United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE
matter is before the court on Motions for a New Trial (Docs.
# 177, 179) filed by Defendant Patrick Emeka Ifediba and
Defendant Ngozi Justina Ozuligbo. The Motions are fully
briefed and ripe for review. (Docs. # 177, 179, 180). After
careful review, the court concludes that the Motions are due
to be denied.
Patrick Emeka Ifediba and Uchenna Grace Ifediba (who was
found incompetent and did not go to trial) were married and
each a physician who specialized in internal medicine. (Doc.
#1 at 1). Both Defendants were licensed to practice medicine
in Alabama, and each obtained a Drug Enforcement
Administration (“DEA”) registration, which
authorized them to prescribe controlled substances.
(Id.). Defendant Patrick Ifediba formed and operated
Care Complete Medical Clinic (“CCMC”), along with
Uchenna Ifediba, as a private medical clinic. (Id.
at 2). They provided medical services at CCMC, including pain
management and allergy treatment. (Doc. # 1 at 2-3).
Clement Essien Ebio, an alleged co-conspirator who also did
not go to trial, was the owner of RCM Medical Billing, LLC
and RCM Medical Group (collectively “RCM”), both
of which provided medical billing and medical practice
management services to CCMC. (Id. at 2-3). Defendant
Ebio also served as the regional manager of a Georgia allergy
services company. (Id. at 2). Defendant Ngozi Justin
Ozuligbo was a licensed practical nurse, who worked at CCMC.
(Id.). She is the sister of Defendant Patrick
Ifediba and was employed, at times, as a CCMC employee, and
at other times as a Georgia Allergy Services company
in February 2015 and spanning over the course of eight
months, four undercover agents working with the DEA visited
CCMC in Birmingham, Alabama. The undercover agents posed as
patients and visited CCMC as part of a DEA investigation into
Defendants Patrick and Uchenna Ifediba's controlled
substance prescription practices. On March 29, 2018, after a
three-year investigation, Defendants Patrick Ifediba, Uchenna
Ifediba, Ngozi Justina Ozuligbo, and Clement Ebio were
charged in a forty-four (44) count indictment. (See
indictment alleges that from January 1, 2013, and continuing
through April 28, 2016, Defendants Patrick and Uchenna
Ifediba conspired to operate the CCMC as a “pill
mill” in violation of the Controlled Substances Act.
(Id. at 21-27). The indictment also contains a
number of substantive counts alleging that Defendant Patrick
Ifediba unlawfully distributed controlled substances.
(Id.). The indictment alleges that Defendant
Ozuligbo defrauded patients, participated in money
laundering, and conspired to defraud various medical
insurance companies. (Id.).
trial of Defendant Ifediba and Defendant Ozuligbo began on
June 24, 2019. The Government's case in chief included
forty-five witnesses and over 350 exhibits. The Government
rested its case-in-chief on July 8, 2019. Subsequently,
Defendants made oral motions for judgments of acquittal.
the Governments case in chief, Defendant Ifediba presented
his case. He called nine witnesses, including two experts.
Defendant Ifediba rested on July 10, 2019. Both Defendants
renewed their motions for acquittal. Defendant Ifediba's
motion was denied. However, on motion from the Government,
the Court dismissed Count Eleven against Defendant Ozuligbo.
(Doc. # 170). As to the remaining counts against her, the
court denied her motion for acquittal. On July 15, 2019, the
jury received the case. On July 17, 2019 the jury convicted
Defendants Ifediba and Ozuligbo on all remaining counts. Both
Defendants filed timely motions seeking new trials under
Federal Rule of Criminal Procedure 33. (Docs. # 177, 179).
to Rule 33 of the Federal Rules of Criminal Procedure, the
court is empowered to vacate a judgment and grant a new trial
“if the interests of justice so require.” Fed.
R. Crim. P. 33(b)(2). There are two grounds on which a court
may grant a motion for a new trial: (1) when there is newly
discovered evidence; or (2) if it is in the interest of
justice. United States v. Campa, 459 F.3d 1121, 1151
(11th Cir. 2006). The decision whether to grant or deny such
a motion rests in the sound discretion of the trial court.
United States v. Champion, 813 F.2d 1154, 1170 (11th
Cir. 1987). The trial court may grant a motion for a new
trial even where the defect does not constitute reversible
error, or even when there is no legal error at all.
United States v. Vicaria, 12 F.3d 195, 198-99 (11th
Cir. 1994). Rather, the court “has very broad
discretion in deciding whether there has been a miscarriage
of justice.” United States v. Hall, 854 F.2d
1269, 1271 (11th Cir. 1988). Indeed, the power of a district
court to grant a new trial “is not limited to cases
where the district court concludes that its prior ruling,
upon which it bases the new trial, was legally erroneous.
Vicaria, 12 F.3d at 198-99. In addition, the
cumulative effect of multiple errors may so prejudice a
defendant's right to a fair trial that a new trial is
required, even if the errors considered individually are
non-reversible. United States v. Thomas, 62 F.3d
1332, 1343 (11th Cir. 1995).
evaluating a motion for a new trial, [a] district court need
not view the evidence in the light most favorable to the
verdict.” United States v. Ward, 274 F.3d
1320, 1323 (11th Cir. 2001) (citations and internal
quotations omitted). However, “[t]he court may not
reweigh the evidence and set aside the verdict simply because
it feels some other result would be more reasonable. The
evidence must preponderate heavily against the verdict, such
that it would be a miscarriage of justice to let the verdict
stand.” Martinez, 763 F.2d at 1312-13.
Importantly, motions for new trials should be granted
“sparingly, ” and only in “those really
‘exceptional cases.'” Id. at 1313
(internal citations omitted).
Ifediba claims a new trial is warranted for four reasons: (1)
the court made erroneous evidentiary rulings; (2) the
evidence was insufficient; (3) the court gave erroneous jury
instructions; and (4) it was improper to join his
co-defendant, Ngozi Justina Ozuligbo, for purposes of trial.
(Doc. # 177). Defendant Ozuligbo joins Defendant Ifediba in
his second objection and challenges the sufficiency of the
evidence. (Doc. # 179). The court addresses each argument, in
successfully challenge a verdict on the basis of a district
court's incorrect evidentiary ruling, a party must: (1)
“demonstrate either that his claim was adequately
preserved or that the ruling constituted plain error”;
(2) “establish that the district court abused its
discretion in interpreting or applying an evidentiary
rule”; and (3) “establish that this error
affected ... a substantial right.” United States v.
Stephens, 365 F.3d 967, 974 (11th Cir. 2004) (citations
and internal quotations omitted).
defendants must be afforded the opportunity to present
evidence in their favor.” United States v.
Hurn, 368 F.3d 1359, 1362 (11th Cir. 2004). A district
court's exclusion of a defendant's otherwise
admissible evidence violates the constitutional rights to
Compulsory Process and Due Process in four circumstances.
First, a defendant must generally be permitted to introduce
evidence directly pertaining to any of the actual elements of
the charged offense or an affirmative defense. Second, a
defendant must generally be permitted to introduce evidence
pertaining to collateral matters that, through a reasonable
chain of inferences, could make the existence of one or more
of the elements of the charged offense or an affirmative
defense more or less certain. Third, a defendant generally
has the right to introduce evidence that is not itself tied
to any of the elements of a crime or affirmative defense, but
that could have a substantial impact on the credibility of an
important government witness. Finally, a defendant must
generally be permitted to introduce evidence that, while not
directly or indirectly relevant to any of the elements of the
charged events, nevertheless tends to place the story
presented by the prosecution in a significantly different
light, such that a reasonable jury might receive it
Hurn, 368 F.3d at 1363 (internal footnotes omitted).
Ifediba argues that evidence was erroneously admitted or
excluded regarding: (1) peer comparison data; (2) revocation
of his DEA registration; (3) pharmacy compliance with
prescriptions; and (4) sanctions (or lack thereof) by the
Alabama Board of Medical Examiners. (Doc. # 177 at ¶4).
Peer Comparison Data
Ifediba argues the court erroneously admitted peer comparison
charts at trial. (Id.). After review, the court
concludes that it did not err in admitting the Viva Health
peer comparison chart, or otherwise. The peer comparison
charts were used by the Government to illustrate the
disparity between the value of claims from other allergy
specialists in comparison with Defendant Ifediba's
submitted claims. (Id.). Defendant Ifediba argues
the charts were prejudicial and “had nothing to do with
the issue of conspiracy to commit fraud . . . .”
(Id.). In presenting this argument, Defendant
Ifediba cites no any legal authority, nor does he provide any
additional rationale to support his argument.
response, the Government notes that the peer comparison
charts were provided to Defendant Ifediba on February 11,
2019, four months prior to trial, and he did not object to
the admissibility of the exhibits in any of his pre-trial
motions in limine. (Doc. # 180 at 7). Moreover, at
trial, Defendant Ifediba only objected to the admissibility
of one peer comparison exhibit pertaining to one health
insurance company, Viva Health. (Id.).
peer comparison charts were used by the Government to
illustrate disparities in medical billing and the number of
patients seen by the Defendant. This critical information was
relevant to the Government's theory at trial. In fact,
the use of peer-comparison charts at trial to illustrate
disparities in medical billing is a common practice.
United States v. Richardson, 233 F.3d 1285, 1293
(11th Cir. 2000) (stating “[s]ummary charts are
permitted generally by Federal Rule of Evidence 1006 and the
decision whether to use them lies within the district
court's discretion.”); United States v.
Rutigliano, 614 Fed.Appx. 542, 544-45 (2d Cir. 2015)
(“[P]ermitting the government to introduce charts
comparing disability applications prepared by [Defendant] for
himself and others, and charts showing the disparity in
disability rates by [others].”); United States v.
Casamento, 887 F.2d 1141, 1151 (2d Cir. 1989)
(“This court has long approved the use of charts in
complex trials.”); United States v. Pinto, 850
F.2d 927, 935-36 (2d Cir. 1988) (approving Government's
use of summary charts at trial). In his Motion, Defendant
Ifediba merely regurgitates the same arguments he made at
trial. (See Doc. # 177). Just as at trial, and for
the reasons already stated, the court finds no error in
admitting the Viva Health peer comparison charts.
the Viva Health chart had not been admitted, there was
overwhelming evidence of Defendant Ifediba's guilt. Thus,
even if the chart was not due to be admitted (and, to be
clear, it was clearly admissible) admission of the Viva
Health chart was “harmless beyond a reasonable
doubt.” United States v. Emmanuel, 565 F.3d
1324, 1336 (11th Cir. 2009). “The inquiry under the
harmless error doctrine is whether there was “a
reasonable possibility that the evidence complained of might
have contributed to the conviction.” United States
v. Cruz, 765 F.2d 1020, 1025 (11th Cir. 1985) (citing
Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963)).
Here, the evidence presented against Defendant Ifediba at the
three-week trial was sufficient to negate any reasonable
doubt that the admission of the Viva Health comparison chart
contributed to his conviction. Cruz, 765 F.2d at
1025 (holding that “the other evidence against
[Defendants] was sufficient to negate any reasonable doubt
whether the erroneous admission of the [evidence] contributed
to their convictions.”).
Defendant Ifediba failed to object to the other charts before
or during trial, the appropriate standard of review for the
rest of the peer comparison charts is “plain error
only.” United States v. Emmanuel, 565 F.3d
1324, 1336 (11th Cir. 2009); United States v.
Turner, 474 F.3d 1265, 1275 (11th Cir. 2007)
(“[I]t is well-settled that where . . . a defendant
fails to preserve an evidentiary ruling by contemporaneously
objecting, our review is only for plain error.”). To
prevail on plain error review, a party must, as an initial
matter, establish three conditions. “First, there must
be an error that has not been intentionally relinquished or
abandoned. Second, the error must be plain-that is to say,
clear or obvious. Third, the error must have affected the
defendant's substantial rights.”
Rosales-Mireles v. United States, 138 S.Ct. 1897,
1904 (2018) (quoting Molina-Martinez v. United
States, 136 S.Ct. 1338, 1343 (2016)). If the first three
conditions are met, a court “may exercise its
discretion to notice a forfeited error, but only if the error
seriously affected the fairness, integrity, or public
reputation of judicial proceedings.” United States
v. Hernandez, 906 F.3d 1367, 1370 (11th Cir. 2018)
(quoting United States v. Rodriguez, 398 F.3d 1291,
1298 (11th Cir. 2005)). “Meeting all four prongs is
difficult, ‘as it should be.'” Puckett v.
United States, 556 U.S. 129, 135 (2009) (quoting
United States v. Dominguez Benitez, 542 U.S. 74, 83
n.9 (2004)). Here, we do not struggle to conclude that the
four prongs are not satisfied.
court's first step under the plain error analysis is to
determine if there was an error that has not been
“intentionally relinquished or abandoned.”
Rosales-Mireles, 138 S.Ct. at 1904. Here, there was
not. There was no deviation from a legal rule. Rather, the
use of peer comparison charts is a common practice and is
generally permitted by the Federal Rules of Evidence. See
Richardson, 233 F.3d at 1293; Fed.R.Evid. 1006. At the
second step, the court notes that there was no obvious error
by the court in allowing the admission of the peer comparison
charts. Third, the admission of the charts did not affect
Defendant Ifediba's substantial rights. Indeed, even in
the absence of the peer comparison charts, the voluminous
amount of evidence presented by the Government likely would
have resulted in Defendant Ifediba's conviction.
(See Doc. # 172, Exh. 1-504). Finally, as the first
three prongs were not met, the court need not consider
whether the admission of the peer comparison charts
“seriously affected the fairness, integrity, or public
reputation of judicial proceedings.”
Hernandez, 906 F.3d at 1370 (citations omitted).
But, in an abundance of caution, the court notes that the
admission of the charts in no way compromised the fairness of
the proceedings. Defendant argues that the charts were
prejudicial and that the “only purpose of the
comparisons was to prejudice the jury with the issue of money
made by the Defendant and number of patients seen by the
Defendant during the three years of the conspiracy.”
(Doc. # 177 at ¶4). Aside from calling out
“prejudice, ” Defendant Ifediba does not state
how the information on the charts was unfairly prejudicial.
Therefore, after a thorough analysis, the court concludes
that it did not err in admitting the peer comparison charts,
Viva Health or otherwise.