United States v. Akula

1

UNITED STATES OF AMERICA v. SHIVA AKULA

CRIMINAL ACTION No. 21-98

United States District Court, E.D. Louisiana

August 7, 2023

SECTION I

ORDER & REASONS

LANCE M. AFRICK UNITED STATES DISTRICT JUDGE

Before the Court is additional briefing^[1] by defendant Shiva Akula (“Akula”) pertaining to the government's motion in limine and notice of intent to use evidence pursuant to Federal Rule of Evidence 404(b). The government filed replies to Akula's briefing.^[2] For the reasons that follow, the Court alters in part its prior order regarding the government's motion in limine, orders Akula to provide notice of any planned advice-of-counsel defense, and defers decision as to the government's proposed Rule 404(b) evidence.

I. FACTUAL BACKGROUND

Akula is charged with 23 counts of health care fraud in violation of 18 U.S.C. § 1347.^[3] From February 2023 to June 2023, Akula represented himself in connection with these proceedings.^[4] On June 23, 2023, Akula filed a motion to enroll counsel.^[5]The Court granted that motion and, after briefing, granted Akula's motion to continue the trial, which was previously set to begin on July 10 2023.^[6] The trial is now set for October 30, 2023.^[7]

The Court previously set a briefing schedule for motions in limine and Rule 404(b) issues. Akula, who was proceeding pro se at the time, missed the deadline to file oppositions to the government's filings.^[8] The Court granted in part and deferred in part the government's motion in limine and took no action on the 404(b) filing.^[9]When the Court continued the trial, it granted Akula's newly enrolled counsel permission to file oppositions to both the government's motion in limine and the Rule 404(b) notice.^[10]

In the instant briefing, Akula offers arguments as to only certain portions of the government's motion in limine, addressed below, and states that he agrees with the unaddressed portions.^[11] He opposes the Rule 404(b) filing in full.^[12]

II. LAW & ANALYSIS

a. Motion in limine

In its order and reasons, the Court granted the government's motion to the extent that it sought to exclude “evidence and argument suggesting civil or administrative punishment might be more appropriate than criminal prosecution,” finding that “such evidence invites jury nullification.”^[13] Akula now “submits that he has no intention of suggesting a civil or administrative action would be more appropriate [than criminal charges]” but argues that he “should not be precluded from stressing the significant burden of proof in a criminal trial as compared to a civil trial.”^[14] He “requests that the Court refrain from ordering a complete bar to mention of civil or administrative action,”^[15] but, as the government points out, the Court's order and reasons does not preclude Akula from emphasizing the government's burden of proof in a criminal case, and if there are additional reasons for permitting such evidence, counsel may approach the bench at trial and request permission to do so. The government's motion only requested that Akula be excluded from suggesting that civil punishment is more appropriate than criminal prosecution, and Akula apparently does not take issue with that restriction. Accordingly, the Court will not alter its order in this respect.

The Court previously granted the government's motion to the extent it sought to exclude evidence of good deeds, specifically evidence that Akula treated patients during the COVID-19 pandemic and benefited the community through his nonprofit foundation.^[16] In doing so, the Court noted that “[a] defendant may only present evidence of specific instances of conduct when his character or character trait is an essential element of a charge, claim or defense.”^[17] Akula does not dispute this conclusion, and agrees that his “character is not an essential element of the charges here,” but nevertheless argues that “it is possible that evidence of specific acts may become relevant and admissible as part of [his] defense.”^[18] He therefore requests that the Court reserve ruling on this issue, and states that counsel will approach the bench before presenting such evidence.^[19] Because Akula appears to agree with the Court's legal conclusion on this issue, it is not clear to the Court why it should alter its previous order. Accordingly, the Court's order will remain unchanged. However, should Akula believe that a particular piece of such evidence is relevant and admissible, counsel may approach the bench for permission to introduce it at trial.

The Court granted the government's motion to the extent that it sought to exclude testimony regarding Akula's “own self-serving statements made to law enforcement agents, government investigators, or other witnesses.”^[20] Though the Court granted the motion in this respect, it also noted that “should there be an evidentiary basis for admission of such statements, counsel may approach the bench and seek court approval for the same at trial.”^[21] Akula now argues that the “Court should reserve ruling with respect to any purportedly inadmissible hearsay statements,”^[22] though he does not dispute the Court's conclusion that self-serving hearsay statements are generally inadmissible. Because the Court has already indicated that the parties may approach the bench to obtain permission to introduce such statements if there is a basis for doing so, the Court need not revise its previous order.

The Court previously deferred the government's motion to the extent it sought to prohibit Akula from introducing interview reports prepared by law enforcement agents for the purpose of impeaching government witnesses.^[23] The Court deferred this portion of the motion because it was not presented with arguments as to any specific witness statements. Akula now argues that “[t]o the extent interview reports prepared by law enforcement officers contain substantially verbatim recitals of witness statements or are otherwise adopted by the witness, [he] should be permitted to use those statements for prior inconsistent statement impeachment and in general for other permissible purposes.”^[24] However, the Court still has not been presented with any arguments as to any specific witness statements, and need not alter its previous order deferring this portion of the government's motion.

The Court previously granted the government's motion to the extent that it sought to exclude arguments suggesting selective prosecution.^[25] Akula “agrees that trial is not the avenue by which to raise a claim of selective prosecution,” but argues that “he should not be generally barred from asserting claims of being ‘singled out' as such claims pertain to motives or credibility of individual witnesses.”^[26] However, as the government points out, the Court's previous order does not prevent Akula from cross-examining witnesses regarding bias. Accordingly, the Court need not alter its order in this respect.

The Court previously deferred the government's motion to the extent it sought to exclude “evidence or argument that Medicare or other entities that monitored Canon were negligent with regard to their monitoring or discovery of alleged fraud.”^[27]The Court noted that “[a] victim's negligence is not a defense to criminal conduct,” but deferred ruling on the issue “to allow the parties to provide further context.”^[28]Akula now argues that “his reliance on the negligence of Medicare or other related parties may be relevant to negate willfulness” and evidence of negligence should be admissible for that purpose.^[29] Akula's only authority for this assertion is the general definition of willfulness. Because the Court previously deferred this portion of the government's motion, and Akula's briefing does not clearly show how such evidence might be admissible, the Court will not alter its previous order.

The Court previously granted the government's motion to the extent it sought to preclude Akula from raising the defense of advice of counsel.^[30] The Court noted that “[c]ourts have discretion to order pretrial notice of an advice-of-counsel defense” but that such notice had not been ordered in this case. United States v. Hagen, 485 F.Supp.3d 737, 813-14 (N.D. Tex. 2020) Because Akula had not indicated that he planned to raise the issue and had not identified any evidence to support its application, the Court granted the motion in this respect as unopposed.^[31] Akula now argues that he “should be permitted to offer evidence as to advice of counsel to negate the willfulness element of these charges and is not barred from doing so by any notice provision.”^[32] He requests that the Court either deny the government's motion in this respect or reserve ruling on the issue pending further briefing.^[33] The government requests that the Court order Akula to provide notice of his intention to raise the defense prior to trial.^[34] The Court has inadequate information to make a ruling on the issue at this time, and will therefore order Akula to provide notice of any planned advice-of-counsel defense by August 18, 2023, and will order additional briefing, if appropriate, prior to trial. The Court will accordingly alter its order on the motion in limine to defer ruling on the issue.

b. Rule 404(b) Evidence

In its notice of intent to use evidence pursuant to Rule 404(b), the government stated that it intends to introduce two categories of evidence at trial: evidence related to Medicare investigations and audits of Canon beginning in December of 2014 and continuing through 2017, as well as evidence related to alleged “post-indictment bullying of witnesses.”^[35] Akula has now objected to both categories.

Federal Rule of Evidence 404(b) provides that “[e]vidence of any other crime, wrong, or act is not admissible to prove...