US v. Jackson, 94-40001-01/02-SAC.

• Decision Date: 07 November 1994
• Docket Number: No. 94-40001-01/02-SAC.,94-40001-01/02-SAC.
• Citation: 876 F. Supp. 1188
• Court: U.S. District Court — District of Kansas
• Parties: UNITED STATES of America, Plaintiff, v. Mark M. JACKSON, and Robert Martinez, Jr., Defendants.

876 F. Supp. 1188

UNITED STATES of America, Plaintiff, v. Mark M. JACKSON, and Robert Martinez, Jr., Defendants.

No. 94-40001-01/02-SAC.

United States District Court, D.Kansas.

November 7, 1994.

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Thomas J. Bath, Jr., James L. Eisenbrandt, Bryan Cave, Overland Park, KS, for Mark M. Jackson.

Thomas M. Bradshaw, Daniel O. Herrington, Armstrong, Teasdale, Schlafly & Davis, Kansas City, MO, for Robert Martinez, Jr.

Tanya J. Treadway, Kansas City, KS, Richard L. Hathaway, Office of U.S. Atty., Topeka, KS, for U.S.

MEMORANDUM AND ORDER

CROW, District Judge.

The case comes before the court on three post-trial motions. The defendant Mark M. Jackson ("Jackson") moves for a new trial (Dk. 187) and for dismissal based on variance (Dk. 189). The defendant Robert Martinez, Jr. ("Martinez") moves for a new trial (Dk. 193). The government has filed a response in opposition. For the reasons set out below, the court denies the defendant's motions.

Background

On January 5, 1994, a grand jury returned a thirty-two count indictment¹ against the defendants for their association and conduct with Parkview Hospital (Parkview), a private for profit psychiatric hospital in Topeka, Kansas. The defendant Mark Jackson had been an administrator at Parkview, and the defendant Robert Martinez had been a marketing representative with Parkview. The indictment alleged that the defendants bribed Louis Albert Garcia ("Garcia"), an employee assistance counselor with the United States Postal Service, to refer patients to Parkview. It further alleged that between approximately November of 1990 and January of 1992, the defendants paid Garcia $3,000 monthly and Garcia referred forty-three patients to Parkview.

Count one charges the defendants with conspiring to defraud the United States of the faithful services of its employee Louis Garcia, in violation of 18 U.S.C. § 371. Counts two through sixteen of the superseding indictment charge the defendants with bribery of Garcia in giving something of value in order to influence Garcia's official acts, in violation of 18 U.S.C. § 201(b)(1)(A). Counts seventeen through thirty-one of the superseding indictment charge the defendants with aiding and abetting Louis Garcia in supplementation of his federal salary, in violation of 18 U.S.C. §§ 2 and 209. Count thirty-two of the superseding indictment charges the defendants with conspiring to obstruct and impede a federal grand jury investigation, in violation of 18 U.S.C. §§ 371 and 1503.

After a two-week trial with thirty-seven witnesses, the case was submitted to the jury. The jury deliberated for approximately six hours spread over two days. On August 22, 1994, the jury returned a verdict finding both defendants guilty on the first thirty-one counts. The court released both defendants on secured bonds pending sentencing.

Standards for Motion for New Trial

A court may grant the defendant a new trial "if required in the interest of justice." Fed.R.Crim.P. 33. Courts view motions for new trial with disfavor and grant them only with great caution. United States v. Chatman, 994 F.2d 1510, 1518 (10th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 230, 126 L.Ed.2d 185 (1993); United States v. Leeseberg, 767 F.Supp. 1091, 1093 (D.Kan.1991). The defendant has the burden of proving the necessity of a new trial. United States v. Davis, 15 F.3d 526, 531 (6th Cir.1994); United States v. Cooley, 787 F.Supp. 977, 984 (D.Kan.1992), vacated on other grounds, 1 F.3d 985 (10th Cir.1993). For purposes of this case, the relevant rule is that a new trial should be granted upon "any error of sufficient magnitude to require reversal on appeal." 3 Charles A. Wright, Federal Practice and Procedure: Criminal 2d § 556 (1982); see United States v. Stiner, 765 F.Supp. 663, 664 (D.Kan.1991), aff'd, 952 F.2d 1401 (10th Cir.1992) (Table); United States v. Suntar Roofing, Inc., 709 F.Supp. 1526, 1530 (D.Kan.1989), aff'd, 897 F.2d 469 (10th Cir.1990).

Defendants' Motions for New Trial (Dks. 187 and 193)

The defendant Jackson asserts the trial court erred in seventeen respects. The defendant Martinez asserts all of the same errors except for four. The government correctly observes that most of these asserted errors were previously briefed by the parties and ruled upon by the court in one or more written orders. On those arguments that have been repeated, the court would have cause to simply dismiss them as raising nothing new and affirm its earlier rulings. To revisit rulings in the absence of new arguments would be a waste of judicial resources. For the most part, the defendants rely on conclusory arguments and offer little in additional authority or circumstances. Still, the court believes the issues are serious enough to require further consideration of their merit. For the case of reference, the court has grouped the asserted errors by common subject or theme.

A. Charter by the Sea Hospital

Louis Garcia testified that after the defendants left Parkview Hospital in Topeka, Kansas, they went to work for Charter by the Sea Hospital in St. Simon's Island, Georgia. Garcia said that Martinez called him from St. Simon's asking him to visit the facility and discuss with them the referral of postal employees. On two occasions in August and September of 1992, Garcia visited St. Simon's and his travel and lodging expenses were paid by Charter by the Sea. Garcia testified that on his visits they discussed his referral of patients in exchange for compensation through alternative channels, such as the hospital's sponsorship of functions conducted by organizations with which Garcia was associated. Garcia testified that he referred patients to Charter by the Sea and that the hospital paid the expenses for a meeting he arranged for the Ethnic and Cultural Concerns Committee for the Employee Assistance Professionals Association. At the conclusion of Garcia's testimony on this subject, the court gave a general limiting instruction pursuant to Rule 404(b) of the Federal Rules of Evidence. The instruction informed the jury, in part, "that this evidence was offered for the limited purpose of showing the motive, intent, plan, absence of mistake, if any, of the defendants with respect to the offenses charged." (Dk. 152 at 201).

Unaccompanied by substantive arguments, the defendants say this evidence was introduced without a proper foundation, without a specified proper purpose, and without sufficient notice under Rule 404(b). The court finds no merit in any of these contentions. First, the evidence does not exceed the scope of the government's 404(b) notice. The testimony was relevant in proving each of the limited purposes identified in the jury instruction. In particular, it goes to show the defendants courted and compensated Garcia not for his consulting and marketing skills but for his referral of patients. The defendants point to the fact that Garcia earlier gave a statement to postal inspectors denying any agreement for referring patients to Charter by the Sea. The defendants argue that Garcia's contrary testimony was unreliable and uncorroborated; thus, it should not have been admitted. Unlike United States v. Shepherd, 739 F.2d 510, 512-13 (10th Cir.1984), which the defendants cite as authority, the 404(b) testimony here is corroborated. Garcia's testimony about the arrangement at Charter by the Sea is evidenced by other than his testimony. In particular, Garcia visited St. Simon's Island on two occasions, Garcia referred patients to Charter by the Sea, and Garcia received a check from Charter by the Sea covering expenses for a committee meeting arranged by him.

The defendants' last argument on this subject is that the court's final jury instruction based on Rule 404(b) failed to specify the evidence to which the instruction applied. The only 404(b) evidence admitted was the Charter by the Sea arrangement. The only time the court gave the Rule 404(b) instruction during the presentation of evidence was immediately after Garcia's testimony about Charter by the Sea. Based on these circumstances, there is little chance of the jury being confused about what evidence was affected by the court's final jury instruction on Rule 404(b). "A defendant is not entitled to `specific wording of instructions.'" United States v. McGuire, 27 F.3d 457, 462 (10th Cir.1994) (quoting United States v. Bryant, 892 F.2d 1466, 1468 (10th Cir.1989), cert. denied, 496 U.S. 939, 110 S.Ct. 3220, 110 L.Ed.2d 667 (1990)). Viewed as a whole, the instructions are an accurate statement of the applicable law. Assuming there is error in not identifying the single piece of 404(b) evidence, the court is not convinced it is prejudicial when viewed in light of the entire record. See United States v. Self, 2 F.3d 1071, 1089 (10th Cir.1993).

B. Limiting Cross-Examination of Louis Garcia

The defendants' cross-examination of Garcia consumed nearly two full days of trial; yet, they argue a meaningful opportunity for cross-examination was denied them. Specifically, they were not allowed to ask Garcia about sentence guideline computations in his presentence report and about his depressive order evidenced in Garcia's own psychiatric records.

The court will not repeat what it has said on the presentence report in prior written orders. At trial, the defendants effectively cross-examined Garcia about the plea agreement and the five-year maximum sentence he faced on each count. The defendants even stacked the five-year maximums and cross-examined Garcia about a potential seventy-five year sentence. This examination provided the defendants with a full and fair opportunity to expose infirmities in Garcia's credibility without unduly confusing the jury with sentencing guideline calculations. The presentence report does not disclose Garcia's possible sentence in the event the government files a motion for downward departure based on...