United States v. Kesari

CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia
Docket NumberCRIMINAL ACTION 2:19-00241
Decision Date25 August 2021

John T. Copenhaver, Jr. Senior United States District Judge

Pending is the “Memorandum in Support of Defendant Sriramloo Kesari, M.D.'s Oral Motion for Judgment of Acquittal or New Trial, ” filed June 10, 2021. ECF No. 260. The government filed a response on July 10, 2021, ECF No. 285 and Kesari filed a reply on July 21, 2021. ECF No. 286. The court construes Kesari's memorandum (ECF No. 260) as a timely filed renewed motion for judgment of acquittal or, in the alternative, motion for a new trial.

I. General Background

Kesari a medical doctor, treated patients for opioid use disorder at his medical practice, Ram Diagnostics Center, in Danville, Boone, County, West Virginia. See, e.g., ECF No. 257-10. Through this medical practice, Kesari prescribed the trade-name drugs Suboxone and (occasionally) Subutex, both of which contain the Schedule III controlled substance buprenorphine, ECF No. 265, at 46:16-47:7; ECF No. 266, at 91:1-14, for his patients. See, e.g., ECF No. 254-7; 255-17; ECF No. 266, at 205:21-23.

Kesari employed co-defendant Kristina Truxhall as an office manager. See ECF No. 268, at 11:8-10. Truxhall was registered by the state as a nurse aide from January 7, 2011 through February 28, 2015, at which time her registration lapsed. See ECF No. 257-32. Prior to the lapse of this registration, Truxhall's last reported nurse aide employment was with Boone Nursing from May 1, 2011, through June 1, 2011. See id.

The Drug Enforcement Administration (“DEA”) began to investigate Kesari's practice in December of 2018. See, e.g., ECF No. 31-1, at 2. Using the alias Jason Price, ” DEA Special Agent Joshua Tripp visited the practice and obtained Suboxone prescriptions on four occasions, January 14, 2019, January 23, 2019, February 21, 2019, and March 21, 2019, posing as an opioid addict and recording each appointment with audio and/or video recording devices. See generally ECF No. 256-2; ECF No. 256-2; ECF No. 256-3; ECF No. 256-4; ECF No. 256-5; ECF No. 272. DEA investigators, including DeAndra Lee and Sandra McMillion, subsequently executed a search warrant at Kesari's office on June 18, 2019. See ECF No. 280, at 7-19-24; ECF No. 281, at 13:6-14:1. During the execution of the search warrant, Kesari signed a FORM DEA-104 (07/18), titled “SURRENDER FOR CAUSE OF DEA CERTIFICATE OF REGISTRATION” (hereinafter referred to as the “DEA-104”), and voluntarily surrendered his DEA Certificate of Registration. See ECF No. 256-26.

Kesari and Truxhall were subsequently charged with criminal counts relating to Kesari's prescribing. The operative indictment, the Second Superseding Indictment, charged Truxhall and Kesari in Count One with conspiracy to unlawfully distribute buprenorphine and Suboxone in violation of 21 U.S.C. § 846 [f]rom in or about October 2018, through in or about May 2019.” ECF No. 3. Kesari was charged in Counts Two through Thirteen with individual instances of unlawful distribution of buprenorphine and Suboxone in violation of 21 U.S.C. § 841(a)(1) spanning from October 26, 2018, through March 1, 2019. Id. Of particular relevance here are the last three counts. Counts Eleven through Thirteen concerned Suboxone prescriptions issued to Tripp during his January 14, 2019 (Count Eleven), January 23, 2019 (Count Twelve), and February 21, 2019 (Count Thirteen) appointments with Kesari. Id.

Trial on all charges commenced on May 18, 2021. See ECF No. 225. After the government rested its case, the court denied the motions of Kesari and Truxhall for judgments of acquittal on May 25, 2021. ECF No. 238. The jury returned its verdict on May 27, 2021, acquitting the defendants on all charges with the exception of Count Thirteen, on which Kesari was found guilty. ECF No. 246; ECF No. 247.

II. The Pending Motions

Kesari filed the pending memorandum on June 10, 2021. ECF No. 260. Inasmuch as his earlier oral motion for judgment of acquittal was denied when made at the close of the government's case on May 25, 2021, and it does not appear that he has heretofore made a motion for a new trial, the court construes the memorandum as a timely renewed motion for judgment of acquittal or, in the alternative, motion for a new trial pursuant to Federal Rules of Criminal Procedure 29(c) and 33(b). The court addresses these issues in turn.

A. Renewed Rule 29 Motion for Judgment of Acquittal

Kesari first argues that the evidence was not sufficient to sustain a conviction on Count Thirteen. ECF No. 260, at 3-12.

Under Rule 29(c)(1), a defendant may renew a motion for judgment of acquittal based on the insufficiency of the evidence after a guilty verdict is rendered by the jury. “A judgment of acquittal based on the insufficiency of evidence is a ruling by the court that as a matter of law the government's evidence is insufficient ‘to establish factual guilt' on the charges in the indictment.” United States v. Alvarez, 351 F.3d 126, 129 (4th Cir. 2003) (quoting Smalis v. Pennsylvania, 476 U.S. 140, 144 (1986)).

However, “a jury verdict ‘must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.' United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc) (emphasis omitted) (quoting Glasser v. United States, 315 U.S. 60, 80 (1942)). [S]ubstantial evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt.” Id. (United States v. Smith, 29 F.3d 914, 917 (4th Cir.), cert. denied, 513 U.S. 976 (1994)). The defendant bears a heavy burden, and “reversal for insufficiency must ‘be confined to cases where the prosecution's failure is clear[.]' United States v. Edlind, 887 F.3d 166, 172 (4th Cir. 2018), cert. denied, 139 S.Ct. 203 (2018) (quoting Burks v. United States, 437 U.S. 1, 17 (1978)). The court does not “weigh the evidence or assess the credibility of witnesses, but assume[s] that the jury resolved any discrepancies in favor of the government.” United States v. Kelly, 510 F.3d 433, 440 (4th Cir. 2007) (citing United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998)).

When prosecuting a doctor under 21 U.S.C. § 841(a)(1), the government must prove: (1) that the defendant distributed or dispensed a controlled substance; (2) that the defendant acted knowingly and intentionally; and (3) that the defendant's actions were not for legitimate medical purposes in the usual course of his professional medical practice or were beyond the bounds of medical practice.”[1] United States v. Hurwitz, 459 F.3d 463, 475 (4th Cir. 2006) (internal quotation marks and citations omitted). The third element is distinct from a civil medical malpractice negligence standard in that it requires proof that a doctor prescribed a controlled substance “outside the bounds of . . . professional medical practice.” United States v. McIver, 470 F.3d 550, 558-59 (4th Cir. 2006) (quoting United States v. Alerre, 430 F.3d at 691 n. 9 (4th Cir. 2005)). Evidence relating to compliance with professional norms is pertinent to the third element inasmuch as “the extent and severity of departures from [] professional norms [] underpin a jury's finding of criminal violations” of 21 U.S.C. § 841(a)(1) by a physician. Id. at 561. In reviewing the sufficiency of the evidence, [t]here are no specific guidelines concerning what is required to support a conclusion that an accused acted outside the usual course of professional practice. Rather, the court[] must engage in a case-by-case analysis of evidence to determine whether a reasonable inference of guilt may be drawn from specific facts.” United States v. Singh, 54 F.3d 1182, 1187 (4th Cir. 1995) (quoting United States v. August, 984 F.2d 705, 713 (6th Cir. 1992)).

A doctor's good faith “is relevant to a jury's determination of whether the doctor acted outside the bounds of medical practice or with a legitimate medical purpose when prescribing narcotics.” Hurwitz, 459 F.3d at 476. However, the good faith standard is an objective one, requiring “not merely a doctor's sincere intention towards the people who come to see him, but, rather, . . . his sincerity in attempting to conduct himself in accordance with a standard of medical practice generally recognized and accepted in the country.” Id. at 478 (quoting United States v. Hayes, 794 F.2d 1348, 1351 (9th Cir. 1986)); accord United States v. Boccone, 556 Fed.Appx. 215, 228 (4th Cir. 2014).

The court instructed the jury that the government must prove beyond a reasonable doubt that Kesari distributed or dispensed a controlled substance without a legitimate medical purpose or outside the usual course of medical practice. See ECF No. 285-4, at 42-44. In doing so, the court distinguished the relevant inquiry from that of a civil medical malpractice negligence standard, emphasizing that the criminal inquiry involves consideration of prescribing “outside the bounds of professional medical practice.” See id. at 44. The court instructed the jury that it should consider “the extent and severity of any violations of professional norms” by Kesari when determining whether the government had proved this element. Id. at 42-43. The court noted that the relevant inquiry was whether Kesari's “authority to prescribe controlled substances was not being used for treatment of a patient, but for something other than a legitimate medical purpose, such as assisting another in the maintenance of a drug habit or the personal profit of the physician.” Id. at 44. In addition, the court explained the objective good faith standard and explicitly...

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