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United States v. Malik

United States District Court, D. Maryland

June 18, 2018

UNITED STATES OF AMERICA
v.
ATIF BABAR MALIK, ET AL.

          MEMORANDUM AND ORDER

          MARVIN J. GARBIS UNITED STATES DISTRICT JUDGE.

         The Court has before it Atif B. Malik, M.D.'S Motion for a Judgment of Acquittal or a New Trial [ECF No. 283] and the materials submitted relating thereto.[1] The Court finds that a hearing is unnecessary.

         I. Introduction

         After an eleven day trial, on October 27, 2017 a jury found Defendant Atif Babar Malik (“Dr. Malik” or “Defendant”) guilty on each of the 26 Counts that were tried (Counts One to Seventeen and Nineteen to Twenty-Seven), [2] including charges of conspiracy to violate the Anti-Kickback Act (“AKA”) and the Travel Act, receipts of unlawful remuneration from violations of the AKA, violations of the Travel Act, and health care fraud.

         II. LEGAL STANDARDS

         By the instant motion, Defendant Malik seeks acquittal or a new trial on all Counts of conviction by virtue of Rules 29 and 33 of the Federal Rules of Criminal Procedure.

         A. Acquittal

         Rule 29(a) of the Federal Rules of Criminal Procedure provides in relevant part:

After the . . . close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.

         When the Defendant moves for acquittal under Rule 29, the Court considers whether “as a matter of law the government's evidence is insufficient ‘to establish factual guilt' on the charges in the indictment.” United States v. Riley, 21 F.Supp.3d 540, 543 (D. Md. 2014) (quoting United States v. Alvarez, 351 F.3d 126, 129 (4th Cir.2003)). The Court considers whether “a rational trier of fact could find the Defendant guilty beyond a reasonable doubt based on the evidence produced at trial, viewed in the light most favorable to the Government.” Id. (quoting United States v. Wilkins, 58 Fed.Appx. 959, 961 (4th Cir.2003)).

         B. New Trial

         Rule 33(a) of the Federal Rules of Criminal Procedure provides in relevant part:

Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.

         The Court applies a five-part test to determine if a defendant has established entitlement to a new trial based on newly discovered evidence. This test requires the Court to ask:

(i) [I]s the evidence, in fact, newly discovered;
(ii) [A]re facts alleged from which the court may infer due diligence on the part of the movant;
(iii) [I]s the evidence relied upon not merely cumulative or impeaching;
(iv) [I]s the evidence material to the issues involved; and
(v) [W]ould the evidence probably result in acquittal at a new trial?

United States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989). See also United States v. Bales, 813 F.2d 1289, 1295 (4th Cir. 1987). “Unless the answer to each of these inquiries is affirmative, a new trial is not appropriate.” Chavis, 880 F.2d at 793.[3]

         With regard to the fifth prong, the “district court is required to make a credibility determination.” United States v. Lighty, 616 F.3d 321, 374 (4th Cir. 2010). In doing so, “a district court should focus on whether a jury probably would reach a different result upon hearing the new evidence.” Id. Moreover, “the district court cannot view the proffered testimony in a vacuum; it must weigh the testimony against all of the other evidence in the record, including the evidence already weighed and considered by the jury in the defendant's first trial.” Id. (quoting United States v. Kelly, 539 F.3d 172, 189 (3d Cir. 2008)).

         A district court should exercise its discretion to grant a new trial “sparingly.” United States v. Palin, 874 F.3d 418, 423 (4th Cir. 2017), cert. denied, 138 S.Ct. 1451 (2018), and cert. denied sub nom. Webb v. United States, 138 S.Ct. 1605 (2018).

         III. DISCUSSION

         The defense contends that the Government failed to produce evidence from which the jury properly could have convicted Defendant Malik on the Anti-Kickback Statute charges (Count One and Counts Two to Thirteen), [4] the Travel Act charges (Count One and Counts Fourteen to Seventeen), and the Health Care Fraud and False Statement charges (Counts Nineteen to Twenty-Seven).

         A. Anti-Kickback Act Charges

         Count One of the Superseding Indictment charges conspiracy to violate the Anti-Kickback Act (“AKA Object”) and the Travel Act (“Travel Act Object”). As to the AKA Object, the Superseding Indictment charges a scheme to violate two provisions - 42 U.S.C. § 1320a-7b(b)(1)(A) and (b)(2)(A) - by paying and receiving kickbacks in return for referring patients of Advanced Pain Management Services (“APMS”) to Accu Reference for urine toxicology testing services for which payment was made by Medicare.

         42 U.S.C. § 1320a-7b(b)(1)(A) provides:

[W]hoever knowingly and willfully solicits or receives any remuneration (including any kickback . . .) directly or indirectly, overtly ...

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