United States District Court, E.D. Kentucky, Southern Division, London
OPINION & ORDER
E. WIER UNITED STATES DISTRICT JUDGE.
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 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.
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.
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).
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
RULE 29 MOTIONS
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).
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
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
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
- 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
- Patient files not included in Eason's review reflected
- 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
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).
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.
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). 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,  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.
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
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),