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United States of America v. Joseph J. Kubacki

August 16, 2011

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
JOSEPH J. KUBACKI, DEFENDANT.



The opinion of the court was delivered by: Eduardo C. Robreno, J.

MEMORANDUM

I. INTRODUCTION

Pursuant to Rule 404(b) of the Federal Rules of Evidence, the Government seeks to introduce evidence relating to Defendant's alcohol abuse when at the Ophthalmology Department at Temple University Hospital ("TUH"). The Government intends to use this evidence to establish that Defendant regularly used alcohol during working hours and that this alcohol use resulted in a lack productivity while at work. The Government intends to establish that Defendant's desire to mask his lack of productivity caused by his alcohol abuse was a significant motive for his commission of the crimes listed in the superseding indictment. Additionally, the Government intends to use this evidence to establish that, during the period listed in the indictment, because of Defendant's alcohol abuse Defendant did not examine the high volume of patients which he reported examining. Finally, the Government states that this evidence is central to illustrating how the Defendant eventually got caught engaging in the fraudulent scheme listed in the indictment. Defendant vehemently opposes the introduction of such evidence pursuant to Rule 404(b). For the reasons stated below, the Court will grant the Government's motion in limine and permit the introduction of evidence of Defendant's alcohol abuse.

II. DISCUSSION

A. Legal Standard Rule 404(b) governs the admissibility of evidence of "other crimes, wrongs, or acts." It provides, in relevant part, that "[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed. R. Evid. 404(b).

The Third Circuit has stated that "Rule 404(b) is a rule of inclusion rather than exclusion." United States v. Daraio, 445 F.3d 253, 263 (3d Cir. 2006) (internal citations omitted). In general, admission of Rule 404(b) evidence is favored "when it is relevant for any other purpose than to show the defendant's propensity to commit the charged offense." Id. The Third Circuit, however, has cautioned that "[d]espite [its] characterization of Rule 404(b) as a rule of admissibility . . . [it has] expressed [its] concern that, although the proponents of Rule 404(b) evidence 'will hardly admit it, the reasons proffered to admit prior act evidence may often be potemkin village, because the motive, we suspect, is often mixed between an urge to show some other consequential fact as well as to impugn the defendant's character.'" United States v. Himelwright, 42 F.3d 777, 781-82 (3d Cir. 1994) (quoting United States v. Jemal, 26 F.3d 1267, 1272 (3d Cir. 1994)).

The Supreme Court has created a four-step test for determining the admissibility of Rule 404(b) evidence:

(1) the evidence must have a proper purpose under Rule 404(b); (2) it must be relevant under Rule 402; (3) its probative value must outweigh its prejudicial effect under Rule 403; and (4) the court must charge the jury to consider the evidence only for the limited purpose for which it is admitted.

United States v. Sampson, 980 F.2d 883, 886 (3d Cir. 1992) (citing Huddleston v. United States, 485 U.S. 681, 691--92 (1988)).

1. Proper Purpose First, the proponent of the evidence must establish that the evidence is being offered for a proper purpose. If the proffered "evidence only goes to show character, or that the defendant had a propensity to commit the crime, it must be excluded. Where, however, the evidence also tends to prove some fact besides character, admissibility depends upon whether its probative value outweighs its prejudicial effect." United States v. Lee, 612 F.3d 170, 186 (3d Cir. 2010) (internal citations omitted). If the Government offers evidence of other wrongful acts, the Government must do more than state that it is being offered for one of the proper purposes listed in Rule 404(b). Becker v. ARCO Chemical Co., 207 F.3d 176, 191 (3d Cir. 2000) ("[A] proponent's incantation of the proper uses of [Rule 404(b) evidence] . . . does not magically transform inadmissible evidence into admissible evidence." (internal citations omitted)). The Government "must clearly articulate how that evidence fits into a chain of logical inferences, no link of which can be the inference that because the defendant committed . . . [such an act] before, he therefore is more likely to have committed this one." Id. (internal citations omitted).

Here, the Government states that evidence of Defendant's alcohol abuse while at work is being offered for three proper purposes. First, the Government intends to use this evidence to establish Defendant's motive for engaging in the fraudulent scheme listed in the indictment. Second, the Government intends to use this evidence as direct evidence of Defendant's lack of productivity, namely that Defendant did not examine the number of patients his records indicate that he examined during the time covered by the indictment. Third, the Government intends to use this evidence to provide helpful background information that will complete this story and answer how and why Defendant was eventually caught engaging in the crimes alleged.

As to the first and second purposes, the Government's chain of inferences is that Defendant frequently abused alcohol while at work. This bad act resulted in Defendant being unproductive and unavailable to see patients. This led to a decline in the number of patients Defendant was able to examine on a regular basis. This motivated Defendant to commit health care fraud to hide his lack of productivity. The Government states that this evidence goes directly to Defendant's motive. As to the third purpose, the Government states that it will provide testimony from an attending physician who will testify that she was concerned about Defendant's alcohol use and this prompted her to report Defendant's behavior to the Dean of Temple University School of Medicine ("TUSM"). As a result of this report, TUSM began an internal investigation of Defendant and discovered Defendant's fraudulent billing practices thus resulting in Defendant's resignation from TUSM and TUH.

The purposes proffered by the Government are proper.

See United States v. Sriyuth, 98 F.3d 739, 747 n.12 (3d Cir. 1996) (holding that motive is a proper purpose and declining to determine whether statute at bar required proof of motive or purpose "[b]ecause motive is always relevant in a criminal case"); United States v. Green, 617 F.3d 233, 249 ("[O]ne proper purpose under Rule 404(b) is supplying helpful background information to the finder of fact."). In this case, the Government has clearly articulated a chain of logical inferences and no link of this chain leads to the conclusion that because Defendant abused alcohol he was more likely or had the propensity to commit health care fraud. The Government ...


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