Prakash Rule29

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Ronald Richards, Esq. Bar#176246

Law Offices of Ronald Richards & Associates, A.P.C.
P.O. Box 11480
Beverly Hills, CA 90213
Telephone (310) 556-1001
Fax
(310) 277-3325
Email: ron@ronaldrichards.com
Attorneys for Ramanathan Prakash
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
SACRAMENTO DIVISION
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CASE# CR Nos. 08-427-MCE
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UNITED STATES OF AMERICA
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Plaintiff
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v.
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DEFENDANT RAMANATHAN
PRAKASHS MOTION FOR A NEW
TRIAL PURSUANT TO RULE 29
AND/OR RULE 33
Date: January 26, 2012
Time: 9:00am
RAMANATHAN PRAKASH;
ALEXANDER POPOV, et al.
Defendant
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The defendant, by and through his attorneys, Ronald Richards, Esq., of the Law
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Offices of Ronald Richards & Associates, hereby moves for a new trial pursuant to
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Federal Rule of Criminal Procedure 29 and/or 33.
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Dated: December 13, 2011
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Respectfully submitted,
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/s Ronald Richards
__________________________
RONALD RICHARDS, ESQ.
Attorneys for defendant,
RAMANATHAN PRAKASH
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TABLE OF CONTENTS
INTRODUCTION......................................................................................................
I. The Court Committed Error by Refusing The Multiple Conspiracy Instruction....5-11
II. The Summary Charts Showing a 20% Split of the Proceeds Was Misleading, Caught
the Defense by Surprise, and Created Undue Prejudice..............................................11-12
III. The Court Committed Error by Allowing the Testimony Of Dr. Neyhart and Then
Preventing Cross Examination....................................................................................12-32
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TABLE OF AUTHORITIES
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FEDERAL AUTHORITIES
Christophersen v. Allied-Signal Corporation, 939 F.2d 1106, 1112-13 (5th Cir. 1991).17
Clark v. Takata Corp., 192 F.3d 750, 759 n.5 (7th Cir. 1999) ........................................13
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) ............................12
Daubert v. Merrill Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9 Cir. 1995).........13
Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974).................31
Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986)31
General Electric v. Joiner, 522 U.S. 136 (1997)..............................................................12
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In Re Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 745 (3d Cir. 1994) .................14
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In Re Unisys Savings Plan Litigation, 173 F.3d 145, 156-157 (3rd Cir. 1999) ...............16
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Kerringan v. Maxon Industries, 223 F. Supp.2d 626, 637 (E.D.Pa 2002) .......................15
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Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)...............6
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Kumho Tire Company v. Carmichael, 526 U.S. 137 (1998).............................................12
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Rudd v. General Motors, 127 F.Supp.2d 1330, 1336 (MD Ala 2001)..............................14
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Shreve v. Sears, Roebuck & Co, 166 F. Supp.2d 378, 394 (D.Md. 2001) .......................15
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Trumps v Toastmaster, Inc., 969 F. Supp.247, 252 (S.D.N.Y. 1997) ..............................15
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United States v. Anguiano, 873 F.2d 1314, 1317 (9th Cir.1989) .......................................6
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United States v. Awad (9th Cir. 2009) 551 F.3d 930, 938 ...............................................17
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United States v. Beardslee, 197 F.3d 378, 383 (9th Cir. 1999).........................................32
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United States v. Brandon, 17 F.3d 409, 449-50 (1st Cir. 1994) ........................................8
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United States v. Boylan, 898 F.2d 230, 243 (1st Cir.1990).8.............................................8
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United States v. Fuentes-Gariaga, 209 F.3d 1140, 1142 n.3 (9th Cir. 2000)..................18
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United States v. Chen Chiang Liu, 631 F.3d 993, 999-1000 (9th Cir. 2011).....................6
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United States v. Chang, 207 F.3d 1169, 1172 (9th Cir. 2000)..........................................14
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United States v. Dennis, 917 F.2d 1031, 1033 (7th Cir.1990).......................................... 8
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United States v. Dwyer, 843 F.2d 60, 6162 (1st Cir.1988)...............................................8
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United States v. Greer, 939 F.2d 1076, 1088 (5th Cir.1991) .............................................8
United States v. Castaneda-Cantu, 20 F.3d 1325, 1333-34 (5th Cir. 1994).......................8
United States v. Kohring, 637 F.3d 895, 905 (9th Cir. 2011) ..........................................32
United States v. Larson, 495 F.3d 1094, 1102 (9th Cir. 2007) (en banc).........................31
United States v. Lo, 231 F.3d 471, 482 (9th Cir. 2000)...................................................32
United States v. Morales, 108 F.3d 1031, 1035-36 (9th Cir. 1997) (en banc).................17
United States v. Nunnally, 249 F. App'x 776, 780 (11th Cir. 2007)..................................9
United States v. Schoneberg, 396 F.3d 1036, 1103 (9th Cir. 2005)(alterations in original)
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United States v. Stowell, 947 F.2d 1251, 1258 (5th Cir.1991) .........................................8
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Whiting v. Boston Edison Co., 891 F. Supp. 12, 24 (D. Mass. 1995)..............................16
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STATE AUTHORITIES
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Broders v. Heise, 924 S.W.2d 148, 152-153 (Tex. 1996) ...............................................17
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INTRODUCTION
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In Dr. Prakashs case the Government has alleged in the Superseding Indictment
only that Dr. Prakash participated in the alleged conspiracy by working at the
Sacramento clinic only between the dates of March 10, 2006, through March 23, 2007.
(See Superseding Indictment, 4:18-19)1
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The defendant requested numerous jury instructions that were rejected by the
Court. Dr. Prakash filed numerous motions in limine which were all denied.
Dr. Prakash had a six month contract which expired on its own terms. He
was only paid for ten months. His salary was $6,000.00 per month. He had no financial
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participation in the profits or losses of the clinic. He was retained pursuant to a written
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agreement.
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There was not a single witness that had any incriminating conversations with Dr.
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Prakash. The Court should carefully review this motion, as there is a strong potential
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that an innocent man may have been convicted. Dr. Prakash may have been gullible,
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naive, or on medication, but there was not a scintilla of admissible evidence that he
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intended to defraud Medicare or was part of a large conspiracy.
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The Court allowed Dr. Neyhart, a malpractice witness to critique Dr. Prakash
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based upon the examinations of patients who were faking their illnesses as they were
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being paid to go to the clinic. Her testimony was flawed in many respects. In addition,
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the Court sustained 75 government objections and overruled them 5 times during the
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cross examination by defense counsel. All of this warrants a new trial for Dr. Prakash.
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I.
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THE COURT COMMITTED ERROR BY REFUSING
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THE MULTIPLE CONSPIRACY INSTRUCTION
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THE COURT: I'm going to reject the instruction
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because I believe that the evidence that was presented during
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the course of the trial indicates that there was a single
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The defense contended this time period was actually much shorter.
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conspiracy, not multiple. Now granted there were different
locations, Folsom Boulevard, Richmond, and other locations, but
it was one conspiracy.
The evidence does not show this. They may have had
different doctors working at different locations, signing
different things, but it was still one conspiracy. That's what
the evidence shows. So as far as 8.22, Mr. Richards, I am
rejecting that.
(June 29, 2011, page 11)
Dr. Prakash asserts that he was entitled to a multiple conspiracy instruction
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because a reasonable juror could have found two separate conspiracies: (1) Folsom and
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(2) Richmond. A multiple conspiracy jury instruction is appropriate if an indictment
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charges several defendants with one overall conspiracy, but the proof at trial indicates
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that a jury could reasonably conclude that some of the defendants were only involved in
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separate conspiracies unrelated to the overall conspiracy charged in the indictment.
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United States v. Anguiano, 873 F.2d 1314, 1317 (9th Cir.1989) (citing Kotteakos v.
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United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). The purpose of this
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instruction is to minimize any prejudicial variance between the indictment and the
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proof at trial and to protect a defendant from a spillover of guilt from one defendant to
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another. Id. at 131718. A multiple conspiracy instruction is not required when a
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defendant stands trial alone because there is no problem of spillover. Id. at 1318.
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The instruction is not meant for trials of lone defendants who are worried that the jury
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may not agree upon the same set of facts. Id.
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In United States v. Chen Chiang Liu, 631 F.3d 993, 999-1000 (9th Cir. 2011), the
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9th Circuit recently ruled reaffirming this principle in its entirety, but upheld the refusal to
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give the instruction on plain error review due to the defendant failing to object and
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because Liu was the sole defendant at the time the Court gave its instructions. Dr.
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Prakash did object and there were three defendants.
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The evidence showed the following:

Management Services Agreement for $6,000.00 per month
July 7, 2006
$6,000.00
August 1, 2006
$6,150.00
September 2, 2006
$6,000.00
October 1, 2006
$6,000.00
November 1, 2006
$6,000.00
November 27, 2006
$6,000.00
January 12, 2006
$10,000 (transfer)
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January 16, 2007
$6,000.00
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February 2, 2007
$6,000.00
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March 1, 2007
$6,000.00
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Total Payments:
$64,150.00
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Dates of Service: 5-1-06 to 3-23-2007 Exhibit 310 (MSA) and Exhibit 800
10.66 months x $6,000.00=$64,000.00
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Exhibit 802, Southwest Airlines Itinerary, Exhibit 807, check for $6,150.00
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Exhibit 819 showing ticket for 5-1-06 to Sacramento
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The facts easily showed a different conspiracy as to Dr. Prakash. Dr. Prakash and
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Vardges Egiazarian had an independent contractor relationship pursuant to a written
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agreement. There was enough evidence to warrant that they were in a different
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conspiracy from other clinics. There was no cross over between the two clinics as to Dr.
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Prakash. The other doctors did not have a written engagement. Dr. Prakashs bills were
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all submitted through Dr. Popovs medicare submitter number. No evidence was
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introduced that the operator of the Richmond clinic, Migran Petrosyan, was in a
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conspiracy with Vardges Egiazarian as to the Folsom clinic. There could have easily
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been two or three conspiracies if one includes the Carmichael clinic.
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met Dr. Popov or Dr. La Chabrier.

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Dr. Prakash never
Other circuits also follow this rule. A trial court should grant a defendant's
request for a multiple conspiracy instruction if, on the evidence adduced at trial, a
reasonable jury could find more than one such illicit agreement, or could find an
agreement different from the one charged. United States v. Boylan, 898 F.2d 230, 243
(1st Cir.1990); see also United States v. Dennis, 917 F.2d 1031, 1033 (7th Cir.1990);
United States v. Dwyer, 843 F.2d 60, 6162 (1st Cir.1988).
As it is highly likely that the voluminous and complex record in this case viewed
in the light most favorable to the defendants, would allow for a plausible conclusion that
more than one conspiracy took place, this Court erred in its failure to give the multiple
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conspiracy instructions. United States v. Brandon, 17 F.3d 409, 449-50 (1st Cir. 1994).
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The Court of Appeals have repeatedly held that a defendant is entitled to a
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Multiple Conspiracy instruction if he specifically and timely requests such an instruction
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and his theory has legal and evidentiary support. United States v. Stowell, 947 F.2d
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1251, 1258 (5th Cir.1991) cert. denied, 503 U.S. 908, 112 S.Ct. 1269, 117 L.Ed.2d 497
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and cert. denied, 506 U.S. 902, 113 S.Ct. 292, 121 L.Ed.2d 217 (1992).
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The 5th Circuit found that a multiple conspiracy instruction is generally required
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where the indictment charges several defendants with one (1) overall conspiracy, but the
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proof at trial indicates that some of the defendants were only involved in separate
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conspiracies unrelated to the overall conspiracy charged in the indictment. United States
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v. Greer, 939 F.2d 1076, 1088 (5th Cir.1991) (quoting United States v. Anguiano, 873
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F.2d 1314, 1317 (9th Cir.) cert. denied, 493 U.S. 969, 110 S.Ct. 416, 107 L.Ed.2d 381
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(1989)) (emphasis added), opinion reinstated in part by*1334 968 F.2d 433 (5th
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Cir.1992) (en banc), cert. denied, 507 U.S. 962, 113 S.Ct. 1390, 122 L.Ed.2d 764 (1993).
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See United States v. Castaneda-Cantu, 20 F.3d 1325, 1333-34 (5th Cir. 1994)
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The 11th Circuit also shares this view. Generally, a multiple conspiracy
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instruction is required where the indictment charges several defendants with one overall
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conspiracy, but the proof at trial indicates that a jury could reasonably conclude that
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some of the defendants were only involved in separate conspiracies unrelated to the
overall conspiracy charged in the indictment. United States v. Nunnally, 249 F. App'x
776, 780 (11th Cir. 2007)
Attached to as Exhibit A is Max Petrosyans 302. The interview was conducted
on April 14, 2011. PETROSYAN advised the government that he hired PRAKASH
despite the fact that PRAKASH was already on pre-payment review with MediCare.
PETROSYAN advised the government he did not care that PRAKASH was on pre-
payment review because PETROSYAN planned on getting his own MediCare provider
number for H&M Management. PETROSYAN only needed PRAKASH to be the
Medical Director so he could list PRAKASH as the supervising physician on the
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MediCare application, and for this, PETROSYAN paid PRAKASH $2,000 per month.
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He advised that PRAKASH had no job duties as Medical Director for H&M
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Management. As far as Dr. Prakash was concerned, working for a fixed price per month
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was not unusual and consistent with his prior experiences.
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PETROSYAN identified PRAKASH as a neurologist, and PRAKASH also did
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interpretation for nerve conduction studies at H&M Management. Each nerve conduction
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study needed the signature of a neurologist. PRAKASH came to H&M Management
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once per week or once every two weeks to review nerve conduction study results. In
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addition to the $2,000 per month PRAKASH received for being the Medical Director, he
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was also-paid the professional component for each nerve conduction study he
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interpreted. PRAKASH was aware that H&M Management did other diagnostic studies
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such as ultrasound, but these studies were interpreted by other physicians, and
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PRAKASH had no involvement with those other studies.
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PETROSYAN advised that H&M Management billed MediCare under
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PETROSYAN'S MediCare provider number (TD 084), and nothing was billed under
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PRAKASH'S provider number. PETROSYAN did not apply for a MediCare provider
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number in PRAKASH'S name for H&M Management. PETROSYAN said his diagnostic
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center did global billing, which included billing for a professional and a technical
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component for each test.
H&M Management had three technicians who went to various clinics to perform
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the nerve conduction studies. PETROSYAN said the clinics paid patients to come in, but
he did not know which patients were paid. There were approximately three additional
technicians who did ultrasound and other testing. PETROSYAN stated that he used the
"Cadwell" computer software on his nerve conduction testing computers. The computer
printed out the numbers from the test (the results), and provided an interpretation.
PRAKASH reviewed the results and the interpretation, and signed his name on the
report. It took PRAKASH approximately 1-1.5 hours to review approximately 15-25
tests.
Occasionally, PRAKASH would make changes to the report or tell the technicians
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to put different numbers into the machine for calibration. PETROSYAN does not have
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medical experience, and he did not understand the medical discussions between
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PRAKASH and the technicians, however, this confirms there was work being done.
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PETROSYAN also confirmed he was business partners in H&M Management on
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a handshake with KHACHATUR ARUTUNYAN. This also shows that Dr. Prakash and
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other doctors were hired independently on a per job basis. This also shows that
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PETROSYAN did his own deals, separate and apart from Vardges EGIAZARIAN.
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evidence was insufficient to link Dr. Prakash in a conspiracy that involved all three
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clinics. It was clear that different operations were negotiated and structured differently.
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Dr. Prakash was not involved with the other clinics and unequivocally stopped working
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for the Sacramento clinic no later than 3-23-2007.
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Zoya Belov testified to the following:
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From Page 6
Q. BY MR. RICHARDS: Were you ever -- how were you instructed
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You previously testified that you were instructed that it was
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better if Dr. Popov and Dr. Prakash did not know about each
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other. Who instructed you about that?
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A.
Vardges.
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The
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This testimony further proves Dr. Prakash was in the dark as to any other
conspiracy or participants.
II.
THE SUMMARY CHARTS SHOWING A 20% SPLIT OF THE PROCEEDS
WAS MISLEADING, CAUGHT THE DEFENSE BY SURPRISE, AND CREATED
UNDUE PREJUDICE
Agent LAURA GIOUZELIS prepared charts and sprung upon the defense a 20%
figure during trial that attempted to imply that there was some connection between the
split for each clinic.
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The Excel spreadsheet for Dr.Prakash sets forth the following:
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Provider Allowed amount:
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385,967.06
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20 percent would be: $77.193.412
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Provider Paid amount:
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302,770.46
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20 percent would be: $60,554.09
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From the Indictment: Medicare deposit $300,000 and Dr.Prakash withdrew $40,000.
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Medicare deposited: 300,000
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20 percent would be $60,000. There is a $20,000.00 discrepancy.
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If the Court and the government review all the available numbers given to the
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defense prior to trial, not one of them indicates that Dr.Prakash was paid 20% as the
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government argued at trial. AT BEST HE WAS PAID 11% of the billings and 13.5% of
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what was actually paid out. This surprise calculation to the jury showing how all the
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doctors earned the same percentage as what was billed was incredibly prejudicial.
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The jury heard this 20% figure and assumed it was true even though the numbers above
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that were provided to the defense clearly does not support it.
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The charts and findings should have been provided with the 20% tie in PRIOR to
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the trial so the defense was on notice of this statistical comparison. At the time it was
disclosed, Dr. Prakash could do nothing about it.
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III.
THE COURT COMMITTED ERROR BY ALLOWING THE TESTIMONY
OF DR. NEYHART AND THEN PREVENTING CROSS EXAMINATION
The testimony was Dr. Neyhart was irreversible prejudicial, in that it presented
evidence in the form of an opinion that constituted inadmissible character evidence. The
expert testimony also had nothing to do with Medicare fraud and should have been
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excluded pursuant to Federal Rule of Evidence 403.

Expert witness testimony and documentary evidence upon which such
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testimony is based are subject to the rules of admissibility set forth in Daubert v. Merrell
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Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric v. Joiner, 522 U.S.
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136 (1997); and Kumho Tire Company v. Carmichael, 526 U.S. 137 (1998). Daubert
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defined the trial court's gatekeeper function and its obligation to exclude evidence based
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only on subjective belief or unsupported speculation. Daubert set forth factors that
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should be considered in analyzing the reliability of expert testimony. This non-exhaustive
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list of factors, Id. at 593-94, represents a general framework by which the reliability of
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expert testimony can be judged. The Daubert factors are: 1) whether the expert's
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technique or theory can be or has been tested; 2) whether the technique or theory has
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been subject to peer review and publication; 3) the known or potential rate or error of the
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technique or theory when applied; 4) the existence and maintenance of standards and
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controls; and 5) whether the technique or theory has been generally accepted in the
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scientific community.
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A significant Daubert factor is the consideration of whether expert testimony is
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prepared in anticipation of or during the course of litigation, rather than independent of
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litigation. If the former, the testimony is presumptively unreliable. Courts will apply
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greater scrutiny to an expert opinion that was developed solely for litigation purposes.
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See Daubert v. Merrill Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9 Cir. 1995).
The Daubert expert reliability requirement was formally incorporated into Rule
702 as of December 1, 2000: If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if 1) the testimony is based upon
sufficient facts or data; 2) the testimony is the product of reliable principles and methods;
and 3) the witness has applied the principles and methods reliably to the facts of the case.
Kumho Tire, supra, 526 U.S. at 141 conclusively decided that the Daubert gatekeeping
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function of the district court applies to all expert testimony, scientific, non-scientific or
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any type of technical evidence. The Joiner, supra, decision expanded Daubert by its
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directive that there must be 1) a reliable methodology employed by the expert; and, 2) a
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reliable application of that already determined reliable methodology.
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An expert must explain both how and why he reached his opinion, Joiner, supra,
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522 U.S. at 144. And, simply because a well-qualified expert says something, it does not
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make it so. The Joiner decision, at p. 146, emphasized that: [N]othing in either Daubert
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or the Federal Rules of Evidence requires a district court to admit opinion evidence,
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which is connected to existing data, only on the ipse dixit of the expert. A Court may
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conclude that there is simply too great an analytical gap between the data and the opinion
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proffered.
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The possibility for abuse is augmented by the fact that an expert's opinion can
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carry greater weight with the fact-finder simply because it is cloaked in the aura of
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expertise. See, e.g., Clark v. Takata Corp., 192 F.3d 750, 759 n.5 (7th Cir. 1999) (A
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supremely qualified expert cannot waltz into the courtroom and render opinions unless
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those opinions are reliable and relevant under the test set forth by the Supreme Court in
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Daubert).
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Consequently, Rule 702 requires the trial court to judge the reliability of the entire
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how and why of an expert's proffered testimony, from the factual bases, to the underlying
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principles and methods, to the application of those principles and methods to the facts.
[A]ny step that renders the analysis unreliable . . . renders the expert's testimony
inadmissable. In Re Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 745 (3d Cir.
1994); see also, Rudd v. General Motors, 127 F.Supp.2d 1330, 1336 (MD Ala 2001)
(Rule 702 appears to require a trial judge to make an evaluation that delves more into the
facts than was recommended in Daubert, ...). Numerous decisions have considered the
Daubert application post-Kumho.
Legal Standard for Admissibility of Expert Testimony
It is an overarching goal that the trial court ensure the reliability and relevancy of
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expert testimony and to make certain that an expert employs in the courtroom the same
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level of intellectual rigor that characterizes the practice of an expert in the relevant field.
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Kumho Tire, supra, 526 U.S. at 152. It is significant that the Court in Kumho Tire
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exhaustively examined the proffered expert testimony, providing the strong guidance that
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a trial court should do no less in its even analysis. Id. at pp. 1176-79. Indeed in separate
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opinions, both Justice Scalia and Justice Breyer reached accord on the requisite analysis
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the trial court must give to this gatekeeper task. Justice Scalia's concurrence in Kumho
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Tire stresses the importance of the gatekeeping obligation, noting that the trial court's
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discretion in choosing the manner of testing expert reliability is not discretion to perform
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the function inadequately.
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Rather, it is discretion to choose among reasonable means of excluding expertise
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that is fausse and science that is junky. Id. at 1179. In a similar vein, Justice Breyer, the
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author of the Court's opinion in Kumho Tire, noted in General Electric v. Joiner that
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neither the difficulty of the task nor any comparative lack of expertise can excuse the
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judge from exercising the gatekeeper duties that Federal Rules of Evidence impose .. .
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522 U.S. at 148 (Breyer, J., concurring). Daubert directs that the trial court must make an
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inquiry as to whether proffered expert testimony is sufficiently tied to the facts of the
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case that it aids the jury in resolving a factual dispute. Id. at p. 591. This necessary
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relationship is critical because Daubert cautions that expert testimony should not be an
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attempt to opine about the exhaustive of search for cosmic understanding but rather it
should be specific and pertinent because in the courtroom the issues are directed towards
the particularized resolution of legal disputes. Id. at pp. 596-597.
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Dr. Prakash filed a motion in limine to preclude Dr. Neyharts testimony. Yet, the
motion was denied.
Federal Rules of Evidence 702 requires that, to qualify as an expert, a witness
must offer some special knowledge, skill, experience, training, or education in the
specific topic regarding which he proposes to testify. United States v. Chang, 207 F.3d
1169, 1172 (9th Cir. 2000). Rule 702 further requires that there be a fit between the
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witness' knowledge and the opinions he proffers.

Even if an expert's credentials qualify him as an expert generally, they may not be
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sufficient to allow him to express the proffered opinion. The mere fact that an expert is
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qualified in one area does not necessarily qualify the expert to testify in related areas.
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Indeed, there are many different kinds of expertise. Courts will strike an expert whose
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area of expertise does not fit the case. Kumho, 526 U.S. at 150. See Shreve v. Sears,
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Roebuck & Co, 166 F. Supp.2d 378, 394 (D.Md. 2001) (excluding an eminently qualified
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mechanical engineer and professor of mechanical engineering where he had no particular
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expertise in snow throwers); Kerringan v. Maxon Industries, 223 F. Supp.2d 626, 637
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(E.D.Pa 2002) (noting that, even though an expert was qualified to testify in general
20
terms about the function of a hydraulic system in a cement mixer, he was not qualified to
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testify about a proposed safety feature because he lacked experience in equipment
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design); Trumps v Toastmaster, Inc., 969 F. Supp.247, 252 (S.D.N.Y. 1997) (board
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certified safety professional and mechanical engineer not qualified to testify regarding
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the malfunction of electric grill).
25
In Bogasion v. Mercedes Benz, the First Circuit affirmed the exclusion of an
26
expert's design defect opinion where the expert had extensive expertise in auto
27
mechanics but very limited education in engineering and no experience in the design and
28
manufacture of automobiles. 104 F.3d at 479. An expert's qualifications are often of
15
greater significance outside engineering context. For example, in Berry v. Detroit, the
Sixth Circuit included the opinion of a former sheriff that the defendant policy
department failed to adequately discipline its officers. 25 F.3d at 1348-53. The court
emphasized that the expert did not have any first-hand familiarity with disciplining police
officers or the effect of lax discipline on the rest of police force, Id. at 1350, and held
that his broad experience as a sheriff did not qualify him to give his specific opinion
about alleged disciplinary shortcomings. Id. at 1352. Thus, when facing experience based
experts, it is particularly important to identify the expert's precise opinion and to analyze
the expert's experience in that particular field. A witnesses' expertise in one particular
10
subject does not qualify him to offer opinions about an entirely different subject even
11
though it may be within the same field. See In Re Unisys Savings Plan Litigation, 173
12
F.3d 145, 156-157 (3rd Cir. 1999) (court properly excluded testimony of expert whose
13
alleged expertise in methods of investing with respect to property casualty insurance, did
14
not fit with the case which involved life insurance).
15
Likewise here, Dr. Neyhart had zero background in billing fraud or billing
16
practices. Her opinion were based upon fictitious patients. As will be shown below, the
17
Court improperly limited counsels cross examination.
18
MEDICAL DOCTORS
19
A scientist or medical doctor is not presumed to have expert knowledge about
20
every conceivable scientific principle or disease. Whiting v. Boston Edison Co., 891 F.
21
Supp. 12, 24 (D. Mass. 1995).
22
Every licensed medical doctor should not be automatically qualified to testify as
23
an expert on every medical question. Broders v. Heise, 924 S.W.2d 148, 152-153 (Tex.
24
1996) it must be shown that the expert possesses special knowledge as to the very matter
25
in which he proposes to give an opinion. Because doctors have medical specializations,
26
the testifying doctor must have expertise concerning the actual subject of their opinion.
27
An M.D. degree alone is not enough to qualify the expert to give an opinion on every
28
conceivable medical question. Christophersen v. Allied-Signal Corporation, 939 F.2d
16
1106, 1112-13 (5th Cir. 1991). See also O'Connor v. Commonwealth Edison Co., 807 F.
Supp. 1376, 1390 (C.D. Ill. 1992) (No medical doctor is automatically an expert in every
medical issue merely because he or she has graduated from medical school or has
achieved certification in a medical specialty).
The health care fraud statute punishes one who knowingly and willfully
executes, or attempts to execute a scheme to defraud Medicare. 18 U.S.C. 1347. U.S.
v. Awad (9th Cir. 2009) 551 F.3d 930, 938 cert. denied, (U.S. 2009) 129 S.Ct. 2748 [174
L.Ed.2d 249]
The 9th Circuit has upheld the exclusion of medical expert testimony as to billing
10
practices. The report proffered by the government does not remotely come close to that
11
foundation nor should the government be allowed to present evidence through this expert
12
relating to billing practices. United States. v. Little (9th Cir. 2007) 230 Fed.Appx. 701,
13
703.
14
Furthermore, this evidence is inadmissible under Rule 704(b). Federal Rule of
15
Evidence 704(b) specifically precludes an expert from testifying in any way as to the
16
ultimate issue of fact for the jury -- whether defendant had the intent to commit the
17
crime: No expert witness testifying with respect to the mental state or condition of a
18
defendant in a criminal case may state an opinion or inference as to whether the
19
defendant did or did not have the mental state or condition constituting an element of the
20
crime charged or of a defense thereto.
21
Such ultimate issues are matters for the trier of fact alone. Fed. R. Evid.
22
704(b).Rule 704(b) applies to all expert witnesses who are asked to state an opinion or
23
inference as to a defendant's mental state or condition. United States v. Morales, 108
24
F.3d 1031, 1035-36 (9th Cir. 1997) (en banc). A prohibited opinion or inference under
25
Rule 704(b) is testimony from which it necessarily follows, if the testimony is credited,
26
that the defendant did or did not possess the requisite intent. Id. at 1037. Congress added
27
Rule 704(b) to eliminate the confusing spectacle of competing expert witnesses testifying
28
to directly contradictory conclusions as to the ultimate legal issue to be found by the trier
17
of fact. United States v. Campos, 217 F.3d 707, 711 (9th Cir. 2000) (citing Senate Report
No. 98-225 at 230-31 (1984)). The rationale for precluding ultimate opinion testimony
applies to any ultimate mental state of the defendant that is relevant to the legal
conclusion sought to be proven. Id. at 711.

Finally, it is a cardinal rule in the 9th Circuit that experts may not testify about
5
6
issues within the ken of the jury. United States v. Fuentes-Gariaga, 209 F.3d 1140, 1142
n.3 (9th Cir. 2000) Expert testimony that consists of nothing more than drawing [factual]
inferences ... that [the expert is] no more qualified than the jury to draw is inadmissible.
United States v. Bender, 769 F.2d 595, 602 (9th Cir. 1985).
B. DR. PRAKASH WAS DENIED HIS RIGHT TO CROSS EXAMINATION
10
11
OF DR. NEYART.
A copy of the cross examination is attached as Exhibit B. The relevant parts are
12
13
set forth below. All of this was fair game in cross examination, dozens and dozens of
14
questions were sustained on the governments objections. 75 to be exact. The ones Dr.
15
Prakash finds erroneous are set forth below.
16
1.
17
Q. And in this case are you aware that patients were
18
paid $100 a patient to go to the clinics?
19
MR. FERRARI: Objection. Relevance.
20
THE COURT: Sustained. (This was important for the jury to hear that the expert
21
did not know all the facts, namely, this was fake patients who were lying about their
22
symptoms.)
23
2.
24
Q. And isn't it true if the patient has a financial
25
interest in getting treatment, that could skew a lot of your
26
findings?
27
MR. FERRARI: Objection. Foundation.
28
THE COURT: Sustained.
(This was important for the jury to see the significance of
18
a patient who lies.)
3.
Q. BY MR. RICHARDS: Isn't it true that if a patient is
holding back facts to the clinician, that could affect the
clinician's diagnosis?
4.
Q. And if a patient was just showing up to go through
10
the motions, they may have not cared whether the clinic knew
11
about their primary care physician, correct?
12
MR. FERRARI: Objection. Foundation. Relevance.
13
14
5.
15
Q. Would it be fair or unfair to say that patients that
16
are getting paid to go to a clinic may present themselves
17
differently than patients that are going without some sort of
18
financial benefit?
19
MR. FERRARI: Objection. Foundation and relevance.
20
21
to see the significance of a patient who lies, they would present themselves differently to
22
the physician and would skew any opinion as a result.)
23
6.
24
Q. Well, isn't it true that these type of patients
25
culturally are very secretive?
26
27
THE COURT: Sustained. (Culturally, this ethnic group was private about their health
28
issues. The expert said he had background working with Asians. This question was fair
(#3 #4, & #5, all show why it was important for the jury
19
game. )
7.
Q. Well, isn't it true that it makes a big difference
whether a doctor is doing the initial evaluation of a patient
or a nurse?
MR. FERRARI: Objection. Vague.
8.
Q. BY MR. RICHARDS: When you saw the M.D. line on each
10
of those charts, signed by -- let's just say, hypothetically,
11
for these questions that was Sol Teitelbaum, a licensed
12
physician -- does that make a difference with respect to who is
13
doing the initial evaluation with respect to how you're going
14
to handle it?
15
16
17
the delineation between a doctor like Teitelbaum doing the evaluation versus a nurse. It
18
was important to elicit testimony that a doctors evaluation is important when making
19
assumptions about treatment after another doctor has already examined the patient.)
20
9.
21
Q. BY MR. RICHARDS: In this case, are you aware that
22
Dr. Prakash never -- that in this case Dr. Prakash looked at
23
Sol Teitelbaum's observations when reviewing those files? Are
24
you aware of that?
25
26
27
10.
28
Q. All right. So isn't it true you were never asked to
(These line of questions were intended to show the jury
20
assess whether a doctor, whose job was to determine the quality
control, could make those evaluation -- what they should look
for when they were reviewing another doctor's observations?
11.
Q. BY MR. RICHARDS: Are you aware that another licensed
physician made observations and recommended a transcranial
doppler dozens and dozens of times?
10
MR. FERRARI: Objection. Vague and foundation.
11
12
12.
13
Q. BY MR. RICHARDS: Is the recommendation of a
14
transcranial doppler so out of whack that you would do -- you
15
would report it to law enforcement?
16
17
18
approved by Dr. Prakash would be not be ipso facto fraudulent another physician.)
19
13.
20
Q. BY MR. RICHARDS: Do you know a lot of these patients
21
were suffering from dementia?
22
23
24
14.
25
Q. Well, can you point to a specific file that
26
Dr. Prakash looked at on his set of files, after seeing
27
Dr. Teitelbaum's observations, and he should have known right
28
away that there's something wrong with Dr. Teitelbaum's
(These questions were offered to show that the tests
21
observation?
15.
Q. BY MR. RICHARDS: Assume all the files that say Sol
Teitelbaum on them under the physician M.D. section, assume
he's a doctor, is there one file that you can point to that
when reviewing Dr. Teitelbaum's observations, it should be
immediately apparent that those observations were fictitious?
10
11
12
16.
13
Q. Just -- let me strike that.
14
If you were reviewing another doctor's file at Davis,
15
and you knew it was a legitimate doctor, like a licensed
16
doctor, you would handle a call to that doctor differently
17
than, let's say, if I reviewed it?
18
19
20
(These line of questions were intended to show the jury the delineation between a doctor
21
like Teitelbaum doing the evaluation versus a nurse. It was important to elicit testimony
22
that a doctors evaluation is important when making assumptions about treatment after
23
another doctor has already examined the patient.)
24
17.
25
Q. BY MR. RICHARDS: Doesn't it make a difference as far
26
as maybe -- as how long you're going to look at the file if
27
it's another doctor's personal observations versus just an
28
office person that is not a physician?
22
18.
Q. BY MR. RICHARDS: Are you aware that all of
Dr. Prakash's patients have headaches, dizziness, and blurry
vision, that fits almost all of the type of patients he sees?
19.
10
Q. Well, because if -- don't you have to look at what
11
their B-12 levels are in their blood to determine to see if
12
they're suffering from any low levels?
13
14
15
20.
16
Q. BY MR. RICHARDS: Isn't it important to know what
17
their iron B-12 is in their blood?
18
19
20
21.
21
Q. And you have no idea whether these tests are
22
legitimate or not, correct?
23
24
25
22.
26
Q. But is it fair or unfair to say that if a fraudster
27
is putting fake tests in a file, that you can't make any
28
correct evaluation of the diagnosis, correct?
23
23.
Q. But if the result was a fake result, there would be
no reason for the doctor to review it, right?
Q. BY MR. RICHARDS: As you truthfully testified, you've
never tried to make diagnoses in the past with charts that have
10
counterfeit or fake test results in there, have you?
11
MR. FERRARI: Objection. Vague and foundation and
12
relevance.
13
14
24.
15
Q. But you wouldn't fault the doctor, would you, if he
16
or she was unaware of the result, right?
17
18
19
25.
20
Q. BY MR. RICHARDS: In the standard of care it does
21
require to know the -- you are assuming that the doctor is not
22
a victim of a fraud, isn't that true?
23
24
25
26.
26
Q. But you don't know if that's for Medicare purposes or
27
billing purposes, do you?
28
24
27.
Q. And if a biller was dishonest and submitted false
bills, it would be hard for you to figure it out for awhile,
wouldn't it?
(These line of questions were intended to show the jury that detection is difficult and to
use the governments expert to further some defenses. Dr. Prakash was shut down at
10
every turn.)
11
28.
12
Q. So we don't know if -- when this file was submitted
13
to Medicare, we don't know if Dr. Prakash or Dr. Popov ever saw
14
this file?
15
MR. FERRARI: Objection. Foundation. Assumes facts
16
not in evidence.
17
18
29.
19
Q. BY MR. RICHARDS: When you see a blank abdominal
20
study, you can't really tell if any doctor ever saw this
21
without a signature of theirs acknowledging that they saw it,
22
correct?
23
24
25
30.
26
Q. Are you aware that the charts in this case that
27
relate to Dr. Prakash are littered with stickers where
28
Dr. Prakash -- where there's indications of quality assurance
25
and issues?
MR. FERRARI: Objection. Foundation. Assumes facts
not in evidence.
31.
Q. But because there is no radiology analysis by a
doctor, we don't know if that test ever occurred, correct?
10
32.
11
Q. All right. And isn't it true that generally family
12
practitioners don't like to do stress tests at the office?
13
14
15
33.
16
Q. BY MR. RICHARDS: Does that document, to you, look
17
like a prescription treatment record from the manufacturer?
18
19
20
34.
21
Q. Clonidine. Sorry. If you can go to the third page
22
under dosage. What dosage is that manufacturer dealing with?
23
24
25
35.
26
THE WITNESS: This appears to be the manufacturer's
27
recommended dose.
28
MR. RICHARDS: All right. I move to admit 817.
26
MR. FERRARI: Objection. Hearsay. Relevance.
Foundation.
3
4
THE COURT: Relevance. Sustained.
36.
Q. And if you look at the third page, isn't it true that
the manufacturer says to give less doses if they're elderly?
MR. FERRARI: Objection. Hearsay and relevance.
10
37.
11
Q. BY MR. RICHARDS: Do you disagree with what the
12
manufacturer is suggesting for elderly patients?
13
MR. FERRARI: Objection. Hearsay and relevance.
14
15
38.
16
Q. So isn't it true that the manufacturer says to give a
17
less frequency if they're elderly?
18
MR. FERRARI: Objection. Hearsay.
19
20
39.
21
Q. BY MR. RICHARDS: Do you think the dosage is
22
different if they're elderly versus non-elderly?
23
24
25
40.
26
Q. Isn't it true that you give iron B-12 to someone that
27
assists with helping them get treated for pseudodementia?
28
27
41.
Q. But isn't it true that treatment with iron or B-12
can help pseudodementia?
42.
Q. BY MR. RICHARDS: Did you ever ask the Government if
Dr. Teitelbaum was available for an interview?
10
11
12
43.
13
Q. BY MR. RICHARDS: Let me give you a hypothetical.
14
When you're evaluating doctors -- other doctors' work, isn't
15
it, hypothetically, better if you can interview the doctors
16
that observed the patient directly?
17
MR. FERRARI: Objection. Vague. Relevance.
18
19
44.
20
Q. So, hypothetically, if patients were giving false
21
information to the doctor, can you still evaluate a doctor's
22
standard of care?
23
MR. FERRARI: Objection. Foundation and vague.
24
MR. RICHARDS: A hypothetical.
25
45.
26
27
Q. BY MR. RICHARDS: I just want to give you a
28
hypothetical. If the patients are coming to a doctor's office
28
and withholding their general primary care physician, and
withholding their past medical history, and withholding their
Medicare -- or their medications that they're on, would you
still be able to evaluate their standard of care?
MR. FERRARI: Objection. Foundation, vague and
relevance.
46.
Q. BY MR. RICHARDS: I'll try to give you another
10
hypothetical. If the patient histories were being created
11
unbeknownst to the doctor, would you still be able to evaluate
12
their standard of dare? Hypothetically, if that was occurring,
13
would you still be able to evaluate the standard of care?
14
MR. FERRARI: Objection. Vague, foundation and
15
relevance.
16
17
47.
18
MR. RICHARDS: Can I have the grounds, Your Honor, so
19
I don't ask the same question?
20
THE COURT: Sustained. Move on. Move to a different
21
area.
22
48.
23
Q. BY MR. RICHARDS: Hypothetically, wouldn't it be a
24
good idea to interview patients to find out why they did
25
certain things if you were evaluating the standard of care?
26
27
28
49.
29
Q. BY MR. RICHARDS: When you're evaluating -- just
generally speaking, for the Medical Board, isn't it true that
you've never evaluated a doctor's standard of care when the
information the doctor was receiving was false or fictitious?
50.
Q. BY MR. RICHARDS: When you evaluate doctors for the
Medical Board -- strike that.
10
I'm assuming you pulled Dr. Prakash's medical history
11
with the Medical Board before you evaluated his standard of
12
care, didn't you?
13
14
15
51.
16
Q. BY MR. RICHARDS: Is it important to know if the
17
doctor's had any history of problems with patients?
18
MR. FERRARI: Objection. Vague and relevance.
19
20
52.
21
Q. BY MR. RICHARDS: When you're looking at files to
22
evaluate the standard of care, isn't it true that you're
23
assuming that all the data the doctor is looking at is
24
accurate?
25
MR. FERRARI: Objection. Vague and relevance.
26
THE COURT: Relevance. Sustained.
27
53.
28
Q. BY MR. RICHARDS: Have you ever evaluated a doctor's
30
standard of care and were told that the doctor was relying on
incomplete or fictitious information?
THE COURT: Sustained. It's also 403. Counsel, this
line of questioning is being substantially outweighed by the
waste of time and confusion of the issues.
As you said previously, this is not a malpractice
case. This is a criminal case. Move on.
9
10
MR. RICHARDS: I don't have anything further.
11
Defense counsel went through every subject matter, hypothetical, and procedure
12
that a doctor would do at a clinic. Yet, no matter which way defense counsel attempted
13
to portray the medical opinions by this expert in the context of the facts of this case, he
14
was shut down.
15
16
17
This limiting of Dr. Prakashs right of confrontation interfered with his Sixth
Amendment right to counsel and effective cross-examination.
The Confrontation Clause of the Sixth Amendment "guarantees the right of an
18
accused in a criminal prosecution to be confronted with the witnesses against him."
19
United States v. Larson, 495 F.3d 1094, 1102 (9th Cir. 2007) (en banc) (citing Delaware
20
v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986) (internal
21
quotations omitted)). That right includes "the right of effective cross-examination." Id.
22
(citing Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974)).
23
The Ninth Circuit has recognized that "[e]ffective cross-examination is critical to
24
a fair trial because '[c]ross-examination is the principal means by which the believability
25
of a witness and the truth of his testimony are tested.'" Id. (quoting Davis, 415 U.S. at
26
316). Like the Supreme Court, the Ninth Circuit has "emphasized the policy favoring
27
expansive witness cross-examination in criminal trials." Id. (citing United States v. Lo,
28
231 F.3d 471, 482 (9th Cir. 2000); Van Arsdall, 475 U.S. at 678-79; Davis, 415 U.S. at
31
316). In determining whether a defendant has been denied his Sixth Amendment right to
effectively cross examine a witness, the Ninth Circuit "'consider[s] three factors. . . : (1)
[whether] the excluded evidence was relevant; (2) [whether] there were other legitimate
interests outweighing the defendant's interest in presenting the evidence; and (3)
[whether] the exclusion of the evidence left the jury with sufficient information to assess
the credibility of the witness.'" United States v. Kohring, 637 F.3d 895, 905 (9th Cir.
2011) (quoting United States v. Schoneberg, 396 F.3d 1036, 1103 (9th Cir.
2005)(alterations in original)(citing United States v. Beardslee, 197 F.3d 378, 383 (9th
Cir. 1999)).
10
Dr. Neyhart was the key government witness against Dr. Prakash. Dr. Prakash
11
was precluded from engaging in any significant cross-examination of her--let alone
12
expansive. Under the three-factor test set forth in Kohring, his Sixth Amendment right to
13
confront this key witness plainly was denied. As set forth above, the excluded evidence
14
was in fact relevant, there were no other legitimate interests outweighing Dr. Prakash's
15
interest in presenting evidence that directly spoke to Dr. Neyhart's credibility and the
16
foundation of her expert opinions, and the near-total exclusion of the evidence Dr.
17
Prakash attempted to elicit from Dr. Neyhart left such a paltry record that the jury simply
18
did not have sufficient information to assess Dr. Neyhart's credibility and the validity of
19
the methodology from which she formed her expert opinions. Accordingly, this Court
20
should grant the instant motion and enter an order for a new trial.
21
Dated: December 22, 2011
Respectfully submitted,
22
23
24
/s Ronald Richards
25
__________________________
26
RONALD RICHARDS, ESQ.
27
Attorneys for defendant,
28
RAMANATHAN PRAKASH
32

Prakash Rule29

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4

Ronald Richards, Esq. Bar#176246

Attorneys for Ramanathan Prakash

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

CASE# CR Nos. 08-427-MCE

UNITED STATES OF AMERICA

Federal Rule of Criminal Procedure 29 and/or 33.

Dated: December 13, 2011

Law Offices of Ronald Richards & Associates, A.P.C.

I. The Court Committed Error by Refusing The Multiple Conspiracy Instruction....5-11

the Defense by Surprise, and Created Undue Prejudice..............................................11-12

Preventing Cross Examination....................................................................................12-32

General Electric v. Joiner, 522 U.S. 136 (1997)..............................................................12

Kumho Tire Company v. Carmichael, 526 U.S. 137 (1998).............................................12

Trumps v Toastmaster, Inc., 969 F. Supp.247, 252 (S.D.N.Y. 1997) ..............................15

United States v. Boylan, 898 F.2d 230, 243 (1st Cir.1990).8.............................................8

United States v. Dennis, 917 F.2d 1031, 1033 (7th Cir.1990).......................................... 8

United States v. Dwyer, 843 F.2d 60, 6162 (1st Cir.1988)...............................................8

United States v. Castaneda-Cantu, 20 F.3d 1325, 1333-34 (5th Cir. 1994).......................8

Broders v. Heise, 924 S.W.2d 148, 152-153 (Tex. 1996) ...............................................17

(See Superseding Indictment, 4:18-19)1

intended to defraud Medicare or was part of a large conspiracy.

THE COURT COMMITTED ERROR BY REFUSING

THE MULTIPLE CONSPIRACY INSTRUCTION

THE COURT: I'm going to reject the instruction

because I believe that the evidence that was presented during

the course of the trial indicates that there was a single

conspiracy, not multiple. Now granted there were different

locations, Folsom Boulevard, Richmond, and other locations, but

it was one conspiracy.

different doctors working at different locations, signing

different things, but it was still one conspiracy. That's what

the evidence shows. So as far as 8.22, Mr. Richards, I am

(June 29, 2011, page 11)

Dr. Prakash asserts that he was entitled to a multiple conspiracy instruction

(2) Richmond. A multiple conspiracy jury instruction is appropriate if an indictment

separate conspiracies unrelated to the overall conspiracy charged in the indictment.

another. Id. at 131718. A multiple conspiracy instruction is not required when a

may not agree upon the same set of facts. Id.

Prakash did object and there were three defendants.

The evidence showed the following:

November 27, 2006

January 12, 2006

January 16, 2007

Exhibit 819 showing ticket for 5-1-06 to Sacramento

Vardges Egiazarian had an independent contractor relationship pursuant to a written

been two or three conspiracies if one includes the Carmichael clinic.

met Dr. Popov or Dr. La Chabrier.

Dr. Prakash never

United States v. Dwyer, 843 F.2d 60, 6162 (1st Cir.1988).

The Court of Appeals have repeatedly held that a defendant is entitled to a

Multiple Conspiracy instruction if he specifically and timely requests such an instruction

776, 780 (11th Cir. 2007)

Attached to as Exhibit A is Max Petrosyans 302. The interview was conducted

number for H&M Management. PETROSYAN only needed PRAKASH to be the

Medical Director so he could list PRAKASH as the supervising physician on the

was not unusual and consistent with his prior experiences.

PETROSYAN identified PRAKASH as a neurologist, and PRAKASH also did

study needed the signature of a neurologist. PRAKASH came to H&M Management

PRAKASH had no involvement with those other studies.

PETROSYAN advised that H&M Management billed MediCare under

component for each test.

report. It took PRAKASH approximately 1-1.5 hours to review approximately 15-25