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United States v. Bado

United States District Court, E.D. Pennsylvania

January 17, 2017

UNITED STATES OF AMERICA,
v.
JEFFREY BADO, Defendant.

          MEMORANDUM

          Darnell Jones, II J.

         On October 24, 2016 Defendant filed the present Motion, pursuant to Federal Rule of Criminal Procedure 29(a), asking the court to enter a Judgment of Acquittal in favor of the defendant, Jeffrey Bado (“Defendant”), on Count III of the Superseding Indictment and on various drug related premises and unlawful distribution counts charged in Counts I, II, and IV through CCLXXXV of the Superseding Indictment. Count III of the Superseding Indictment charges Defendant with dispensing controlled substances, the use of which resulted in the death of a former patient. Defendant argues that a Judgment of Acquittal is appropriate as to Count III because the government failed to establish the requisite causal link between the controlled substances Defendant prescribed and the controlled substances the decedent ingested at the time of his death. Defendant further argues that the court should enter a Judgment of Acquittal for each charged count of maintaining a drug involved premises and each charged count of distribution of a controlled substance for which there was not specific expert testimony proffered in the government's case in chief. In the memorandum that follows, this Court considers the evidence adduced in the government's case in chief as to Counts I, II, and IV through CCLXXXV and Count III of the Superseding Indictment. For the reasons that follow, Defendant's Rule 29 Motion for Judgment of Acquittal is DENIED.

         PROCEDURAL BACKGROUND

         On January 10, 2015, a grand jury charged Dr. Jeffrey Bado (“Defendant”) with two counts of maintaining a drug involved premises, in violation of 21 U.S.C. § 856, one count of unlawful distribution of a controlled substance resulting in death, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), 282 counts of unlawful distribution of a controlled substance, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), thirty-three counts of health care fraud, in violation of 18 U.S.C. § 1347, and four counts of making materially false, fictitious, or fraudulent statements, in violation of 18 U.S.C. § 1001. Each count of the 322-count Superseding Indictment stemmed from Defendant's practice as a physician from 2010 through 2013.

         On September 7, 2016 the parties commenced jury selection through the use of written questionnaires and individual questioning by the court and counsel, and on September 19, 2016, the parties presented opening statements in the matter of the United States v. Jeffrey Bado. At the conclusion of the government's case-in-chief, on October 24, 2016, Defendant filed the present Motion for Judgment of Acquittal pursuant to Federal Rule of Criminal Procedure 29 (“Rule 29”). As is permitted by Rule 29, this Court reserved ruling on Defendant's Motion so as to permit thorough review of the transcripts and pertinent precedent. On November 22, 2016, this Court held oral arguments on Defendant's Rule 29 Motion, during which the parties presented their respective positions regarding the sufficiency of the evidence presented in the government's case-in-chief and the propriety of Judgment of Acquittal as to Counts I, II, and IV through CCLXXXV, and Count III of the Superseding Indictment.

         On December 8, 2016, the jury returned a unanimous verdict finding Defendant GUILTY of both counts of maintaining a drug involved premises, GUILTY of unlawful distribution of a controlled substance resulting in death, GUILTY of all but twelve of the 282 counts of unlawful distribution of a controlled substance, GUILTY of thirty three counts of health care fraud, and GUILTY of all but one of the four counts of making false, fictitious, or fraudulent statements. Now pending before the court is Defendant's Motion for Judgment of Acquittal (Dkt No. 210), the government's response thereto (Dkt No. 225), and Defendant's reply in support of the Rule 29 Motion (Dkt No. 245).

         LEGAL STANDARD

         Federal Rule of Criminal Procedure 29 directs that “the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29. Because the court reserved ruling on the Motion made at the conclusion of the government's case-in-chief, the court “must decide the motion on the basis of the evidence at the time the ruling was reserved.” Fed. R. Crim. P. 29. In ruling on a Motion for Judgment of Acquittal, the court must “review the record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence.” United States v. Smith, 294 F.3d 473, 476 (3d Cir. 2002) (quoting United States v. Wolfe, 245 F.3d 257, 262 (3d Cir. 2001)). As a result, a finding of insufficiency should be “confined to cases where the prosecution's failure is clear.” United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005) (internal citations omitted). The court must be ever vigilant “not to usurp the role of the jury by weighing credibility and assigning weight to the evidence, or by substituting its judgment for that of the jury.” Id.

         DISCUSSION

         I. There was sufficient evidence adduced in the government's case in chief to support a reasonable finding of guilt as to Counts I, II, and IV-CCLXXXV of the Superseding Indictment.

         Counts I and II of the Superseding Indictment charge Defendant with having unlawfully maintained a drug involved premises, in violation of 21 U.S.C. § 856, and Counts IV-CCLXXXV charge Defendant with having unlawfully distributed or dispensed controlled substances in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). A determination of guilt under 21 U.S.C. § 856 requires proof that the defendant knowingly rented, used, or maintained a property for the purpose of unlawfully distributing controlled substances. A registered physician, who would otherwise be authorized to dispense controlled substances, can be prosecuted for unlawful distribution when their activities fall outside the usual course of medical professional practice. United States v. Moore, 423 U.S. 122 (1975). Counts I, II, and IV-CCLXXXV each correspond to individual prescriptions issued by the Defendant that the government alleged were medically illegitimate and, thus, unlawful. The crux of the government's case as it relates to each of the aforementioned counts was that where the Defendant's prescribing practices fell outside the usual course of medical practice, Defendant's dispensing of controlled substances was criminal and punishable by law. Thus, to establish Defendant's guilt on Counts I, II, and IV-CCLXXXV of the Superseding Indictment, the government had to adduce sufficient evidence to prove beyond a reasonable doubt that Defendant issued each of the corresponding prescriptions outside the usual course of medical practice and not for a legitimate medical purpose.

         As noted by Defendant in his Motion, whether a given prescription fell outside the usual course of professional practice and is not for a legitimate medical purpose was “beyond the ken of the jury, and therefore…require[d] competent expert testimony.” (R. 29 Motion, 11). To provide said expert testimony, on October 3, 2016 the government called Doctor Stephen Thomas to testify as to the medical legitimacy of the prescriptions written by Defendant which correspond to Counts I, II and IV through CCLXXXV of the Superseding Indictment - 282 prescriptions spanning across eighty nine total patient files. After being qualified as an expert, Doctor Thomas spent the first few hours of his testimony providing the jury with an elementary understanding of pain management and explaining overarching medical standards against which to compare Defendant's prescribing practices. For example, Doctor Thomas explained that in the practice of pain management, it is imperative that physicians collect a comprehensive medical history from all new patients (Thomas Testimony 1, 84); that it cannot be medically legitimate for a doctor to provide patients with prescription renewals for opiate medications on their first office visit (Thomas Testimony 1, 88); and that it is the role of the physician to investigate when patients' urine tests present evidence of abuse or diversion (Thomas Testimony 1, 98). Doctor Thomas testified that, in preparation for trial, he thoroughly reviewed each of the patient files that include allegedly unlawful prescriptions corresponding to a charged count in the Superseding Indictment. (Thomas Testimony 1, 82). Doctor Thomas ultimately concluded that in each charged patient file he reviewed, he found evidence of medically illegitimate prescribing practices - instances where Defendant acted in contravention to established standards within the medical community. (Thomas Testimony 3, 10). To illustrate this assertion, Doctor Thomas spent the better part of two days meticulously analyzing the details of nine of the patient files charged in the Superseding Indictment.

         For each of the nine patient files, Doctor Thomas addressed the adequacy of the medical history collected at the start of the doctor-patient relationship, the type of pain generally associated with the patient's claimed injury or ailment, the propriety of the prescriptions Defendant wrote, the sufficiency of Defendant's charting and notes, any evidence of abuse or diversion, and the ways in which Doctor Thomas felt Defendant's prescribing practices fell below the threshold of medical legitimacy. Doctor Thomas testified that the nine patient files highlighted common themes of Defendant's medically illegitimate prescribing practices, and that each of the eighty-nine charged patient files could be categorized into one of five kinds of medically deficient prescribing practices. Specifically, Doctor Thomas testified that each patient file contained evidence that: (1) the patient was prescribed too high of a dose of opiate medication to be medically legitimate, (2) the defendant failed to attempt to establish that there was any medically legitimate reason to prescribe controlled substances to the patient, (3) the patient was prescribed controlled substances despite evidence of drug abuse or Substance Use Disorder, (4) the patient was prescribed controlled substances despite evidence of drug diversion, and/or (5) the patient was issued a “bridging prescription” after being discharged for abusing or diverting the drugs Defendant prescribed. (Thomas Testimony 1, 116-117).

         After Doctor Thomas addressed the nine individual patient files, the government moved to admit a chart that listed the eighty nine patient files containing prescriptions charged in the Superseding Indictment and identified to what category or categories of deficient prescribing practices each patient file should be assigned, in Doctor Thomas's expert opinion. (Thomas Testimony 2, 158). Defendant objected to the admission of this chart, claiming that to allow Doctor Thomas to present his ultimate conclusions as to patient files not yet discussed with the jury would violate Defendant's constitutional rights as guaranteed to him by the Confrontation Clause of the Sixth Amendment. (Thomas Testimony 2, 170). Before this Court could rule on Defendant's objection, the government informed the court of ...


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