of the agreement, the Government again presented ample proof. Briefly:

- Physical evidence seized from TPI included complaint and patient files indicating that the clinic ignored strong evidence of addiction and diversion by patients (including failed drug screens, pill counts, and explicit allegations) while continuing to dispense opioids.
- Lay testimony from numerous patients (many of them admitted addicts and/or diverters) described TPI visits as including virtually no evaluation (or re-evaluation) of underlying injuries or ailments alongside unexplained dosage increases.
- Expert testimony from Dr. Eason indicated that each of the 42 TPI patient files he reviewed included illegitimate prescribing.[2]
- Eason further testified that the exorbitant doses he reviewed, consistently equaling or exceeding 120 monthly oxycodone 30mg pills (and often accompanied by multiple daily doses of the stronger opiate, oxymorphone), were never appropriate.
- Patient files not included in Eason's review reflected like prescribing.[3]
- Documentary proof from the Tennessee Board of Medical Examiners included Dr. Gowder's explicit admission to prescribing controlled substances without a legitimate medical purpose. [The proof also showed that HCM, owned by Mithavayani & Tyndale and well aware of the enforcement action, paid for Gowder's representation before the board.]

         In short, the proof as to an illicit distribution agreement was strong. See, e.g., United States v. Elliott, 876 F.3d 855, 858, 866 (6th Cir. 2017) (rejecting challenge that expert testimony was necessary to establish that average prescribing “of 120 to 150 oxycodone tablets for a month's use” was illegal where physician's “examinations were cursory, the practices of the [clinic] highly irregular, and the doses prescribed at the clinic clearly in excess of any medical need.”), cert. denied sub nom. Frial-Carrasco v. United States, 138 S.Ct. 1314 (2018).

         Defendants' challenge to the second element relies on two theories the Sixth Circuit has rejected. Essentially, Defendants claim that their role involved only innocent tasks and there is no direct proof showing their knowledge “that the actions of the doctors at the clinic were outside the scope of professional practice.” DE 417 at 2. Yet, the Government “had no obligation to produce ‘direct evidence' against [Defendants], as ‘guilty knowledge and voluntary participation may be inferred from surrounding circumstances.'” Sadler, 750 F.3d at 593 (quoting United States v. Hodges, 935 F.2d 766, 773 (6th Cir. 1991)). And, despite Defendants' contrary claims, expertise simply is not, at least in a case of this type, a prerequisite for knowledge that prescriptions are illegitimate. Indeed, in circumstances involving virtually identical prescribing, the Sixth Circuit has held that “lay understanding” is sufficient to parse “distributions [that] plainly exceed medical use.” Elliott, 876 F.3d at 864.

         As Judge Thapar aptly stated in rejecting an analogous theory:

It is true that a defendant cannot knowingly or voluntarily join a conspiracy without first knowing about it. But training is not a prerequisite for knowing about a conspiracy. A pill mill does not run on doctors alone[.] . . . And when the jig is up, these non-doctors are just as liable as the doctors who dispensed the pills. See, e.g., United States v. Hicks, 529 F.2d 841, 844 (5th Cir. 1976) (finding “no merit” to the defendant's argument that his conviction for a drug conspiracy should have been overturned because he was “a security guard with a fourth-grade education and not a doctor”); United States v. Smith, 573 F.3d 639, 646 (8th Cir. 2009) (“Lay persons who conspire with or aid and abet a practitioner's unlawful distribution of drugs can be convicted under the [Controlled Substances Act] and its regulations.”). The relevant inquiry, then, is not whether a defendant was a physician, but whether he knowingly and voluntarily played some part in a conspiracy to distribute drugs.

United States v. Solomon, No. 13-CR-40-ART, 2016 WL 10894663, at *5 (E.D. Ky. June 23, 2016). Here, the Government introduced proof from which a rational juror could conclude that Defendants formulated and implemented policies to cover up or shield TPI's illicit activity. See, e.g., Gov. Ex. 40 (TPI Rules). The rules related to parking also imply that Defendants were aware of “the distances [TPI patients] traveled to obtain prescriptions at the clinic.” Elliott, 876 F.3d at 864 (noting that knowledge of distance and “extremely short time [the physician] spent with patients” supported the conspiracy conviction). The prosecution also showed that Defendants instructed TPI staff to schedule as many as eight patients per hour and provided referral bonuses to patients. See Gov. Ex. 30 (TPI instructions for making an appointment).[4] TPI accepted only cash or cash equivalents-a factor that TFO Richard Dalyrymple testified was a red flag. Were this not enough, the Government-exhibited complaint TPI forms explicitly direct that they be returned “to the CEO” (a role TPI's office manager tapped as Mithavayani's). E.g., Gov. Ex. 43 (TPIP Complaint Forms) at 2. Proof also showed that Defendants received failed drug screen results via e-mail, [5] reviewed (though, on a limited basis) patient files, and monitored clinic activity via remotely accessible surveillance cameras. See Gov. Exs. 18A-C (TPI interior photos showing surveillance cameras). Mithavayani-owned Griffin Data also undisputedly possessed electronic versions of the TPI patient files, which clearly told the illicit prescribing tale.

         Witnesses repeatedly described Mithavayani and Tyndale as having operational charge of TPI, and prior patients testified about the cursory examination and prescription-writing processes within the clinic. The clinic had little in the way of diagnostic or medical equipment, and the patients came to receive prescriptions, with no other regular treatment emerging across the broad course of the case record. The owners' eyes in the sky-the surveillance cameras-fairly ensured that Mithavayani and Tyndale would know, granularly, about the details of clinic life without being physically on the scene.

         The prosecution, through Tyndale's former girlfriend (Jenna Crawley), also presented proof that: (1) Mithavayani and Tyndale were business partners since early 2010; (2) Tyndale was, at minimum, intimately familiar with the operation of multiple pill mills in Florida [Indeed, Tyndale ran a mobile MRI that operated for a time in the parking lot of a South Florida strip club.]; (3) Tyndale and Mithavayani opened TPI and hired the staff; (4) despite the on-paper ownership shift to Dr. Gowder after a change in state law, Defendants were the true owners throughout. As Defendants cast it, Health Care Managers was simply a managerial company tasked with administrative and human resources duties. Yet, documents showing joint Mithavayani-Tyndale ownership of HCM and various Mithavayani- and Tyndale-owned entities' financial records (showing size and timing of distributions), ...


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