United States District Court, D. Maryland
MEMORANDUM AND ORDER
J. GARBIS UNITED STATES DISTRICT JUDGE.
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. The Court finds that a
hearing is unnecessary.
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),  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.
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.
29(a) of the Federal Rules of Criminal Procedure provides in
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
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)).
33(a) of the Federal Rules of Criminal Procedure provides in
Upon the defendant's motion, the court may vacate any
judgment and grant a new trial if the interest of justice so
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
(iv) [I]s the evidence material to the issues involved; and
(v) [W]ould the evidence probably result in acquittal at a
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
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)).
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).
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),  the Travel Act charges
(Count One and Counts Fourteen to Seventeen), and the Health
Care Fraud and False Statement charges (Counts Nineteen to
Anti-Kickback Act Charges
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.
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 ...