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United States v. Narang

United States District Court, S.D. Texas, Houston Division

May 14, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
HARCHARAN SINGH NARANG and DAYAKAR MOPARTY, Defendants.

          MEMORANDUM OPINION AND ORDER

          SIM LAKE UNITED STATES DISTRICT JUDGE

         In May of 2017 an Indictment was returned charging Dr. Harcharan Singh Narang ("Dr. Narang"), Dayakar Moparty ("Moparty") (collectively, "Defendants"), and Dr. Gurnaib Singh Sidhu ("Dr. Sidhu") with health care fraud and related charges arising out of a conspiracy that began in 2012.[1] Dr. Sidhu pled guilty to Conspiracy to Commit Healthcare Fraud in violation of 18 U.S.C. § 134 9 pursuant to a plea agreement with the government.[2]The charges against Dr. Narang and Moparty were tried to a jury.[3]After the government rested, Defendants moved for a mistrial.[4] The court reserved a ruling on the motion until it had been fully-briefed by the parties.[5] At the conclusion of an eight-day jury trial both Defendants were convicted of all 21 counts in the Indictment.[6] Pending before the court is Defendants' Motion for Mistrial with Memorandum in Support ("Defendants' Motion"), Docket Entry No. 179.

         Defendants argue two bases for mistrial. First, Defendants argue that the government improperly referred to Dr. Sidhu's guilty plea in the presence of the jury without calling Dr. Sidhu as a witness. Second, Defendants argue two points of error in the testimony of one of the government's expert witnesses, Dr. Peter Grant ("Dr. Grant"). Defendants contend that the government misled the defense about Dr. Grant's prior experience as an expert witness and that Dr. Grant offered inadmissible evidence to the jury during his testimony. For the reasons explained below, Defendants' right to a fair trial was not compromised by any of the alleged errors, and Defendants' Motion will be denied.

         I. Introduction of Dr. Sidhu's Guilty Plea

          Defendants argue that the government improperly introduced Dr. Sidhu's guilty plea to the jury on two occasions. First, during its opening argument the government stated that Dr. Sidhu "is a co-conspirator in this case" but that "Dr. Sidhu is not in this trial because he has already pled guilty."[7] Defendants did not object to this statement.

         Second, Defendants argue that the government elicited the following improper testimony from Kevin Lammons, an FBI Agent who oversaw the investigation into Defendants:

Q. Okay. And we haven't talked a lot about Dr. Sidhu yet. We've heard that he was working with Dr. Narang but haven't seen him in this trial. Why is that?
A. He's already pled guilty.[8]

         Counsel for both Defendants objected to Agent Lammons' testimony as improper under Federal Rule of Evidence 4 03 and in violation of the confrontation clause, and asked the court for a limiting instruction requiring the jury to disregard the testimony.[9] The court responded by immediately providing a limiting instruction requiring the jury not to consider Dr. Sidhu's guilty plea as evidence.[10] The court rejected Defendants' confrontation clause challenge because Defendants had the ability to subpoena Dr. Sidhu in the event the government did not call him as a witness.[11]

         "Defendants are entitled to have questions of guilt based on the evidence against them, 'not on whether a government witness or a codefendant has plead guilty to the same charge." United States v. Delgado, 401 F.3d 290, 299 (5th Cir. 2005) (citing United States v. Black, 685 F.2d 132, 135 (5th Cir. 1982)). In reviewing the propriety of the government's introduction of a codefendant's guilty plea, the court considers the factors articulated by the Fifth Circuit in United States v. King, 505 F.2d 602 (5th Cir. 1974): (1) the presence or absence of a limiting instruction; (2) whether there was a proper evidentiary purpose for introduction of the guilty plea; (3) whether the plea was improperly emphasized or used as substantive evidence of guilt; and (4) whether the introduction of the plea was invited by defense counsel. Id. at 608; United States v. Murray, 988 F.2d 518, 523 (5th Cir. 1993).

         The government does not contest that counsel for Defendants did not invite the government's introduction of Dr. Sidhu's plea. The court must therefore apply the remaining three King factors to determine whether the government's introduction of Dr. Sidhu's plea is reversible error.

         A. Limiting Instruction

         When Defendants objected to Agent Lammons' testimony the court immediately complied with Defendants' request to issue a limiting instruction requiring the jury not to consider Dr. Sidhu's plea as evidence of Defendants' guilt:

Dr. Sidhu is not here. He did plead guilty. The fact that he's guilty is not evidence that any other person is guilty of any wrongdoing. His case was considered separately, and you're not to draw any adverse inference from the fact that Dr. Sidhu may believe he is guilty. It's not relevant to this case. These defendants are presumed to be innocent. The fact that somebody else may be guilty does not in any way affect the presumption of innocence that cloaks them and remains with them until such time, if ever, that the government can prove these defendants guilty of anything.[12]

         The court also requested that the parties submit an agreed instruction for the court to give the jurors at the conclusion of the evidence. The court charged the jury with the parties' agreed instruction:

You have heard that Dr. Sidhu pled guilty to a crime. Do not consider his plea as any evidence of guilt. It is not. Dr. Sidhu's decision to plead guilty was a personal decision. Disregard Dr. Sidhu's guilty plea completely when considering DR. NARANG or DAYAKAR MOPARTY's guilt or innocence. As I instructed you during the trial, Dr. Sidhu's guilty plea is not to be considered by you in any way as you decide whether the government has met its burden to prove beyond a reasonable doubt that DR. NARANG or DAYAKAR MOPARTY committed the crimes alleged in the indictment.[13]

         The Fifth Circuit has recognized the "almost invariable assumption" that jurors follow limiting instructions. United States v. Ramos-Cardenas, 524 F.3d 600, 611 (5th Cir. 2008) (internal quotations omitted). The court firmly instructed the jury to completely disregard Dr. Sidhu's plea both (1) when Defendants objected during trial and (2) at the conclusion of trial when the court instructed and charged the jury. These two forceful limiting instructions undermine Defendants' argument that the introduction of Dr. Sidhu's guilty plea compromised their right to a fair trial and weigh against granting Defendants' Motion.

         B. Use as Substantive Evidence

         Defendants argue that the government's introduction of Dr. Sidhu's guilty plea was "clearly meant to be used as substantive evidence of guilt."[14] "[E]vidence about the conviction of a coconspirator is not admissible as substantive proof of the guilt of a defendant." United States v. Leach, 918 F.2d 464, 467 (5th Cir. 1990). It is undisputed that Defendants are entitled to have the question of their guilt determined based on the government's evidence against them and not by the fact that Dr. Sidhu pled guilty. Dr. Sidhu's plea was mentioned only twice during an eight-day trial: first by the government during its opening statement and second by Agent Lammons during his direct examination by the government. The government did not improperly emphasize Dr. Sidhu's guilty plea or attempt to lead the jury to draw any improper inference from it. Both references to Dr. Sidhu's plea were in the context of explaining why Dr. Sidhu, who played a central role in the scheme alleged by the government and who was charged in the same indictment as Defendants, was not present at trial.

         Dr. Sidhu's guilty plea was not admitted as substantive evidence: The statement made by the government during its opening statement is not evidence, and the jury was instructed as such before opening statements began.[15] After Agent Lammons testified that Dr. Sidhu pled guilty, the court instructed the jury that Dr. Sidhu's plea "is not evidence that any other person is guilty of any wrongdoing."[16] The fact that evidence of Dr. Sidhu's guilty plea was neither improperly emphasized by the government nor considered by the jury as substantive evidence of Defendants' guilt weighs against any argument that Defendants' right to a fair trial was compromised.

         C. Legitimate Purpose

         Defendants argue that there was no proper evidentiary purpose for the government's introduction of Dr. Sidhu's guilty plea. The government points to two allegedly legitimate purposes for introducing Dr. Sidhu's plea: (1) to counter Defendants' efforts to paint Dr. Sidhu as the mastermind of the scheme; and (2) to counteract ...


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