The purpose of this letter is to show that I, Omeed Memar, was wrongly convicted after Assistant Attorney General Stephen Lee lied in court.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
UNITED STATES OF AMERICA, )
) No. 15 CR 345
OMEED MEMAR, ) Judge Leinenweber
Motion for Judgment Notwithstanding the Verdict or in the Alternative for a New Trial
Dr. Omeed Memar, pursuant to Rules 29, 33 and 34 of the Federal Rules of Criminal Procedure, requests that the Court enter judgments of acquittal on all counts or alternatively grant a new trial on those counts or for arrest of judgment as to them.
Standard of Review
Judgment notwithstanding the verdict under Rule 29 is required when, viewing the evidence in the light most favorable to the government, no rational jury could have found the essential elements of the crime beyond a reasonable doubt. See United States v. Jones, 713 F.3d 336, 352 (7th Cir. 2013); Jackson v. Virginia, 443 U.S. 307 (1979). That standard, however, “does not require the defendant to demonstrate that no evidence at all supports the conviction, but rather that the evidence cannot support a finding of guilt beyond a reasonable doubt. …. The Supreme Court has held that a ‘mere modicum’ of evidence may satisfy a ‘no evidence’ standard; however, it could not by itself rationally support a conviction beyond a reasonable doubt.” United States v. Rahman, 34 F.3d 1331, 1337 (7th Cir. 1994).
While a verdict may rest upon circumstantial evidence, such cases require a district court to “carefully consider each inference necessary to prove all elements of the offense” to ensure that “[t]he government…not prove its case…’conjecture camouflaged as evidence.'” Jones, 713 F.3d at 340. Phrased differently, “although a jury may infer facts from other facts that are established by inference, each link in the chain of inferences must be sufficiently strong to avoid a lapse into speculation.” Id.
The standards for relief under Rule 33 are fundamentally different, since the “court may reweigh the evidence, taking into account the credibility of witnesses,” and is not required to consider the evidence in the light most favorable to the prosecution. United States v. Washington, 184 F.3d 653, 658 (7th Cir. 1999). As the Seventh Circuit explained:
A plethora of courts have recognized a fundamental distinction in the standards governing these two motions, and we agree with those courts. In considering a motion for judgment of acquittal [under Rule 29], a court must view all evidence in the light most favorable to the prosecution. That is not so in weighing a motion for a new trial [under Rule 33]. In such a motion, a court may properly consider the credibility of the witnesses, and may grant a new trial if the verdict is so contrary to the evidence that a new trial is required in the interest of justice. [citations omitted]. The focus in a motion for a new trial is not on whether the testimony is so incredible that it should have been excluded. Rather, the court considers whether the verdict is against the manifest weight of the evidence, taking into account the credibility of the witnesses.”
Id. at 657.
Measured against these standards, Dr. Memar’s conviction must be set aside.
The Evidence was not only Insufficient to Convict Dr. Memar Beyond a Reasonable Doubt, it was Against the Manifest Weight of the Evidence
Dr. Memar was convicted of health care fraud for having allegedly submitted claims to healthcare benefit providers that falsely claimed to have treated eight patients for actinic keratosis (i.e. precancerous skin lesions). The government’s case had three prongs.
First was the thesis that Intense Pulsed Light (IPL) alone is not a viable treatment for actinic keratosis. Second, because IPL is ineffectual for AK, Dr. Memar could not have believed he was actually treating that condition. Third, the patients did not actually have actinic keratosis. As discussed below, no rational jury could have found any of these beyond a reasonable doubt, since all of the evidence was to the contrary.
As to the first, the international medical community had unanimously recognized the efficacy of IPL for treating actinic keratosis during the period of the treatments in question. (Dr. Goldberg Tr. 881-886). The government’s expert, Dr. Ross, acknowledged this, and even his lone, purported dissent had actually lauded the “excellent” results of treating AK with IPL alone. (Dr. Ross Tr. 571-88).
As to the second–Dr. Memar’s belief in IPL for treating AK–the evidence was unrebutted that he even treated biopsy-confirmed AK patients in this way, one of whom had actual skin cancer. No rational juror could believe that Dr. Memar placed no faith in IPL under these circumstances, especially given (1) the supportive medical lore at the time, supra and (2) the actual success Dr. Memar’s AK patients experienced with that treatment. (Dr. Memar Tr. 1026; see also patient testimony infra).
Third, the evidence was unrebutted that Dr. Memar’s patients had the classic symptoms of actinic keratosis, no matter the inability of some of them to recall hearing those precise words in a conversation 5 – 10 years earlier. And pedantic nomenclature was irrelevant in this setting, since the government’s expert conceded that telling patients that they had spots that needed to be treated or removed was enough–the very thing Dr. Goldberg likewise told his patients and the very thing Dr. Memar’s patients said they were told. See infra.
In light of this evidence, the conviction cannot be sustained merely by intoning the familiar “viewed in the light most favorable to the government” standard or otherwise quibbling about the comparative “weight” of the evidence. The evidence above was uncontroverted. See United States v, General Elec. Co., 869 F.Supp. 1285, 1292 n.12 (S.D. Ohio 1994)(granting Rule 29 motion and stressing that “[t]he Court does not weigh this evidence, as it is uncontroverted. Rather, under the applicable standard, this evidence cannot be ignored in determining whether the inference the government seeks to draw is reasonable and would support a finding of guilt beyond a reasonable doubt.”). See also Kincaid v. United States, 682 F.2d 1220 (reversing denial of judgment notwithstanding verdict where “the district court incorrectly rejected the government’s position that the undisputed facts permitted no resolution other than a judgment for the Government.”). Compare Wiest v. Tyco Electronics Co., 812 F.3d 319, 332 n.9 (3d Cir. 2016)(“In reviewing grant of summary judgment, appellate court cannot ignore uncontested facts that render inferences unreasonable.”).
And as we have said, under Rule 33, the evidence is not viewed in the light most favorable to the government in any event. Washington, supra, 184 F.3d at 657.
The Government’s Witnesses
Dr. Memar’s former Medical Assistants
Former medical assistants Michelle Kline and Jennifer Gecas provided no competent evidence whatsoever for the proposition that Dr. Memar’s IPL patients did not actually have actinic keratosis. Neither recalled a single patient they had treated, their skin condition, or anything else. (Kline Tr. 240-42, 245-46; Gecas Tr. 324-26, 333). All they offered was hopelessly unparticularized testimony, thereby disqualifying themselves as competent witnesses. See Unnterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1211 (7th Cir. 1993)(“It would not be an abuse of discretion if a district court deemed a person to be an unworthy witness because he previously manifested an insufficient recollection of events.”); David v. Nettles, 2016 WL 1660503 *2 (N.D.Ill. Apr. 27, 2017)(“defense counsel raised the possibility that Niezabitowski may have told ASA Cargie that she could not recall any of the events at issue. If indeed she made such a statement, this would raise the issue of whether Niezabitowski is competent to testify. A simple voir dire proceeding before she is called to testify would resolve this issue. If she maintains she has no present memory, then she is not competent to testify”).
Moreover, Michelle Kline admitted not knowing what actinic keratosis and scaly plaques were, such that even if she had remembered particular patients, her testimony as to whether they had either condition would have been meaningless. (Kline Tr. 238-39; 245, 259-61). Kline also said that neither she nor Dr. Memar had committed fraud at his practice and praised Dr. Memar to a reporter after employment ceased. (Kline Tr. 239, 241). Ms. Gecas likewise professed her total ignorance of actinic keratosis to FBI Case Agent Ashley Davis. (Davis Tr. 667).
That left Dr. Memar’s medical assistant of 14 years, Christina Guttierez, called by the government in its case in chief. As Dr. Memar’s primary medical assistant when it came to administering IPL to actinic keratosis patients, Ms. Guttierez had been thoroughly trained to recognize AK. (Guttierez Tr. 445-47). She was adamant that each patient called by the government had it, which she knew from seeing the AK’s on their faces from 12 inches away as she administered IPL and before that when the patients were initially examined in her presence. (Guttierez Tr. 452, 454-55, 447-52, 464). She was equally insistent that Dr. Memar had never falsified medical records or done anything improper and never asked her to as to these or any other patients. (Guttierez Tr. 442-44). Had he done so, she would have found employment elsewhere and without difficulty given the offers she received and rejected while working for Dr. Memar. (Guttierez Tr. 444-45). With all her experience treating AK, Ms. Guttierez was clear that if she had AK, she would choose IPL alone as her treatment method. (Guttierez Tr. 456).
The Patients in the Indictment
Dr. Memar’s patients themselves supported Dr. Memar’s and Ms. Guttierez’s account that each had actinic keratosis. That some did not recall the words, “actinic keratosis” or “precancerous lesions,” was meaningless given the 5-10 year time gaps between their diagnosis and trial testimony.” It “merely demonstrate[d] that man’s mind does not portray past events recollected with the scientific and objective precision of a motion picture camera.” Kenney v. Churchill Truck Lines, Inc., 6 Ill.App.3d 983, 286 N.E.2d 619, 624 (4th Dist. 1972).
Moreover, as we have said, no doctor testified that there was some required terminology in this setting. Telling the patient they had spots that needed to be treated or removed sufficed. (Dr. Ross Tr. 566-67; Dr. Goldberg Tr. 894-95; Dr. Memar Tr. 1022). It was consistent not only with the standard of care, but with the consideration of not unduly panicking patients with the word, “cancer,” or alternatively, using words meaningless to laymen like “actinic keratosis.” (Goldberg Tr. 894-95; Dr. Memar Tr. 1023).
Thus, the patients’ dubious memories about what they were told years earlier was doubly irrelevant and insufficient to sustain the government’s burden to prove beyond a reasonable doubt that each did not have actinic keratosis.
Equally deficient was the belief of some patients that they did not, in fact, have actinic keratosis given their obvious incompetence as laymen to make that self-diagnosis–a point recognized by the government’s own expert, Dr. Ross. (Dr. Ross Tr. 592). See Autotech Technologies Limited Partnership. v. AutomationDirect.com, Inc., 237 FRD 405, 412 (N.D.Ill. 2006)(“an unsupported conclusion by a testimonially incompetent witness [is] entitled to no weight.”). Illustrative is Ms. Gordon, infra, who despite priding herself on her dermatological awareness, knew nothing of actinic keratosis’ symptoms. (Gordon Tr. 754-58). So too was Mr. Robinson, who despite having read a “fair amount” about some dermatological conditions had no idea if his objective symptoms “compute[d] to…actinic keratosis.” (M. Robinson Tr. 342, 344, 351).
The lay patients’ diagnostic incompetence is especially so given the nature of actinic keratosis, which mimics other conditions such that dermatologists themselves can disagree on the diagnosis, as all of the doctors acknowledged. (Dr. Robinson Tr. 65-66; Goldberg Tr. 872-73; Dr. Ross Tr. 592-93; Dr. Memar Tr. 1017).
Finally, and most importantly, review of each patient’s objective physical symptoms precluded a rational jury from concluding beyond a reasonable doubt that they did not have AK. And in the parlance of Rule 33, these uncontroverted objective symptoms rendered the verdict against the manifest weight of the evidence.
Ms. Kontos not only had acne, but additionally “red, scaly bumps” “all over” (Kontos Tr. 698, 711) that “itched” (id. at 711) and that were “different” from and not acne. (Kontos Tr. 709). As Dr. Ross testified for the government, this was the classic presentation of actinic keratosis. (Dr. Ross Tr. 514). Dr. Memar prescribed a series of IPL treatments to avoid this “sun damage” (which actinic keratosis is) turning into cancer. (Kontos Tr. 699-700, 711). The IPL’s worked, the AK’s disappeared, and Ms. Kontos stopped getting the IPL treatments. (Kontos Tr. 705-708). When the AK’s recurred, she got more IPL’s with the same successful results. (Kontos Tr. 711). She described Dr. Memar as a “fantastic doctor” who “absolutely” “did everything on the up and up.” (Kontos Tr. 711). There was no contrary testimony regarding Ms. Kontos, and no rational jury could have found Dr. Memar guilty beyond a reasonable doubt as to her (Counts 4 and 12). Indeed, where was any evidence that she did not have actinic keratosis, let alone beyond a reasonable doubt?
Kellie Siegel went to Dr. Memar with serious concerns about a growth on her face that another dermatologist had told her was benign. Dr. Memar took a biopsy, which revealed it to be skin cancer. (Siegel Tr. 471-72). After surgically removing the skin cancer, Dr. Memar focused on the surrounding area and saw lesions that shouldn’t be there for which he ordered IPL treatments. (Siegel Tr. 475, 502). He told Ms. Siegel that left untreated, the lesions could turn into squamous cell carcinoma. (Siegel Tr. 488). While it was five years earlier, Ms. Siegel recalled there having been a discussion about a “scaly plaque.” (Siegel Tr. 493-94). Ms. Siegel believed that Dr. Memar had saved her face, if not her life, and that he had done nothing wrong in any of this, no matter what the government had told her. (Siegel Tr. 498-99).
Again, what evidence demonstrated the absence of actinic keratosis beyond a reasonable doubt? Indeed, when the lesions returned in 2014, Ms. Siegel was treated with Solareez gel (Siegel Tr. 501), an indisputable treatment for AK. (Tr. 981, 985, 993, 1001, 1024, 1051). Dr. Memar’s non-treatment of AK’s in the two-year interim, for which he would have profited, supported his innocence, just as did his refusal to prescribe Restylane and Botox for her, on which he likewise would have profited. (Siegel Tr. 502). Accordingly, no rational juror could have convicted Dr. Memar under Counts 7 and 15, and the verdict was against the manifest weight of the evidence.
Ms. Combs stressed that “it takes a lot to get [her] to go to the doctor,” and thus she insisted that she received IPL treatments for medical, not cosmetic purposes. (Combs Tr. 400-401). She had scattered dark spots (i.e. pigmented AK lesions) on her face (Combs Tr. 402). She was worried about a significant sunburn she sustained on vacation and had a history of sun damage and sun exposure naturally and through tanning salons that made her a prime candidate for actinic keratosis. (Combs Tr. 401-402). Thus, Dr. Memar gave her IPL for her “sun damage”–which actinic keratosis is, (Dr. Robinson Tr. 67)–before it “turned into something worse.” (Combs Tr. 399, 401). Following this treatment, the spots fell off. (Combs Tr. 394). Again, there was no evidence that the spots that had so concerned Ms. Combs were not actinic keratosis, let alone beyond a reasonable doubt. The convictions under Counts 1 and 9 are unsustainable.
The government’s chief evidence that Ms. McMullen did not have AK in March, 2009 was (1) photographs of her with make-up on (McMullen Tr. 269-71, 277-78); (2) her current inability to “remember one way or the other” being told a decade earlier that she had “AK” or “actinic keratosis” (McMullen Tr. 271-72, 280), (3) and her inability to remember if she had scaly plaques back then–a memory that could never have existed anyway since she didn’t know what either actinic keratosis or scaly plaques are. (McMullen Tr. 279, 281). In fact, she did not remember Dr. Memar himself and thus could not point him out in court. (McMullen Tr. 263).
Leaving aside technical medical labels, Ms. McMullen had, by her own description, redness, scarring , and sun spots, all of which Dr. Memar told her had to be addressed (McMullen Tr. 265, 278, 280). These were, of course, classic AK symptoms, no matter her lay view that they raised only cosmetic concerns. Dr. Memar ordered IPL for her, it improved her condition dramatically, for which she thereafter received complements. (McMullen Tr. 281). She thought Dr. Memar was a good doctor (McMullen Tr. 281). And she would have trusted him to get IPLs back in 2005 when she started with him, long before 2009 when he first ordered them. He had thus refrained from giving her needless treatment for four years from which he would have profited–a forbearance starkly at odds with the charged fraud. (McMullen Tr. 281-82).
Given Ms. McMullen’s testimony, the convictions on Counts 2 and 10 cannot stand.
Mr. Robinson believed he had permanent Rosacea. (M Robinson Tr. 342). Dr. Memar diagnosed him with both Rosacea and actinic keratosis, which Dr. Goldberg testified without contradiction can mimic each other (Goldberg Tr. 872), and which commonly co-exist. (Dr. Robinson Tr. 65-66; Dr. Ross Tr. 593; Dr. Memar Tr. 1087). Mr. Robinson also said that Dr. Memar may have mentioned “AK”–it “sounds familiar.” (M. Robinson Tr. 349). Again, putting to one side labels used seven years ago, Mr. Robinson said he had red, scaly, rough, bumpy nodules and broken capillaries, and that it had been that way permanently. (M. Robinson Tr. 343, 350-51). Thus, Robinson conceded that these symptoms, which he believed as a layman to be Rosacea, may in fact have computed to actinic keratosis to a professional. (M. Robinson Tr. 350-51). These were the classic symptoms of AK, which improved “quite a bit” when treated with IPL by Dr. Memar. (M. Robinson Tr. 351). That is the opposite of proof beyond a reasonable doubt that AK hadn’t existed. Counts 5 and 13 were thus insupportable.
Ms. Laurent had been referred by Dr. Fabros to Dr. Memar for “spots on her face.” (Laurent Tr. 609). She likewise had the prototypical history of AK, namely countless sunburns when she was young in addition to buying tanning bed packages by the dozen. (Laurent Tr. 631). Dr. Memar said the spots could be “precancerous” and recommended IPL treatment (Laurent Tr. 609-610, 631). The treatment worked, and the spots sloughed off. (Laurent Tr. 633-34). Ms. Laurent believed Dr. Memar to be a good doctor and was fond of him. (Laurent Tr. 630).
Ms. Laurent’s only “evidence” against actinic keratosis was her denial that she had “scaly” skin. (Laurent Tr. 621). But scaly in this context only means dry (Goldberg Tr. 905; Ross Tr. 517; Dr. Robinson Tr. 67), which Ms. Laurent’s use of moisturizer established. (Laurent Tr. 631). Moreover, a biopsy of her skin revealed lichenoid keratosis, which proved that she had scaly skin. “Keratosis,” means, as the government stressed, “scaly.” (Govt. Initial Closing at 1188; Dr. Ross Tr. 524).
Dr. Memar’s letter to Dr. Fabros immediately after the referral, conveying his diagnosis of actinic keratosis and intended IPL treatment further supported Dr. Memar and cut against the government’s version. (Laurent Tr. 631; Gov. Exh. 61 at p.125). But Ms. Laurent’s scaly spots and history of sun damage alone, to say nothing of Dr. Memar telling her they were “precancerous,” precluded rational conviction on Counts 6 and 14, because no evidence supported it and the manifest weight of the evidence was against it.
Ms. Jaroch remembered virtually nothing Dr. Memar told her 10 years ago, although he may have mentioned “AK.” (Jaroch Tr. 38, 41-42). Like Ms. McMullen, Ms. Jaroch was unable to identify Dr. Memar in court. (Jaroch Tr. 34). Although she denied having scaly (i.e. dry) skin, she moisturized. (Jaroch Tr. 36, 45-46). And Dr. Robinson’s chart of November 7, 2012 noted Ms. Jaroch’s “perorial dermatitis,” (Jaroch Tr. 46, Dr. Robinson Tr. 69), which Dr. Robinson explained meant “a facial rash that is most often red and scaly.” (Robinson Tr. 69-70). Dr. Robinson’s records further revealed that she had had “redness for years” (Dr. Robinson Tr. 68-69)–the other component of AK’s most common presentation. Following Dr. Memar’s IPL treatments, Ms. Jaroch’s dark spots sloughed off. (Jaroch Tr. 52-53; Robinson chart of 11/13/08).
In short, Ms. Jaroch had all of the symptoms of AK and may well have been told she had it 10 years ago by Dr. Memar. Counterpoised against this hallmark evidence of actinic keratosis was nothing. Indeed, whatever “illicit” profit Dr. Memar made on the 10 or so IPL treatments was nullified by the steep Botox discounts he gave her–a wash that wholly defeated the purpose of any alleged crime. (Jaroch Tr. 50-51). See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 596-97 (1986)(“Lack of motive bears on the range of permissible conclusions that might be drawn from ambiguous evidence”); United States v. Pecore, 664 F.3d 1125, 1133-34 and n.5 (7th Cir.2011)(while “motive is not an element for an FCA claim[,]…defendants appear to only highlight the lack of [economic] motive as evidence that defendants did not knowingly submit a false statement.”).
Counts 3 and 11 must be vacated.
Ms. Gordon’s AK symptoms were beyond debate. She went to Dr. Memar to get rid of
redness and brown spots, the latter being attributable to sun exposure. (Gordon Tr. 714, 751-52, 758). Indeed, Ms. Gordon had a “history of blistering sunburns and tanning,” making her a “classic candidate for actinic keratosis.” (Dr. Robinson Tr. 66-67; Gordon Tr. 757). While she initially denied having lesions, she received three bills from Dr. Memar’s office explicitly referring to “destruction of lesions.” (Gordon Tr. 764-65). And Dr. Robinson’s records reflected that she had lesions associated with pink bumps. (Govt. Exh. 83, Robinson 12/2/2010 for Gordon, Robinson Tr. 68; Gordon Tr. 760).
Ms. Gordon also denied having scaly (i.e. dry) skin (Gordon Tr. 755-56). But she too used moisturizer (Gordon Tr. 762-63) and had been diagnosed by Dr. Robinson with “xerosis of the face,” which Dr. Robinson explained was “dry, scaly” skin.” (Govt. Exh. 83, Robinson 12/17/2012 chart for Gordon, Robinson Tr. 67). As the government stressed with another witness, lay patients “can’t necessarily tell the difference between what a scaly spot and what a smooth spot is… so you trust your doctor to make those determinations for you.” (M. Daley Tr. 849).
Ms. Gordon’s undeniable actinic keratosis was not diminished by her belief that she had great, young-looking skin. Dr. Robinson had also diagnosed her with “Rhitidosis facialis”–a “wrinkling of skin disproportionate to age.” (Govt. Exh. 83, Robinson 4/20/09 chart for Gordon). Nor was this undeniable condition undercut by Ms. Gordon’s inability to recall being told eight years earlier that she had it given (1) her admission that she could not recall everything Dr. Memar had told her (Gordon Tr. 761) and (2) her similar inability to remember the conditions Dr. Robinson told her she had, including facial xerosis, (Gordon Tr. 755-56), Rhitidosis facialis (Gordon Tr.765-66), and “lesions” (Gordon Tr. 759-760)–despite her boast that “when it’s got to do with me and it’s got to do with a health condition that I have, I remember it.” (Gordon Tr. 736).
What little was left of Ms. Gordon’s credibility–generally and as to her memory– disappeared with her testimony that “after I saw Dr. Robinson, I decided I was no longer going to see Dr. Memar for any of my more important dermatological needs.” (Gordon Tr. 736). Conveniently forgotten was that after fourteen months of treatment at Dr. Robinson’s office, Ms. Gordon went to Dr. Memar when faced with the prospect of melanoma. (Gordon Tr. 752-54).
Finally, Tina Guttierez, the government’s own witness who administered Ms. Gordon’s IPL treatments, testified without contradiction that Ms. Gordon’s AK’s were so pervasive that she thought they were actual had actual skin cancer. (Guttierez Tr. 454-55).
Counts 8 and 16 cannot stand.
Drs. Neha Robinson and E. Victor Ross
The patients’ inability to support the government’s case–indeed they refuted it–was not overcome by the doctors called by the government.
Dr. E. Victor Ross
Dr. Ross never viewed a single patient file and thus offered no testimony whatsoever on the critical issue of whether any of them had actinic keratosis. (Ross Tr. 465). His testimony was a generalized critique of the treatment of actinic keratosis with IPL alone (versus the more traditional IPL plus Levulan). He conceded, however, that there is no standard of care that prohibits treatment of actinic keratosis with IPL alone, just as he admitted that it involved low side-effects (downtime and discomfort) (Dr. Ross Tr. 568-69, 578-79)–especially compared with the significant downtime, discomfort, and expense when Levulan is added to the IPL treatments. (Dr. Ross Tr. 594-95).
Moreover, Dr. Ross’ purported critique of IPL alone put him at odds not only with the rest of the medical world, as recognized by six international journals (Ross Tr. 571- 588, Goldberg Tr. 881-86), it was belied by his own commentary following the first of those articles in which he stressed “the second and just as remarkable finding is the excellent improvement in AKs without ALA”–praise he tried to minimize at trial as having been written “tongue in cheek.” (Dr. Ross Tr. 574, 579). Dr. Ross conceded, however, that practitioners could view these articles as endorsing the effectiveness of IPL alone in the treatment of AK, (Dr. Ross Tr. 584, 586), just as he conceded that a doctor who administered IPL alone for AK in the good faith belief of its effectiveness has not done “anything wrong.” (Dr. Ross Tr. 590).
Accordingly, Dr. Ross’ subjective opinion of the efficacy of IPL could not satisfy the government’s burden of demonstrating that Dr. Memar had falsely diagnosed actinic keratosis. As one district court recently put the matter in granting a Rule 29 motion in the context of health care fraud:
First, the scientific evidence and expert opinion testimony presented by the Government does not prove falsity. Instead, it proves that when it comes to angiography, there is more than meets the eye. Second, the circumstantial evidence presented was not substantial enough to prove falsity. Even when the Court reviews all of the evidence in the light most favorable to the Government, the evidence is insufficient to prove falsity beyond a reasonable doubt.
As explained above, a false statement must be a factual assertion that is subject to proof or disproof. Waechter, 771 F.2d at 978. Dr. Paulus argues that there is insufficient evidence “to prove that [he] ‘knowingly and willfully’ made an objectively false statement that is subject to confirmation or contradiction.” (Doc. # 220-1 at 14). In response, the Government claims that it presented direct evidence of falsity through angiograms and expert opinion testimony that “the Defendant inserted stents into patients whose blockages were below [the 70%] standard, and then lied about the amount of blockage in the patient’s records.” (Doc. # 245 at 5). The Government also asserts that the falsity of those records is supported by circumstantial evidence of profits, testimony of co-workers who believed he was performing unnecessary procedures, testimony of patients, the volume of procedures, and the fact that the number of procedures went down after the investigation began. Id. at 8. This disagreement between the parties can be distilled down to one issue—whether the degree of stenosis is an objective fact, which can be false, or a subjective opinion, which is not subject to proof or disproof.
Merriam-Webster defines a fact as “a piece of information presented as having objective reality.” On the other hand, an opinion is defined as “a view, judgment, or appraisal formed in the mind about a particular matter” or “a formal expression of judgment or advice by an expert.” While these concepts are elementary, they are essential when examining falsity in a criminal case such as this one, where the defendant claims he was exercising his medical judgment. The importance of the distinction between fact and opinion is highlighted by the legislative history of § 1347. The health care fraud statute is “not intended to penalize a person who exercises a health care treatment choice or makes a medical or health care judgment in good faith simply because there is a difference of opinion regarding the form of diagnosis or treatment.” H.R. Rep. No. 104-736, at 258 (August 21, 1996), reprinted in 1996 U.S.C.C.A.N. 1990, 2071. Therefore, the statutes targeting health care fraud do not criminalize subjective medical opinions where there is room for disagreement between doctors. Instead, criminal liability only attaches to Dr. Paulus if the Government proved, beyond a reasonable doubt, that he knowingly and willfully exaggerated the extent of his patients’ stenosis in their medical records, for the purpose of defrauding a health care benefit program.
United States v. Paulus, 2017 WL 908409 *6 (E.D. Ky. Mar. 7, 2017)(Emphasis added).
There can be no doubt as to Dr. Memar’s belief in the efficacy of IPL without Levulan for treating actinic keratosis given his use of that treatment for the eight biopsy-confirmed AK patients called by the defense. See infra. Biopsies are the “gold standard” of accurately diagnosing AK. (Dr. Ross Tr. 598).
Nor was the government’s case supported by Dr. Robinson, who was clear that there is no single treatment for AK and certainly no standard of care that precludes treatment of AK with IPL alone. (Dr. Robinson Tr. 70-72; Dr. Ross Tr. 568).
Dr. Robinson also rejected the significance of the indictment patients’ inability to remember whether they were told they had AK years ago, since even her current patients commonly do not recall what she has told them (Robinson Tr. 61), just as Dr. Goldberg testified. (Goldberg Tr. 895).
Like Dr. Ross, Dr. Robinson opined on no patient files, other than to say that her records for Jill Jaroch and Anna Gordon did not reflect actinic keratosis (Dr. Robinson Tr. 59-60), in contrast to Dr. Memar’s charts, which showed that condition for them during overlapping periods of time. Dr. Robinson, however, conclusively discounted the significance of her charts’ silence as to AK and did so in several ways.
First, Dr. Robinson conceded that her failure to note a particular condition in a patient’s file did not mean that it did not exist at that time. Indeed, she conceded that these two patients indisputably had several other skin conditions that she had neglected to note. (Melasma for Ms. Jaroch, acne and a chin bum for Ms. Gordon, Dr. Robinson Tr. 61-64).
Relatedly, she said that she would not have noted actinic keratosis lesions if she was not looking for them or was instead focusing on other skin conditions, (Dr. Robinson Tr. 63), just as Dr. Ross stressed that not seeing AK’s “happens a lot” when the dermatologist is focused on other skin conditions. (Ross Tr. 591-92).
Dr. Robinson further explained that actinic keratosis lesions come and go, either on their own or in response to treatment, and as to the latter she wouldn’t have expected to see actinic keratosis lesions after they had been treated by Dr. Memar. (Dr. Robinson Tr. 65).
Indeed, if there was something untenable about the timing of Dr. Memar’s diagnoses of AK for these patients when juxtaposed against Dr. Robinson’s timeline of treating them, Dr. Robinson herself would have been shown the government’s timeline, as would have Dr. Ross. Neither was.
Perhaps most importantly, Dr. Robinson conceded that her charts for these patients included all of the symptoms of actinic keratosis. She testified that Ms. Jaroch had gotten IPL from Dr. Memar for brown spots and Rosacea (Govt. Exh. 33, Dr. Robinson 7/26/07 chart for Jaroch), and that Ms. Jaroch had had “redness for years” on her face (Govt Exh. 33, Dr. Robinson 11/13/08 chart for Jaroch, Dr. Robinson Tr. 68-69). Ms. Jaroch also had Perorial Dermatitis in facial area (Govt Exh. 33, Robinson 11/7/12 chart for Jaroch, Dr. Robinson Tr. 69), which Dr. Robinson explained was “a facial rash that is most often red and scaly.” (Dr. Robinson Tr. 69-70). Because Ms. Jaroch indisputably had red, scaly lesions–the textbook presentation of AK–no rational jury could find beyond a reasonable doubt that she did not.
The same was true of Ms. Gordon according to Dr. Robinson’s records. Dr. Robinson would never have said that Ms. Gordon never had AK, especially since Ms. Gordon had a “history of blistering sunburns”–making her a classic candidate for AK. (Govt. Exh. 83, Horne/Robinson records 4/20/09 chart for Gordon, Dr. Robinson Tr. 66-67). Gordon also had “xerosis of the face,” which Dr. Robinson explained meant “dry scaly” skin. (Govt Exh. 83, Robinson 12/17/12 chart for Gordon, Dr. Robinson Tr. 67), Gordon also had “lesions” associated with pink bumps (Dr. Robinson Tr. 68), as well as the redness for years for which she saw Dr. Memar. See supra. As to the age of these patients, Dr. Robinson, like Dr. Goldberg, said that more and more patients in their 30’s are being treated for AK. (Dr. Robinson Tr. 70; Goldberg Tr. 874).
Accordingly, Dr. Robinson’s testimony actually buttressed Dr. Memar’s diagnosis of AK, and most assuredly did not support the absence of AK beyond a reasonable doubt, especially since all of the doctors admitted that dermatologists can reach differing diagnoses concerning AK. (Goldberg Tr. 873; Dr. Ross Tr. 592-93; Dr. Robinson Tr. 65-66). Here, there was no dissenting voice.
In sum, each of the patients presented the classic symptoms of actinic keratosis by their own admission, two of which were corroborated by the charts of another doctor. No doctor, including the government’s primary expert, Dr. Ross, even opined that these patients did not have actinic keratosis. And each patient was treated with an internationally recognized modality for that condition. See supra. So where was the proof that would have allowed a jury to conclude the opposite beyond a reasonable doubt? There was none, whether it be viewed under either Rule 29 or 33 standards.
The extended nature of the patients’ treatment does not fill the evidentiary void for several reasons. First, the evidence that actinic keratosis is never really cured, but instead comes and goes, was uncontroverted. (Dr. Ross Tr. 597; Dr. Robinson Tr. 65; Dr. Goldberg Tr. 887, 889-90, 892; Guttierez Tr. 451; Dr. Memar Tr. 1055). To be sure, the biopsy-confirmed actinic keratosis patients, whose treatments continued year after year further confirmed this. See infra. This was consistent with the testimony of Drs. Goldberg, Robinson, Memar, and even Ross. Dr. Goldberg had AK patients whose treatments spanned 30 years. (Goldberg Tr. 892).
In sum, given the undisputed evidence of the (1) world-wide recognition that IPL alone is effective for treating AK; (2) Dr. Memar’s use of it for biopsy-confirmed AK patients; (3) the chronic nature of AK; and (4) actual physical AK symptoms of the patients in the indictment, no rational jury could have found guilt beyond a reasonable doubt, and the manifest weight of the evidence was against the verdict.
Even if there was something suspicious about any of this–and there was not–that would not be enough to sustain the convictions under Rule 29. See United States v. Jones, 713 F.3d 336, 352 (7th Cir. 2013)(mere “suspicious” conduct and inferences based upon speculation insufficient to support conviction under Rule 29).
The IPL/AK Patients of Dr. Memar Called by the Defense
The eight patients called by the defense, who included two retired police officers, business executives, an engineer, and a priest, placed beyond doubt Dr. Memar’s faith in IPL and the chronic nature of that condition. Their actinic keratosis for which each received IPL year after year was biopsy-confirmed and hence indisputable. Ms. Kelly’s condition was further confirmed by her also having had actual skin cancer in her 30’s. And Ms. Daley and Ms. Cerda were first diagnosed with actinic keratosis at ages akin to those of the government’s witnesses. (See Exhibit 1A, Kelly Tr. 778-79 and medical records; Exhibit 1B, Evans Tr. 822-23, 928-29 and medical records; Exhibit 1C, Wolf Tr. 812, 815and medical records; Exhibit 1D, Daley Tr. 840-44 and medical records; Exhibit 1E, Cerda Tr. 995-99 and medical records; Exhibit 1F, Schwendau Tr. 953-58 and medical records; Exhibit 1G, Nyberg Tr. 983-90 and medical records, and Exhibit 1H, Walsh Tr. 971-74 and medical records; Memar Tr. 1030-35,1040-44, 1047-65).
Indeed, patients Walsh, Schwendau, Kelly, Evans, and Nyberg, were repeatedly treated for years with modalities other than IPL, none of which cured their actinic keratosis, thereby confirming its chronic, indeed incurable nature attributed to it by the doctors who testified. Id.
In light of these patients’ undisputed testimony, and that of the government’s witnesses discussed above, no rational jury could find Dr. Memar guilty beyond a reasonable doubt, and the verdict was against the manifest weight of the evidence.
Indeed, apart from these 16 patients, Dr. Memar’s office was decidedly modest in its diagnosis and treatment of actinic keratosis–the opposite of what would be expected if there was a scheme to falsely diagnose and treat it. The evidence was undisputed that from 2007 – 2013 (the time period of the indictment), Dr. Memar had approximately 600 actinic keratosis patients and approximately 1,800 actual skin cancer patients. (Dr. Memar Tr. 1088, 1091). Equally undisputed was Dr. Goldberg’s testimony that you would expect between 10 and 30 times as many AK patients as actual skin cancer patients, and hence that Dr. Memar had a very low number of AK patients. Indeed, Dr. Goldberg would have expected there to have been 20,000 AK patients as opposed to his mere 600. (Dr. Goldberg Tr. 894). (Dr. Memar has as many as 30,000 patients at a time. (Dr. Memar Tr. 1096)).
The verdict should be vacated, and judgment entered in Dr. Memar’s favor under Rule 29. At a minimum, he is entitled to a new trial under Rule 33.
The Government’s Closing Argument Deprived Dr. Memar of a Fair Trial
The government sought to shore up its want of proof with the false claim–stressed repeatedly–that Dr. Memar had confessed to Blue Cross Blue Shield in January, 2013 that his use of IPL for patients was cosmetic. Thus, it argued:
The way that he responded when he talked to Blue Cross shows you that he committed fraud. They ask him why he uses IPL, and he tells them the truth. He tells them, photo rejuvenation.
* * *
Most importantly, though, ladies and gentlemen, one of the things to consider here is that the defendant told Blue Cross Blue Shield that the IPL treatments in connection with Kellie Siegel, these were for photorejuvenation. That’s when he’s confronted in the clinical discussion that you heard about when Blue Cross seized the search and the data and they come talk to him in 2013 and they ask, “What’s going on with Kellie Siegel? Why is she getting IPL treatments?” And the answer he gives is, “She’s getting photorejuvenation.” That’s the truth, ladies and gentlemen. That’s the first time he’s asked about it, and that’s what he tells them. He tells them the truth. It’s a cosmetic process. It’s for photorejuvenation.
* * *
Most importantly, though, how do you know about knowledge and willfulness? You know because he gave differing stories. So where are these differing stories? The first story he tells is Blue Cross Blue Shield. And you heard about that, that in January of 2013, he has this clinical discussion with Blue Cross Blue Shield. And it’s at that time that he tells them the truth. He says, “I use the IPL for photorejuvenation.”
(Govt. Initial Closing at 1170, 1187, 1203).
This was an unpardonable fabrication. Had Dr. Memar confessed to giving IPL for “cosmetic,” “photorejuvenation” rather than AK, James Krupkowski (the only government witness from that meeting) would have noted it, especially given his background as a former FBI agent, and testified to it. (Krupkowski Tr. 353). He didn’t. To the contrary, Mr. Krupkowski testified that Dr. Memar insisted that his medical records, which had reflected actinic keratosis, were “not wrong,” and thus he had “disagreed” with BCBS’ accusation in that meeting that he had been giving cosmetic treatment, rather than treating for patients for AK. (Krupkowski Tr. 365-67). Here is Mr. Krupkowski’s testimony, adduced by the government:
- What, if anything, did Dr. Barnes say to Dr. Memar about the peer reviewer’s opinions as to whether the IPL treatments appeared to be cosmetic or something called rejuvenation?
- The peer reviewer found, it was his opinion that it was done for photorejuvenation, that it was meant to fix cosmetic blemishes on the skin as opposed to clinical problems where he would — you would need some medically necessary treatment.
- Now, after Dr. Barnes told Dr. Memar about the peer reviewer’s findings, what, if anything, did Dr. Memar say in response?
- Well, Dr. Memar disagreed with the peer reviewer’s findings. He said that, you know, his records could have been better, he could have done diagrams, but that doesn’t mean
that he didn’t do the services that he had billed. And he questioned the bias of the peer reviewer because Blue Cross was paying for the peer review and had requested the peer review.
(Krupkowski Tr. 365-67).
Dr. Memar was likewise adamant that he had made no such admission at the Blue Cross meeting:
- And during the meeting with [Blue Cross Blue Shield], did you deny that you did anything wrong?
- Absolutely, because I didn’t do anything wrong. …. I was shocked that someone thought this is cosmetic.
(Dr. Memar Tr. 1092).
Q: [By Mr. Lee] When you were confronted by Blue Cross Blue Shield by Dr. Barnes about your use of IPL —
- — you admitted the truth, which was that you had been doing it for photorejuvenation?
- I never… said photorejuvenation. That is a, I hate to use the word, fib. That is not correct. I was not doing it for photorejuvenation.
(Dr. Memar Tr. 1112-13).
[By Mr. Lee]. Photorejuvenation is what you admitted doing at the clinical discussion with Blue Cross Blue Shield, correct?
- Never. … That is wrong. You are wrong, sir.
(Dr. Memar Tr. 1117].
To be sure, had Dr. Memar confessed, Blue Cross would have issued an immediate demand refund letter in response to the alleged confession to the assemblage. None was. (Srinivasan Tr. 97-98; Krupkowski Tr. 368). One of the reasons no refund letter was sent to Dr. Memar was, as Mr. Krupkowski explained, “most often, doctors don’t say, ‘Okay. I was wrong. I’ll pay you all the money back.'”–a presumption and forbearance BCBS would not have followed if Dr. Memar had just confessed. (Krupkowski Tr. 368).
Indeed, the government’s examination of Mr. Krupkowski and its comments in final argument stressed that BCBS had merely asked Dr. Memar to thereafter provide additional support for his position that the IPL treatments were medical rather than cosmetic–a request it never would have made had he just confessed that they were cosmetic. (Krupkowski Tr. 369; Govt. Rebuttal Closing at Tr. 1270).
We thus pointed out the blatant inaccuracy of the government’s confession argument in the defense closing argument. (Tr. 1206-07). The government nonetheless repeated this false claim in its rebuttal argument:
Second, you know that the treatments were not destruction, meant to destroy precancerous actinic keratosis lesions because the defendant didn’t tell them that. He told them it would help redness. It would help with the rosacea. It would help — it would do photorejuvenation. It would be preventive as one of the defendant’s own witnesses told you, photorejuvenation as form after form said and as he himself admitted to Blue Cross Blue Shield when confronted and caught by surprise.
(Govt. Rebuttal Tr. 1269).
When argument departs from the facts in evidence, even without objection, the error may be so prejudicial as to be reversible. United States v. Fearns, 501 F.2d 486, 488–89 (7th Cir.1974). See also United States v. Davis, 532 F.2d 22, 27–28 (7th Cir.1976)… Sometimes in the heat of argument that line between proper and improper argument may be unintentionally crossed. In this case it was prejudicially crossed.
United States v. Degeratto, 876 F.2d 576, 587 (7th Cir. 1989). See also Jordan v. Hepp, 831 F.32d 837, 848 (7th Cir. 2016)(“Due process therefore forbids a prosecutor to urge a jury to rely on evidence that is not in the record, whether that evidence is from newspaper accounts, the Internet, or the prosecutor’s own mouth. It requires the jury to be left alone to do its own job, evaluating the evidence the trial judge admitted, and coming to its own independent conclusion (as opposed to one dictated by the prosecutor.)”).
And this was no ordinary misstatement. “A confession is like no other evidence. Indeed, the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him…. [T]he admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so.” Arizona v. Fulminante, 499 U.S. 279, 296 (1991). United States v. Ventura-Cruel, 356 F.3d 55, 64 (1st Cir. 2003)(“confessions are by nature highly probative and likely to be at the center of a jury’s attention.”); United States v. Leon-Delfis, 203 F.3d 103, 112 (1st Cir. 2000)(same).
The “profound impact” of a purported confession “is especially so where the government emphasizes the confession in its closing argument because these are the last words spoken to the jury by the trial attorneys.” Ventura-Cruel, 356 F.3d at 64; United States v. Manning, 23 F.3d 570 (1st Cir. 1994)(same, reversing conviction based upon improper government closing argument); United States v. Sanchez-Soto, 617 Fed.Appx. 695, 698 (9th Cir. 2015)(reversing conviction where prosecutor “placed heavy weight” on misstated evidence in closing argument); United States v. Watson, 171 F.3d 695, 702 (D.C. Cir. 1999)(reversing conviction where prosecutor misstated evidence in closing and repeated it in rebuttal argument). That is precisely what occurred here, where the government stressed the non-existent “confession” repeatedly in both its opening and rebuttal closing argument. See supra.
Given the insurmountable prejudice, courts have unhesitatingly reversed convictions where juries have been falsely told that the defendant has confessed. See e.g. United States v. Robledo-Vela, 2002 WL 1941166, 45 Fed Appx 567, 568-69 (9th Cir. May 2, 2002)(reversing conviction based upon the prosecutor’s inaccurate statement in closing argument that defendant had “confessed” to the crime); Hays v. Farwell, 482 F.Supp.2d 1180, 1193 (D. Nev. 2007)(vacating conviction where state’s witness falsely testified defendant had confessed). Indeed, while the government’s false argument was lethal in any context, it was especially so in the context of a “short trial” where, as here, it “was a close case that prompted approximately eight hours of jury deliberations”). Compare United States v. Haynes, 729 F.3d 178, 197 (2d Cir. 2013).
Finally, the government cannot brush its misstatements aside as harmless missteps. As it repeatedly told the jury, Dr. Memar’s purported confession was its “most important” evidence. See supra; See United States v. Engelman, 701 F.3d 874, 878 (8th Cir. 2012) (reversing based upon error concerning what “the prosecutor characterized…as ‘the most important evidence that has been presented’ and ‘the most powerful evidence about the defendant’s guilt in this case.’”); United States v. Rodriguez, 260 F.3d 416, 423 (5th Cir. 2001)(reversal required where “the prosecutor argued to the jury that [the improperly argued evidence] was ‘the most important evidence in this case concerning intent.'”).
Accordingly, the false argument that Dr. Memar had confessed warrants a new trial and further serves to undercut the reliability of the jury’s verdict.
For the foregoing reasons, Dr. Memar requests that judgment be entered his favor notwithstanding the verdict or, alternatively, that he be granted a new trial.
Staes & Scallan, P.C.
53 W. Jackson Blvd.
Chicago, Illinois 60604
CERTIFICATE OF SERVICE
I, Andrew Staes, hereby certify that on June , 2017, I caused a copy of the foregoing Motion to be served upon Assistant United States Stephen Lee, 219 S. Dearborn Street, Suite 500, Chicago, IL 60604 electronically through the court’s CM/ECF system.
 18 U.S.C. §§1347 and 1035(a)(2).
 The Court took our request to strike the Gecas and Kline testimony on this basis under advisement. (Tr. 337-38).
 Both Kline and Gecas likewise made clear that the “copying” of the patients’ AK symptoms from chart to chart was innocuous–it was merely to record the diagnosis pursuant to which the series of IPL treatments was being given. (Kline Tr. 252-53; Gecas Tr. 327-28, 333). Ms. Guttierez, also called by the government, confirmed this. (Guttierez Tr. 453).
 (Dr. Ross Tr. 525; Dr. Memar Tr. 1018).
 Mr. Robinson’s testimony that his skin was “dry,” not “scaly,” (M. Robinson Tr. 35) merely reflected the common unawareness among lay patients that “scaly” in this context means dry. (Dr. Ross Tr. 517; Dr. Goldberg Tr. 517; Dr. Robinson Tr. 67).
 Thus, as Dr. Ross explained, scale can be “masked by moisturizer.” (Dr. Ross Tr. 517).
 Dr. Robinson did not support Gordon’s claim that when she told Dr. Robinson that insurance was covering the IPL treatment, Dr. Robinson “raised an eyebrow.” (Gordon Tr. 743). Moreover, that testimony was objected to on hearsay grounds, id, and should not be considered in support of the verdict. See FRE 801(a)(“‘statement’ means a person’s oral assertion, written assertion, or nonverbal conduct“); Carroll v. Yates, 2013 WL 100237 at *15 n.12 (Jan. 7, 2013)(“Dr. Sofinski’s purported statements, which include her body language and facial expressions, are hearsay and they are inadmissible.”).
 As we have said, credibility is properly considered under Rule 33. See supra.
 Dr. Ross admitted that the 17004 CPT code’s reference to “destruction” was an unduly literal view of things and that “treatment” is a more apt term given the tendency of AK to come and go and hence the need for “tune up” treatments in the nature of “mowing the grass.” (Dr. Ross Tr. 596-97). Dr. Ross likewise recognized the validity of treating AK with a series of treatments. (Dr. Ross Tr. 596).
 These medical records were introduced at trial as part of Defense Exhibits 1-4 and 9-12. While we have attached them as exhibits to the copies of this memorandum provided to the Court and the government, we have not attached them to the version of this document filed with the Clerk’s office given privacy concerns relating to medical records. If, however, the Court wishes us to file them under seal, we will do so.