United States v. Gibbs

MEMORANDUM OPINION AND ORDER

BARBARA M. G. LYNN, CHIEF JUDGE

Before the Court are the Motion for Judgment of Acquittal filed by Mark E. Gibbs (Dkt. 1122), the Motion for Judgment of Acquittal and Motion for New Trial filed by Laila N. Hirjee (Dkt. 1124), the Motion to Set Aside Verdict or Judgment of Acquittal filed by Tammie L. Little (Dkt. 1121), and the Motion for New Trial filed by Tammie Little and Mark Gibbs (Dkt. 1123). For the following reasons, the Motions are DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 24, 2021, a jury convicted Defendant Mark E. Gibbs of Counts One, Five, Six, and Fifteen, Defendant Laila N. Hirjee of Counts One, Eight, Nine, Ten, and Fourteen, and Defendant Tammie L. Little of Counts One, Two, Three, and Four of the Superseding Indictment (Dkt. 1085). Count One charged Gibbs, Hirjee, and Little (collectively, “Defendants”) with conspiracy to commit health care fraud in violation of 18 U.S.C. §§ 1347, 1349. Counts Two through Seven charged Defendants with substantive health care fraud under 18 U.S.C. § 1347 and 18 U.S.C. § 2. Count Fourteen charged Hirjee with unlawful distribution of a controlled substance under 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2. Count Fifteen charged Gibbs with conspiracy to obstruct justice under 18 U.S.C. §§ 371, 1505. At trial, Defendants

moved for acquittal pursuant to Federal Rule of Criminal Procedure 29(a), which the Court denied. Following trial, Defendants moved for judgment of acquittal under Federal Rule of Criminal Procedure 29(c)(2), which the Court again denied. Defendants now move for judgment of acquittal and, in the alternative, for new trials under Federal Rule of Criminal Procedure 33.

II. MOTION FOR ACQUITTAL

Rule 29 requires the Court to grant a judgment of acquittal despite a guilty verdict where there is insufficient evidence to sustain a conviction. Fed. R. Crim. P. 29. Evidence to support a conviction is sufficient if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Vargas-Ocampo, 747 F.3d 299, 303 (5th Cir. 2014). A court must give great deference to the jury's verdict, reviewing evidence “in the light most favorable to the verdict, accepting all credibility choices and reasonable inferences made by the jury.” United States v. Moparty, 11 F.4th 280, 296 (5th Cir. 2021) (quoting United States v. Chapman, 851 F.3d 363, 376 (5th Cir. 2017)) (internal quotation marks omitted). The jury retains the sole authority to weigh any conflicting evidence and evaluate witness credibility. United States v. Loe, 262 F.3d 427, 432 (5th Cir. 2001). The Court does not determine whether the verdict was correct, but rather, “whether the jury's decision was rational.” United States v. Martinez, 921 F.3d 452, 466 (5th Cir. 2019). A verdict based on “mere suspicion, speculation, or conjecture, or on an overly attenuated piling of inference on inference” is not considered rational. United States v. Pettigrew, 77 F.3d 1500, 1521 (5th Cir. 1996).

Defendants move for judgment of acquittal on all counts, arguing that the evidence presented at trial was insufficient to sustain each defendant's respective convictions. See Dkts. 1122, 1121, 1124. The Court has reviewed Defendants' motions, as well as the testimony and exhibits presented before the jury, and concludes that the evidence presented at trial, viewed in

the light most favorable to the Government, was sufficient to support the jury's verdict as to the counts against all Defendants for health care fraud and conspiracy to commit fraud, the count against Hirjee for unlawful distribution of a controlled substance, and the count against Gibbs for conspiracy to obstruct justice.

Accordingly, because the evidence presented in this case was sufficient to support the jury's verdict on all counts, Defendants' motions for judgment of acquittal are denied.

III. MOTION FOR A NEW TRIAL

Following the verdict, Gibbs, Hirjee, and Little each moved for a new trial under Federal Rule of Criminal Procedure 33. Rule 33 permits the district court to grant a new trial “if the interest of justice so requires.” Fed. R. Crim. P. 33; United States v. Mahmood, 820 F.3d 177, 190 (5th Cir. 2016). The “interest of justice, ” moreover, may be determined by the “trial judge's evaluation of witnesses and weighing of the evidence.” United States v. Wall, 389 F.3d 457, 465-66. (5th Cir. 2004). Although the Court has broad discretion in ruling on a Rule 33 motion, it may not grant a new trial unless “the evidence preponderates heavily against the verdict such that it would be a miscarriage of justice to let the verdict stand.” United States v. Fuchs, 467 F.3d 889, 910 (5th Cir. 2006). These motions are “disfavored and must be reviewed with great caution.” United States v. Eghobor, 812 F.3d 352, 363 (5th Cir. 2015). Rule 33 divides motions for a new trial into two categories: motions based on newly discovered evidence, and motions based on “other grounds.” Fed. R. Crim. P. 33; Wall, 389 F.3d at 466.

Defendants have all moved for a new trial based on “other grounds.” First, Defendants contend a new trial is warranted because the weight of the evidence at trial is against the verdict. However, the Court has already concluded that there was sufficient evidence presented at trial to

support the jury's verdict, and accordingly, letting the verdict stand will not result in a miscarriage of justice.

Second, Defendants argue that COVID-19 protocols during jury selection resulted in a venire panel that violated the Defendants' Sixth Amendment rights. Under the Sixth Amendment, a defendant is entitled for the jury to be drawn from a “fair cross section” of the community. Berghuis v. Smith, 559 U.S. 314, 319 (2010). The Sixth Amendment's fair-cross-section requirement precludes the Government from excluding particular “distinctive” groups from a venire panel. Duren v. Missouri, 439 U.S. 357, 357 (1979). To establish a prima facie violation of the Sixth Amendment's fair-cross-section requirement, a defendant must show that (1) “the group alleged to be excluded is a ‘distinctive' group in the community; (2) that the group's representation in the source from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation results from systematic exclusion of the group in the jury-selection process.” Id. at 357. Once a defendant has shown a prima facie violation, the burden shifts to the Government to show that attaining a fair cross-section is incompatible with a significant state interest. Id. at 368.

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