As a federal criminal lawyer, I have been asked to discuss the motion practice in my recent not guilty jury verdict in a Medicare fraud and anti-kickback statute case. As noted in prior blogs, this case was tried to a jury verdict in the United States District Court for the Northern District of Illinois during the weeks of January 9 and 16, 2023. The jury ultimately found my client not guilty on each and every Count of the Indictment, which included a Conspiracy Count, as well as three additional Counts alleging various violations of the Federal Anti-Kickback statute. The case can be found on the Court’s Docket for the Northern District of Illinois at 19 CR 745.
As with every federal criminal case, the pre-trial motion practice by the Defendants was targeted. Those motions resulted in certain pre-trial victories for the Defendants.
For example, the Defendants moved, in limine, to bar or limit the testimony of the Government’s expert witness, who was proffered by the Government as an expert on Medicare. Predictably, the District Court did not bar him from testifying entirely. However, the court limited the extent to which he could provide “legal opinions” that addressed the Defendants’ conduct.
In addition, the Defendants moved, in limine, to bar certain evidence of uncharged acts of misconduct, pursuant to Rule 404(b). This included evidence that the Government intended to present regarding, inter alia, complaints made by patients who were billed under Medicare regarding the quality of the durable medical equipment they received, and the writing by doctors of allegedly “medically unnecessary” prescriptions of durable medical equipment. Again, the District Court’s granting of Defendants’ motions had a significant positive impact upon the Defendants and the evidence at trial that they did not have to defend against. The District Court wisely wanted to avoid a trial where each side introduce ad hoc patient testimony regarding the quality of the durable medical equipment – particularly where, as in this case – it was not necessary to prove any elements of the charged Counts and would result in substantial prejudice to the Defendants.
The Defendants also vigorously opposed the Government’s eleventh-hour pre-trial production of what they believed to be undisclosed Brady and Giglio materias. Although the District Court denied Defendants’ Motion to Bar the testimony of a key Government cooperating witness, the District Court continued the trial to allow the Defendants and their counsel much needed time to adequately prepare for trial.
The Defendants were also successful in convincing the District Court, by way of a pre-trial motion, that they/their counsel should be allowed to “Google” and otherwise search the social media of the venire members. The District Court had initially entered an Order prohibiting such activities.
In sum, an aggressive approach to pre-trial motion practice should always be employed. There is little to nothing to lose, and some incremental gains can be made that may ultimately prove decisive at trial.
Written by Michael Leonard
Leonard Trial Lawyers
January 25, 2023