Lawyers for the Forest Park Medical Center officials convicted in February of operating a bribery and kick-back scheme have presented no evidence and made no substantive legal arguments showing that they deserve a new trial, according to federal prosecutors in Dallas.
In a 179-page brief filed this week, the U.S. Attorney’s Office for the Northern District of Texas systematically disputed and rejected every single claim made by four surgeons and three other hospital personnel about the unfairness of the seven-week trial earlier this year that left them convicted of multiple charges ranging from conspiracy to money laundering.
“In the end, no defendant comes close to establishing the sort of extraordinary circumstances that warrant the rare and extreme remedy of a new trial,” assistant U.S. attorneys Andrew Wirmani and Marcus Busch argue in court documents.
“Instead, the defendants’ challenges are a conglomeration of arguments this court previously rejected, arguments forfeited because the defendants failed to raise them at trial, and arguments generally lacking in merit,’ the prosecutors wrote. “This court should deny each defendant’s motion for new trial in its entirety.”
The federal government in 2016 charged 21 Forest Park officials, including eight doctors, with operating an illegal scheme that resulted in them receiving an estimated $40 million in kickbacks. A dozen of the Forest Park officials pleaded guilty at various times throughout the case.
Nine defendants went to trial. The jury found one surgeon, Dr. Nick Nicholson, not guilty of the charges against him. The jury was unable to reach a verdict in the charges against Cari Hempel, the director of bariatric services at Forest Park, but she has since pleaded guilty to a single misdemeanor count in an agreement with prosecutors.
The defendants who were convicted, Dr. Michael Rimlawi, Dr. Michael Shah, Dr. Douglas Won, Dr. Shawn Henry, co-administrator Mac Burt, nurse Iris Forrest and executive Jackson Jacob, filed motions seeking a new trial in July and August.
In the voluminous brief filed late Monday, prosecutors said that new trials in criminal cases should only be granted by trial judges when there is an obvious “miscarriage of justice or where the evidence preponderates heavily against the verdict.”
There is no such evidence in this case, they said.
The prosecutors rejected the defendants’ claim that they did not receive sufficient notice that their actions were illegal and that the law was overly vague.
“The jury in this case — based on seven-and-a-half weeks of testimony — found that Rimlawi, and all other convicted defendants, knew beyond a reasonable doubt that their conduct was unlawful,” according to Wirmani and Busch.
“Given this finding, the defendants cannot plausibly claim that they lacked notice that their conduct was unlawful because the jury found that they had more than notice—they knew, under the highest standard of proof in the law, that their conduct was illegal,” the prosecutors argue. “So the defendants’ vagueness challenge fails and the court’s analysis of the issue should go no further.”
Wirmani and Busch stated that it “is undisputed that lawyers told Rimlawi and similarly situated defendants that the conduct they were charged with and convicted of — directly or indirectly accepting marketing money for patient referrals — was illegal.”
The prosecutors point out that lawyer Teresa Ford approved for Rimlawi and Won an agreement that “strictly prohibited” remuneration in exchange for business generated for the hospital, or so-called patient referrals. They also note that another lawyer, William Meier, “expressly, unambiguously, and repeatedly told Rimlawi and other defendants that they could not accept FPMC’s marketing money in exchange for patients.”
Lawyers for Won and Rimlawi contend that the U.S. District Judge Jack Zouhary committed reversible error by failing to give the jury a specific advice-of-counsel instruction.
Prosecutors described that argument as “meritless.”
“It is undisputed that Won and Rimlawi did not consult Ford or Meier about FPMC’s marketing payments before taking action,” they state. “Instead, Ford was consulted months after the payments began, and Meier was consulted over a year later. Both lawyers told their clients the money had to be spent on marketing.
‘Won and Rimlawi indisputably did not spend all the money on marketing,” Wirmani and Busch noted.
The prosecutors also point out that “nothing prevented the jury from considering Won’s and Rimlawi’s purported defense.”
“The court permitted Ford and Meier to testify to all advice they gave their clients (as distinct from improper expert or opinion testimony). Under the court’s instructions, if the jury believed that the defendants misunderstood the law as a result of their counsel’s advice, then it is evident that the defendants did not have a ‘specific intent to do something . . . with the bad purpose either to disobey or disregard the law.’”
“The defendants had carte blanche during opening and closing to argue that Ford’s and Meier’s advice precluded a finding of willfulness — and they did,” prosecutors state.
Lawyers for Rimlawi, Shah, Henry, and Burt argue that the government violated the prohibition against golden-rule statements by telling the jury that they were the victims of the defendants’ crimes.
The so-called “golden rule” prohibits lawyers from asking jurors to “put themselves in the shoes of the plaintiff and to do unto him as they would have done unto them.” The technique is considered improper because “it encourages the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence.”
Similarly, prosecutors in criminal cases are discouraged from encouraging a jury to decide a case on the basis of personal interest or bias rather than on the evidence and the law.
Wirmani and Busch argue that “although the prosecution may not appeal to the jury’s passions and prejudices,” prosecutors may “appeal to the jury to act as the conscience of the community” and “impress upon the jury the seriousness of the charges.”