United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE UNITED STATES DISTRICT JUDGE
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. 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.The charges against Dr. Narang and Moparty
were tried to a jury.After the government rested, Defendants
moved for a mistrial. The court reserved a ruling on the motion
until it had been fully-briefed by the parties. At the conclusion
of an eight-day jury trial both Defendants were convicted of
all 21 counts in the Indictment. Pending before the court is
Defendants' Motion for Mistrial with Memorandum in
Support ("Defendants' Motion"), Docket Entry
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
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." Defendants did not object to this
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.
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. The court responded by immediately
providing a limiting instruction requiring the jury not to
consider Dr. Sidhu's guilty plea as
evidence. 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.
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.
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
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
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
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
Use as Substantive Evidence
argue that the government's introduction of Dr.
Sidhu's guilty plea was "clearly meant to be used as
substantive evidence of guilt." "[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.
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. 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." 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.
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 ...