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October 1, 1997


The opinion of the court was delivered by: NEWCOMER

 Presently before this Court are Defendant's Motion for Judgment of Acquittal, and in the Alternative, Motion for Arrest of Judgment or for a New Trial Pursuant to Rules 29(c), 33 and 34 of the Federal Rules of Criminal Procedure, and the government's response thereto, and defendant's reply and supplemental brief in support of post-verdict relief thereto, and the government's response thereto, and defendant's reply thereto. For the following reasons, the Court will deny defendant's Motions for Judgment of Acquittal and for Arrest of Judgment, and the Court will grant defendant's Motion for a New Trial.

 I. Introduction

 The defendant, Leonard Patrick, D.V.M., was indicted by a grand jury on January 9, 1997 in a four count indictment. Dr. Patrick was charged with one count of conspiracy to commit mail fraud, in violation of 18 U.S.C. §§ 371, 1341, and three counts of making false statements to the grand jury, in violation of 18 U.S.C. § 1623.

 Count I of the indictment alleged that from in or about April 1994 to September 1994 the defendant conspired with Robert Deo, an unindicted co-conspirator, to intentionally kill the racehorse Oblige, which was owned by Deo, for the purpose of collecting proceeds from an insurance contract. The indictment alleged that defendant injected bacteria into the left knee joint of the racehorse in order to create an infection of the foreleg.

 The indictment further alleged that defendant attempted to "frame" another veterinarian, Dr. Deborah Mood, and then urged Deo to file a false lawsuit against this veterinarian. Lastly, the indictment alleged that defendant instructed Deo to falsely state on an insurance claim form that the racehorse's death was attributed to the medical malpractice of a veterinarian other than defendant.

 Counts II, III and IV of the indictment alleged that on or about September 7, 1995 defendant gave false statements while under oath in a proceeding before the federal grand jury of the United States District Court for the Eastern District of Pennsylvania. Count II focussed on certain questions and answers from the grand jury concerning whether defendant had discussions with Deo regarding the medical condition and career of Oblige. Count III dealt with questions and answers concerning whether defendant treated Oblige at any time after June 9, 1994. Count IV centered around questions and answers concerning whether defendant had contact with Deo after June 9, 1994.

 A jury trial was scheduled to commence on February 19, 1997. Defendant was represented by Francis J. Hartman, Esquire. On February 13, 1997, the government filed a motion for a hearing regarding defense counsel's apparent conflict of interest. In the motion, the government stated that it intended to call Mood. The motion also stated that Charles H. Nugent, the partner of Hartman, formerly represented Mood in a civil lawsuit filed by Patrick against Mood and docketed as Patrick v. Mood, No. BUR-C-1926-89 in Burlington, New Jersey. *fn1"

 This lawsuit alleged that Mood breached her employment contract with the defendant and performed veterinary services for them in violation of a non-competition clause. The government intended to introduce testimony that defendant was hostile to Mood and conspired to frame her for the death of Oblige. The government also intended to present evidence that defendant conspired to have a medical malpractice lawsuit filed against Mood which falsely implicated her in Oblige's death. Defendant's bias and hostility toward Mood, according to the government, would be an issue relevant to motive, plan and intent. The government claimed that under these circumstances, Nugent's former representation of Mood created a conflict for Nugent as well as for his partner and former employer, Hartman.

 Hartman filed a certification in response to the government's motion, in which he stated that (1) he had no knowledge of the prior civil case, (2) Nugent could not recall any information from that case, and (3) the office file for this civil case had been destroyed. Hartman stated that the criminal matter was not "substantially related" to the prior lawsuit and that "there is nothing to suggest that any information relative to the representation will be used to the disadvantage of the former client." Hartman further stated that the "interest of Dr. Patrick is to see that justice is done. Hopefully, that is the interest of Dr. Mood as well. Certainly, their interests are not materially adverse."

 At a hearing on February 19, 1997, the Court heard testimony from Mood and Patrick. Mood stated that although she did not have any conversations with Hartman in the course of the lawsuit, she was aware that Nugent had spoken to Hartman regarding her case. She responded that she was not aware of any confidential information which she had related to Nugent which would bear upon the criminal case, and she stated that she did not know if Hartman had information on which he could cross-examine her.

 Hartman stated at the hearing that he was unaware until a few weeks prior to the trial that his office had represented Mood and that he had been informed of that prior representation by the government. He stated that his office file of Patrick v. Mood had been destroyed. In addition, Hartman asserted that he had spoken to his partner, Nugent, and asked him if he recalled the matter. Nugent responded that he did recall the matter and that he did not remember anything that "could conceivably be evidential" in the criminal matter. Nugent further informed Hartman that even if he could recall information about the case, he would not tell Hartman.

 This Court then conducted a colloquy of the defendant in which the Court explained its responsibility to be certain that there were no actual or serious potential conflicts of interests that could emerge and arise in the course of the trial. The Court explained that a partner or co-shareholder "stands in the same shoes as the attorney himself" for purposes of a conflict as a general principle. Patrick stated that he did not know of any either actual or potential conflict of interest that existed on the part of counsel in connection with his representation of him. The Court informed Patrick that the government's motion alleged that bias and hostility toward Mood would be an issue relevant to defendant's motive, plan and intent in this case. When asked if he was aware that the government was alleging that his interests were materially adverse to the interests of Mood, and that the civil and criminal trials were substantially related, Patrick responded that he was aware.

 During the course of this hearing, Mood and Patrick waived any potential conflict of interest that Hartman may have had. This Court concluded that defendant's waiver of his right to his attorney's undivided loyalty free of conflict should be permitted. This Court concluded that the conflict was "tenuous at best," in light of the fact that Nugent, not Hartman represented Mood, and that the civil case was six or seven years prior to the criminal trial. Moreover, Hartman noted that Nugent could not remember any confidential information about the case and had informed Hartman that he would not reveal to him any confidential information that he may possibly recall about the civil law suit.

 On February 28, 1997, the jury found defendant Leonard Patrick guilty of conspiracy to commit mail fraud and two counts of false declarations before the federal grand jury. He was acquitted of one count of making a false declaration before a grand jury. Thereafter, Hartman was released as trial counsel, and defendant filed a timely pro se post-verdict motion. On March 13, 1997, defendant's successor counsel filed a motion for extension of time within which to file post-verdict motions and to submit a brief in support of the post-verdict motions; this motion was granted. Subsequently, defendant was granted another extension in which to file such motions. On June 2, 1997, defendant filed his post-verdict motions, seeking relief on the grounds of ineffective assistance of trial counsel, judgment of acquittal under Fed. R. Crim. P. 29, arrest of judgment under Fed. R. Crim. P. 34, and trial error pursuant to Rule 33. The government has filed a timely response. The Court will now consider defendant's argument seriatim.

 II. Rule 29 Motions for Judgment of Acquittal

 A. Rule 29 Standard

 The district court shall order entry of judgment of acquittal "if the evidence is insufficient to sustain a conviction of such offense or offenses." Fed. R. Crim. P. 29(a). The standard to be applied by a trial court in deciding a motion for judgment of acquittal in a criminal case is "whether, after viewing the evidence in light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); United States v. Coleman, 862 F.2d 455, 460-61 (3d Cir. 1988).

 The verdict must be sustained if there is substantial evidence, taking the view most favorable to the government, to support the verdict. United States v. Aguilar, 843 F.2d 155, 157 (3d Cir. 1988). Thus, the evidence in the record must be examined as a whole and in the light most favorable to the government. See United States v. Lowell, 649 F.2d 950, 958 (3d Cir. 1981). The government must be given the benefit of inferences that may be drawn from the evidence and the evidence may be considered probative even if it is circumstantial. See United States v. Pecora, 798 F.2d 614, 618 (3d Cir. 1986). The verdict will be overruled only if no reasonable fact finder could accept the evidence as sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt. United States v. Leo, 941 F.2d 181 (3d Cir. 1991).

 B. Sufficiency of the Evidence

 Defendant's Rule 29 challenge will not detain this Court long. Although defendant has made a motion for judgment of acquittal for insufficiency of the evidence, he has failed to argue anywhere in his memorandum of law as to why the evidence at trial was insufficient to support his conviction. This argument was probably not made because it is without merit.

 At pages two through eight of the government's response to defendant's request for post-verdict relief, the government summarizes the evidence offered at trial which would support the jury's verdict. An independent review of this evidence by the Court leads to the conclusion that the government produced sufficient evidence to support the jury's finding on each and every count.

 Holding the evidence in a light most favorable to the government and drawing all inferences in their favor, the government's evidence would support the following facts. In approximately May and June 1994, Deo engaged in a series of conversations with Patrick about killing Oblige to collect the insurance money on the horse when the horse became lame and was no longer a profitable investment for Deo. Patrick assured Deo he had a quick and painless method to kill Oblige. The men devised a plan to cover up the deed by fabricating a claim of medical malpractice against Mood to make it appear as if that veterinarian caused the horse's death in the ordinary course of providing veterinary treatment.

 The plan was for Deo to arrange for Oblige to receive veterinary treatment for its lameness. First, Deo transported Oblige to New Jersey to be examined by a veterinarian at Garden State Racetrack named Edward Devine. Devine confirmed the horse's lameness in the left foreleg and that it was not fit to race. He recommended that the horse be treated. Deo then arranged for Mood to perform an interarticular injection ("tapping") of Oblige's leg joints.

 The plan was for Patrick to surreptitiously inject the horse with a lethal substance after Mood treated the horse, so it could be claimed that Oblige died as a result of an infection that developed because Mood did not properly "tap" the horse. As part of the "payment" for Patrick's help, Patrick wanted Deo to file a malpractice suit against Mood claiming that she caused the lethal injection that led to Oblige's death. Deo also agreed to use Patrick to provide veterinary services for any new horses purchased by Deo with the insurance money.

 On June 14, 1994, at approximately 8:00 a.m., Oblige was tapped in the left foreleg by Mood. During this tapping procedure, Mood dropped the needle she was using to tap Oblige when Oblige made a sudden movement. After getting another sterile needle, Mood finished the tapping procedure. When Mood left Oblige, the horse was in good condition. Later that morning, Deo and Patrick were observed together at Oblige's stall by one of the trainers, Pamela Shavelson.

 On June 15, at approximately 2:00 p.m., Oblige was discovered screaming and in distress in his stall at the racetrack barn. The horse was transported by emergency vehicle to the New Bolton Center, a veterinary hospital in Chester County. Oblige was admitted with a massive infection of the left knee joint, with inflammation, swelling and excruciating pain. Joint fluid removed from the knee was a dark brownish-red color. Lab results confirmed the presence of massive amounts of E.Coli, enterococcus, and other bacteria in the fluid. E.Coli and enterococcus bacteria are typically found in fecal matter. Despite efforts to save the animal, the horse's condition worsened and Oblige was euthanized on June 22, 1994.

 Thereafter, on July 22, 1994 Deo mailed a "Proof of Loss and Authorization for Claim" with Lloyds Livestock Insurance Company to collect on the $ 75,000 equine mortality insurance policy he maintained on Oblige. After discussion with Patrick, Deo falsely represented on the claim form that Oblige's death was attributed to the malpractice of Mood when she tapped the horse on the morning of June 14.

 Pursuant to his agreement with Patrick, Deo retained the services of attorney Alan Pincus to pursue a medical malpractice suit against Mood, as well as the insurance claim for the $ 75,000 against Lloyds. However, as a result of the investigation and prosecution, the insurance claim was never paid to Deo and the malpractice suit was not pursued against Mood.

 Based on the evidence that was admitted at trial, and holding the evidence in a light most favorable to the government and drawing all inferences in their favor, the Court finds that the government's evidence supports a conviction on Count I, conspiracy to commit mail fraud.

 With respect to the two counts of making false declarations before a grand jury on which defendant was convicted, the Court also finds that the government offered sufficient evidence at trial to support the jury's verdict. On September 7, 1995, Patrick appeared as a witness before the grand jury and made statements under oath in responses to questions about the nature and extent of his relationship with Deo and his contacts with Oblige. Patrick testified that he treated Oblige at Deo's request on only one occasion, June 9, 1994, for exercise-related cramping and distress. Patrick was convicted of lying when he expressly denied having any discussions or contact with Deo about Oblige before June 9, 1994 (Count Two). Patrick was convicted of making false statements when he denied having any contact with Deo after that date, other than to inquire into its medical status at New Bolton, a few days after the horse's emergency admission of June 15, 1994 ...

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