United States v. Onyenso, Criminal No.: 12-CR-602 (CCC)

Decision Date16 June 2015
Docket NumberCriminal No.: 12-CR-602 (CCC)
PartiesUNITED STATES OF AMERICA v. CHIKEZIE ONYENSO, Defendant.
CourtU.S. District Court — District of New Jersey

NOT FOR PUBLICATION

OPINION

CECCHI, District Judge.

I. INTRODUCTION

This matter comes before the Court by way of the motion of Defendant Chikezie Onyenso ("Defendant") for Bail Pending Appeal. ECF No. 120. The Court has carefully considered the submissions made in support of and in opposition to the instant motion. Based on the reasons that follow, Defendant's Motion for Bail Pending Appeal is denied.

II. BACKGROUND

Because the Court writes only for the parties, the Court will recite in detail only the facts necessary to provide context for the instant motion. Defendant was arrested on December 31, 2011 for knowingly and willfully soliciting and receiving kickbacks from Orange Community M.R.I. "in return for referring patients to Orange Community M.R.I. for the furnishing or arranging for the furnishing of items and services for which payment may be made in whole or in part under a Federal health care program," in violation of 42 U.S.C. § 1320a-7b(b)(1)(A) (the "Federal Healthcare Anti-Kickback Statute") and 18 U.S.C. § 2. Compl. 2.

A federal grand jury returned an indictment on September 7, 2012 and a three-countsuperseding indictment on February 28, 2013 charging the following: Count One, conspiracy in violation of 18 U.S.C. § 371, from in or about July 2010 until in or about December 2011, to solicit and receive remuneration, directly and indirectly, overtly and covertly, in cash and in kind, for the furnishing and arranging for the furnishing of items and services for which payment may be made in whole or in part under a Federal health care program, namely Medicare and Medicaid, in violation of the Federal Healthcare Anti-Kickback Statute, including (a) kickbacks in the form of "lease payments" from Orange Community M.R.I. in return for referring patients to Orange Community M.R.I. for Ultrasounds and (b) kickbacks in the form of cash payments from Orange Community M.R.I. in return for referring patients to Orange Community M.R.I. for M.R.I.'s and C.A.T. Scans; Count Two, on or about October 11, 2011, knowingly and willfully soliciting and receiving remuneration in the form of a kickback consisting of two envelopes containing approximately $1,280 in cash from Orange Community M.R.I. in return for referring patients to Orange Community M.R.I. in violation of the Federal Healthcare Anti-Kickback Statute and 18 U.S.C. § 2; and Count Three, on or about November 22, 2011, knowingly and willfully soliciting and receiving remuneration in the form of a kickback consisting of one envelope containing approximately $530 in cash from Orange Community M.R.I. in return for referring patients to Orange Community M.R.I. in violation of the Federal Healthcare Anti-Kickback Statute and 18 U.S.C. § 2. Superseding Indictment, ECF No. 26.

On October 15, 2013, following trial, the jury returned a verdict of guilty as to Counts One and Two and not guilty as to Count Three. Jury Verdict, ECF No. 80. Defendant filed a notice of motion for a judgment of acquittal or a new trial on October 22, 2013 on the grounds that the jury verdict was against the weight of the evidence, indicating that Defendant would rely upon defense counsel's brief to be filed subsequently with the Court. ECF No. 82. Defendantrequested and was granted two extensions of time to file his brief in support of that motion, but Defendant did not submit a brief in support of his motion. Rather, in a letter to the Court dated June 2, 2014, three days before Defendant was scheduled to be sentenced, Defendant's counsel indicated that he would rely on the arguments he had made during trial in support of his motion for acquittal or a new trial. ECF No. 100. The Court heard oral argument on Defendant's motion on June 5, 2014, during which Defendant relied on the same arguments that Defendant presented during trial, and denied the motion. Sentencing Tr. 4-9, June 5, 2014, ECF No. 119. The Court then sentenced the Defendant. Defendant appealed on June 25, 2014 and filed the instant motion to stay the commencement of his sentence pending appeal on September 10, 2014, ECF No. 120. The Government has opposed the instant motion. ECF No. 122. The Defendant's surrender date has been delayed during the pendency of this motion.

III. LEGAL STANDARD

This Court must order that "a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal . . . be detained," unless the Court finds the following:

(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of another person or the community if released . . .; and
(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in—
i. reversal,
ii. an order for a new trial,
iii. a sentence that does not include a term of imprisonment, or
iv. a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.

18 U.S.C. § 3143(b). These requirements are satisfied if the Defendant proves:

(1) that the defendant is not likely to flee or pose a danger to the safety of any other person or the community if released;
(2) that the appeal is not for purpose of delay;
(3) that the appeal raises a substantial question of law or fact; and(4) that if that substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed.

United States v. Miller, 753 F.2d 19, 24 (3d Cir. 1985). To determine that the question raised on appeal is "substantial," the Court must find "that the significant question at issue is one which is either novel, which has not been decided by controlling precedent, or which is fairly doubtful." Id. at 23. In addition, the Court must find that the issue is "sufficiently important to the merits that a contrary appellate ruling is likely to require reversal or a new trial." Id. The Court need not predict the probability of reversal; rather, the phrase "likely to result in reversal or an order for a new trial" goes to "the significance of the substantial issue to the ultimate disposition of the appeal." Id. Because a substantial question of law or fact may nonetheless be harmless or have no prejudicial effect or be insufficiently preserved in the circumstances of a particular case, in order to find that reversal or a new trial is likely, the Court must conclude "that the question is so integral to the merits of the conviction on which defendant is to be imprisoned that a contrary appellate holding is likely to require reversal of the conviction or a new trial." Id.

IV. DISCUSSION

There is no indication at this point that the Defendant is a flight risk or a danger to the community, or that Defendant's appeal is for the purpose of delay. See Def.'s Br. 9, ECF No. 120; see generally Opp. Br., ECF No. 122. Nonetheless, the Court must consider (1) whether Defendant's appeal raises substantial questions of law or fact and, if so, (2) whether a decision favorable to Defendant on any of those questions on appeal is likely to result in reversal or an order for a new trial. Miller, 753 F.2d at 24.

Defendant contends that he will raise on appeal three evidentiary issues that present substantial questions of law or fact, and that these questions are likely to result in reversal of hisconviction or the granting of a new trial if decided in Defendant's favor. The Court analyzes each of the issues in turn below, noting that on appeal, in general, evidentiary rulings are reviewed for abuse of discretion, as "[t]he admission or exclusion of evidence is a matter particularly suited to the broad discretion of the trial judge." United States v. Casoni, 950 F.2d 893, 902 (3d Cir. 1991) (internal citations omitted). The Court of Appeals "exercise[s] plenary review, however, of [the district court's] rulings to the extent they are based on a legal interpretation of the Federal Rules of Evidence." United States v. Caldwell, 760 F.3d 267, 274 (3d Cir. 2014) (internal quotations and citations omitted). Because the Defendant has not shown that the issues below raise substantial questions of law or fact that are likely to result in reversal of his conviction on appeal, the Court will deny Defendant's motion.

A. Admission of Statements of Faisal Paracha

Defendant argues in the instant motion that the testimony of Krunal "Kenny" Banker ("Banker") regarding the contents of a list of doctors that Faisal Paracha ("Paracha") had shown him, a list that contained the Defendant's name among names of other doctors receiving kickback payments, was inadmissible hearsay, violated Defendant's rights under the Sixth Amendment's Confrontation Clause, improperly introduced evidence of prior bad acts under Federal Rule of Evidence 404(b), and violated Federal Rule of Evidence 1002.

At trial, Banker testified that he began to make kickback payments to various doctors on behalf of Orange Community M.R.I. in 2009. Trial Tr. 54, Sept. 24, 2013. Banker testified that he took over the task of making kickback payments from Paracha, who was then a sales executive at Orange Community M.R.I., and that he knew which doctors to pay because Paracha "showed [him] a list of who are the doctors that [Paracha] was paying." Id. at 59, 67. The Government asked whether the Defendant was one of the doctors who had received kickback payments fromParacha; Banker answered "Yes." Id. at 70-71. Banker testified further that Paracha showed him how to make lists to keep track of referrals that were made to Orange Community M.R.I. in connection with the kickback payments and how to calculate the amounts of the payments. Trial Tr. 67-70, Sept. 24, 2013. Banker also testified that he personally paid kickbacks to the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT