United States v. Georges, 2:20-cr-157 (2)

CourtU.S. District Court — Southern District of Ohio
Docket Number2:20-cr-157 (2)
Decision Date15 September 2021



No. 2:20-cr-157 (2)

United States District Court, S.D. Ohio, Eastern Division

September 15, 2021



This matter is before the Court on the Government's First and Second Motions in limine, (ECF No. 59 & 60). The Court issued oral decisions on the motions at the Friday, September 10, 2021 final pretrial conference, but sets forth its reasoning more fully herein. For the following reasons, Government's First Motion is GRANTED in part, and DENIED in part, but WITHOLDS RULING on admissibility regarding portions of each motion, stylized as the Government's Charging Decisions and Initiatives; and Whether Others Committed the Same Crimes under Rules 401 and 403.


On September 22, 2020, the United States returned a fifteen-count indictment against Defendants Jimmy Henry and Nicole Georges. (ECF No. 5). Only one count, Count Eleven for soliciting and receiving health care kickbacks in violation of 42 U.S.C. § 1320a-7b(b)(1)(B), includes Ms. Georges. (Id. ¶¶ 47-48). On June 8, 2021, the Grand Jury returned a superseding indictment as to Ms. Georges, modifying the existing charges. Ms. Georges is now charged with two counts: Count One for conspiracy to defraud the United States and to violate the anti-kickback statute in violation of 18 U.S.C. § 371; and Count Two for soliciting and receiving health care kickbacks in violation of 42 U.S.C. § 1320a-7b(b)(1)(B) as well as 18 U.S.C. § 2, which provides for accomplice liability. (ECF No. 41 ¶¶ 42-43).

The superseding indictment alleges that Ms. Georges aided and abetted Dr. Henry in knowingly and willfully soliciting renumeration in return for purchasing, leasing, ordering, and arranging for and recommending the purchase of a significant increase in Subsys prescriptions. (Id. ¶ 43). Subsys is a fentanyl-based sublingual spray. (Id. ¶ 7). Ms. Georges was previously employed by Insys Therapeuticals, which marketed Subsys. (Id. ¶¶ 1, 7).

The alleged kickback scheme arises from Dr. Henry's participation in a “speaking program” conducted by Insys, wherein Henry received payments for his participation. (Id. ¶ 34). The indictment alleges that as Dr. Henry participated in the speaker program, the number of prescriptions he wrote for Subsys that were reimbursed through Medicare and Ohio Medicaid rose. (Id. ¶ 40).

On September 1, 2021, the Government filed two motions in limine. The first raises eight issues, the Government asserts, concerning jury nullification: (1) prohibiting the Defendant from remarking on the list of Government witnesses as well as the Government's decision to call those witnesses; (2) prohibiting Defendant's use of out-of-court statements by Defendant or anyone else offered to prove the truth of the matter asserted; (3) barring Defendant from referencing the Government's decision to charge and pursue certain enforcement strategies; (4) excluding any argument regarding jury nullification; (5) prohibiting the reference of any potential sentence or other collateral consequences; (6) barring Defense counsel from introducing personal opinions of the Defendant; (7) excluding “interview reports prepared by law enforcement to impeach [G]overnment witnesses”; and (8) prohibiting the use of specific examples of good conduct provided to establish a pertinent character trait of Defendant. (ECF 59).

The Government's second motion concerns conduct allegedly committed by others: namely, Insys employees. This motion raises two issues: (1) barring Defendant from presenting evidence of similar crimes allegedly committed by other Insys employees as irrelevant; and (2) even if relevant, excluding such acts as unhelpful to the trier of fact under Federal Rule of Evidence 403. (ECF 60).


A. Motions in Limine

Courts should “exclude evidence on a motion in limine only when that evidence is determined to be clearly inadmissible on all potential grounds.” Delay v. Rosenthal Collins Grp., LLC, No. 2:07-CV-568, 2012 WL 5878873, at *2 (S.D. Ohio Nov. 21, 2012). Thus, “[w]hen a court is unable to determine whether or not certain evidence is clearly inadmissible, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice can be resolved in the proper context.” Id. Orders in limine which exclude broad categories of evidence should seldom be employed. The better practice is to deal with questions of admissibility as they arise. Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975); see also Morrison v. Stephenson, No. 2:06-CV-283, 2008 WL 343176, at *1 (S.D. Ohio Feb. 5, 2008) (“Courts ... are generally reluctant to grant broad exclusions of evidence in limine, because a court is almost always better situated during the actual trial to assess the value and utility of evidence.”). “Whether or not to grant a motion in limine falls within the sound discretion of the trial court.” Delay, 2012 WL 5878873, at *2. Additionally, “[a] ruling on a motion in limine is no more than a preliminary, or advisory, opinion that falls entirely within the discretion of the district court.” United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994) (citing United States v. Luce, 713 F.2d 1236, 1239 (6th Cir. 1983)). Thus, this Court “may change its ruling at trial for whatever reasons it deems appropriate.” Id.

B. Applicable Rules of Evidence

Evidence that is not relevant is not admissible. Fed.R.Evid. 402. Evidence is relevant, and therefore generally admissible, so long as it “has any tendency to make a fact more or less probable, ” and so long as “the fact is of consequence in determining the action.” Fed.R.Evid. 401. “The standard for relevancy is ‘extremely liberal' under the Federal Rules of Evidence.” Dortch v. Fowler, 588 F.3d 396, 400 (6th Cir. 2009) (internal citation omitted). “[A] piece of evidence does not need to carry a party's evidentiary burden in order to be relevant.” Id. at 401. Additionally, evidence can be relevant even if it does not relate to a fact in dispute, provided the evidence supplies background information about a party or issue. See Fed. R. Evid. 401 Advisory Committee's Notes (“Evidence which is essentially background in nature can scarcely be said to involve disputed matter, yet it is universally offered and admitted as an aid to understanding.”). Assuming evidence is relevant, Rule 403 nonetheless grants trial courts discretion to exclude that evidence “if its probative value is substantially outweighed” by the risk of “unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403.

Generally, hearsay is inadmissible, unless an exception to the hearsay rule applies. Fed.R.Evid. 801, 802. Evidence that would constitute hearsay for one use may be considered excluded from the definition of hearsay altogether in other instances. For example, a statement by a party opponent is considered “not hearsay, ” but that same statement offered by the party that made the statement fits squarely within the general prohibition. Id.

Additionally, relevant evidence of character, character trait, or other acts is likewise inadmissible under Rule 404 “to show that on a particular occasion the person acted in accordance with the character.” Fed.R.Evid. 404(b)(1). “[E]vidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.R.Evid. 404(b)(2).

Finally, Rule 405 permits the introduction of certain character evidence through limited means, in special circumstances. Fed.R.Evid. 405(a), 405(b). Typically, “when evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion.” Fed.R.Evid. 405(a). Where a relevant character trait is at issue-precisely, “when a person's character or character trait is an essential element of a charge, claim, or defense”-specific instances of relevant conduct may be introduced. Fed.R.Evid. 405(b). It is within this framework that this Court considers the Government's Motions.


A. Government's Failure to Call Certain Witnesses

First, the Government moves to bar the Defendant from referencing the Government's failure to call any witness during its case-in-chief. (ECF No. 59). To support this contention, the Government asserts that strategic or practical reasons may prohibit the Government from calling all of its witnesses. Id. Moreover, the Government argues, such comments might confuse the jury. Finally, the prosecution contends that drawing a negative inference-for example, that such omitted testimony would have been adverse to the Government's case-would be impermissible. Id. For this last proposition, the Government relies on an out of circuit opinion and a Sixth Circuit decision interpreting Kentucky law. Id.

In the Sixth Circuit, the reverse is true. “[A] party, without prior court approval, may make an adverse inference from the other party's failure to call witnesses.” MacNaughton v. United States, 888 F.2d 418, 423 (6th Cir. 1989) (citing United States v. Blakemore, 489 F.2d 193, 195 (6th Cir. 1973)). The propriety of drawing such an adverse inference, however, is not unqualified. In Blakemore, the Sixth Circuit held that for a party to draw such an inference two conditions must be satisfied: (1) “the witnesses [must be] peculiarly within the other party's power to produce and [2] … their testimony [must] elucidate the events at issue.” Id.

Thus, the relevant inquiry is not whether such comments or inferences can be made at all, but instead, whether the witnesses in question are “peculiarly within the power” of the...

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