US v. Harpster, 90-20048-01.

• Decision Date: 11 March 1991
• Docket Number: No. 90-20048-01.,90-20048-01.
• Parties: UNITED STATES of America, Plaintiff, v. Gene O. HARPSTER, M.D., Defendant.
• Court: U.S. District Court — District of Kansas

759 F. Supp. 735

UNITED STATES of America, Plaintiff, v. Gene O. HARPSTER, M.D., Defendant.

No. 90-20048-01.

United States District Court, D. Kansas.

March 11, 1991.

Michael E. Francis, Topeka, Kan., for defendant.

Robert S. Streepy, Asst. U.S. Atty., Topeka, Kan., for plaintiff.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, Chief Judge.

This matter is before the court on defendant's motion for new trial, based upon newly discovered evidence, pursuant to Rule 33 of the Federal Rules of Criminal Procedure. A hearing was held on the matter on February 22, 1991. For the reasons set forth below, the court will deny defendant's motion.

Defendant, a local physician, was indicted on fourteen counts of mail fraud by a federal grand jury on June 20, 1990. In counts 1 through 8 of the indictment, defendant was charged with devising a scheme to defraud Employes' Benefit Association ("EBA"), a hospital association which provides health care benefits to Santa Fe Railroad ("Santa Fe") employees. Specifically, the counts alleged that defendant had directed his office personnel to complete and mail to EBA claim forms containing charges for services not actually rendered to patients. In counts 9 through 14 of the indictment, defendant was charged with devising a scheme to defraud EBA by mailing claim forms containing incorrect CPT codes for patient blood tests.

A jury trial was held on August 20-24, 1990. At the close of all of the evidence, the court granted defendant's motion for judgment of acquittal with respect to Counts 9 through 14 of the indictment. Defendant was subsequently found guilty by the jury on Counts 1 through 8 of the indictment.

At trial, the government's evidence established that, between 1986 and 1988, the defendant regularly treated approximately seventy-five Santa Fe employees and billed EBA for the services rendered. In early 1988, EBA's claims staff and director became concerned about the defendant's billing practices. Specifically, the director Sue Morris indicated that the defendant seemed to be treating Santa Fe patients on a "very frequent" basis. Record at 27. Further, Morris indicated that defendant's fees per visit appeared to be "excessive." Id. Based upon these concerns, Morris consulted with EBA's medical director and stopped payment to the defendant. After investigation, it was discovered that defendant's office had sent claim forms to EBA for Santa Fe employees who had been scheduled to see the defendant but had not shown up for their appointments. Rather than indicating that the patients had not shown up, the claim forms indicated that the defendant had seen and treated each patient.

Although defendant denied directing his office staff to prepare and send EBA fraudulent claim forms,¹ two former employees of the defendant, Richard Hamm and Kathleen Kirkham, testified to the contrary.² Hamm, who had been responsible for insurance billing and other office duties, testified that the defendant had expressly directed him to bill EBA for patients that did not show up for scheduled appointments.³ Kirkham, who was an office manager for defendant, testified that she was aware that the defendant was directing his office personnel to bill EBA for patients who missed appointments.⁴

After the trial and sentencing, and after having filed an appeal with the Tenth Circuit, defendant and his counsel discovered new evidence indicating that both Hamm and Kirkham may have embezzled insurance proceeds from defendant's practice.⁵ Specifically, defendant discovered evidence that Hamm had allegedly endorsed and cashed, without defendant's knowledge or approval, approximately six checks from EBA totalling in excess of $6,000.00. With respect to Kirkham, defendant discovered that she had allegedly embezzled the proceeds of checks from another insurer. Additionally, defendant discovered that Hamm had previous convictions for theft and burglary.

Based upon this newly discovered evidence, defendant now urges the court to certify to the Tenth Circuit that it would grant his motion for new trial on remand. In response, the government argues that the evidence is cumulative or impeaching and does not entitle defendant to a new trial.

A district court may grant a motion for new trial "if required in the interest of justice." Fed.R.Crim.P. 33. In order to obtain a new trial under Rule 33 based upon newly discovered evidence, the defendant must show that: (1) the evidence was discovered after trial; (2) the failure to learn of the evidence was not caused by his own lack of diligence; (3) the new evidence is not merely cumulative or impeaching; (4) the new evidence is material to the principal issues involved; and (5) the new evidence is of such a nature that in a new trial it would probably produce an acquittal. United States v. Sutton, 767 F.2d 726, 728 (10th Cir.1985); United States v. Conzemius, 611 F.2d 695, 696 (8th Cir.1979); see also United States v. Sjeklocha, 843 F.2d 485, 487 (11th Cir.1988). However, the Tenth Circuit has indicated that such motions are "not regarded with favor and should be granted only with great caution...." Sutton, 767 F.2d at 728 (citing United States v. Allen, 554 F.2d 398, 403 (10th Cir.), cert. denied, 434 U.S. 836, 98 S.Ct. 124, 54 L.Ed.2d 97 (1977)).

After carefully reviewing the newly discovered evidence submitted by the defendant, the court is unable to conclude that the introduction of such evidence at a new trial would probably produce an acquittal. Generally, newly discovered evidence which is merely cumulative or impeaching will not justify the granting of a new trial. Mesarosh v. United States, 352 U.S. 1, 9, 77 S.Ct. 1, 5, 1 L.Ed.2d 1 (1956); United States v. McMahan, 852 F.2d 337, 339 (8th Cir.1988); United States v. Anderson, 532 F.2d 1218, 1230 (9th Cir.), cert. denied, 429 U.S. 839, 97 S.Ct. 111, 50 L.Ed.2d 107 (1976). However, as pointed out by the defendant, it is within the district court's discretion to grant a new trial if "it appears that had the impeaching evidence been introduced, it is likely that the jury would have reached a different result." United States v. Davila, 428 F.2d 465, 466 (9th Cir.1970); accord United States v. Lipowski, 423 F.Supp. 864, 867 (D.N.J.1976); see also United States v. Atkinson, 429 F.Supp. 880, 885 (E.D.N.C. 1977) (holding that, in some circumstances, impeaching evidence is sufficiently important in the ascertainment of truth and in the interests of justice that a new trial should be ordered); U.S. v. Gordon, 246 F.Supp. 522, 525 (D.D.C.1965) (holding that the "serious nature" of cumulative or impeaching evidence may justify the court's granting of a new trial). Here, the newly discovered evidence submitted by the defendant is not cumulative but is unquestionably impeaching. Although its introduction at a new trial might cause jurors to more seriously question the veracity of Hamm and/or Kirkham, the court does not believe, in light of the overwhelming circumstantial evidence and the questionable credibility of the defendant's testimony, that a new trial would "probably" result in the defendant's acquittal on Counts 1 through 8 of the indictment.⁶ Accordingly, the court finds that the defendant has failed to demonstrate that he is entitled to a new trial.⁷

As a final matter, the court will deny the government's motion to reopen the evidentiary hearing. Further, the court notes that, in ruling on defendant's motion for new trial, it did not consider the affidavit of Leslie K. Haskins submitted with the government's motion to reopen.

IT IS THEREFORE ORDERED that defendant's motion for new trial based upon newly discovered evidence (Doc. # 33) is denied.

IT IS...