United States v. Ifediba

          MEMORANDUM OPINION

          R. DAVID PROCTOR, UNITED STATES DISTRICT JUDGE

         This 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.

         I. Background

         Defendants 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).

         Defendant 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 employee. (Id.).

         Beginning 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.^[1] (See id.).

         The 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.).

         The 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.

         Following 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).

         II. Legal Standard

         Pursuant 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).

         “In 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).

         III. Analysis

         Defendant 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 turn.

         a. Evidentiary Rulings

         To 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).

         “[C]riminal 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 differently.

Hurn, 368 F.3d at 1363 (internal footnotes omitted).

         Defendant 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).

         i. Peer Comparison Data

         Defendant 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.

         In 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.).

         The 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.

         Even if 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.”).

         Because 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.

         The 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.

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