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United States v. Wetselaar

United States District Court, D. Nevada

June 2, 2017

UNITED STATES OF AMERICA Plaintiff,
v.
HENRI WETSELAAR, M.D., Defendant.

          ORDER

          Kent J., Daws District Judge

         Presently before the Court are Defendant Henri Wetselaar's Motion for Release Pending Sentencing (#458), Motion for Acquittal, or in the Alternative, Motion for New Trial (#463), and Motion for Hearing Pursuant to Rule 32.2(b)(1)(B) (#485). Also before the Court is Defendant David Litwin's Motion for Joinder (#466) to Defendant Wetselaar's Motion for Acquittal, or in the Alternative, Motion for New Trial (#463). The Government responded in opposition (##474, 476) to which Defendants replied (##475, 477). Finally, before the Court is Defendant Litwin and Defendant Wetselaar's Joint Motion for Return of Property (#460). The Government responded in opposition (#471), to which Defendants replied (#472).

         I. Motion for Release Pending Sentencing

         Having read and considered the motions and the factors in 18 U.S.C. § 3142(g), the Court finds that Defendant Wetselaar has failed to rebut the presumption that no condition or combination of conditions will reasonably assure the safety of any other person or the community. See 18 U.S.C. § 3142 (e), (f); 18 U.S.C. § 3143 (a)(2). For instance, on December 9, 2016, Defendant Wetselaar filed a notice to the Court stating that he was no longer seeing patients (#349) which stated as follows:

COMES NOW, Defendant Henri Wetselaar, M.D. (hereinafter “Dr. Wetselaar”), by and through his counsel Jeffrey B. Setness of the law firm of Fabian VanCott, and hereby notifies the Court that Dr. Wetselaar is no longer seeing patients.

         However, on March 1, 2017, counsel for Wetselaar, became aware that he was seeing patients in January and February 2017 despite having previously filed a signed declaration from Dr. Charles Bernick stating that he was found to have Alzheimer's Disease, short-term memory impairment, and other cognitive impairments.

         Furthermore, the Court finds that Defendant Wetselaar has failed to show “exceptional reasons” why detention would not be appropriate. 18 U.S.C. § 3145(c). The Ninth Circuit has discussed what could constitute exceptional reasons, which include: (1) whether defendant's crime was an aberration; (2) whether he contributed significantly to society; (3) whether the nature of the crime is sufficiently dissimilar to others in the same category of crimes identified by the statute; (4) the length of the sentence; (5) whether there were circumstances that would “render the hardships of prison unusually harsh for a particular defendant;” (6) the benefit of an “uninterrupted course of treatment;” and (7) the effect of incarceration on the defendant's physical or mental health based on his characteristics. U.S. v. Garcia, 340 F.3d 1013, 1019-20. Nevertheless, “[h]ardships that commonly result from imprisonment do not meet the standard.” Id. at 1022. Instead, the “general rule must remain that conviction for a covered offense entails immediate incarceration.” Id.

         Wetselaar has failed to demonstrate exceptional circumstances that would warrant release pending sentencing. Instead, he cites to various medical episodes he experienced pre-trial and during the trial, and reiterates the findings of several doctors. Medical issues are not unusual or unexpected given Wetselaar's age. Further, he has failed to provide any information that the treatment he is receiving in custody is insufficient, nor has he identified a need for specialized treatment that is unavailable while he is in custody. Instead, Wetselaar moves for his release because he is of advanced age, and according to him, one of the oldest federal defendants. Such assertions do not constitute exceptional circumstances. Wetselaar's recounting of the findings by various doctors is equally unconvincing. In sum, the findings of various doctors is that Wetselaar is of advanced age and has conditions consistent with his age. These findings are far from exceptional, but rather, expected. Therefore, the Court denies Defendant Henri Wetselaar's Motion for Release Pending Sentencing (#458).

         II. Motion for Acquittal

         Rule 29 authorizes a court to set aside a guilty verdict and enter an acquittal if the evidence introduced at trial was insufficient to sustain a conviction. Fed. R. Crim. P. 29(a); United States v. Shetler, 665 F.3d 1150, 1163 (9th Cir. 2011). The Court must review the evidence in a light most favorable to the Government. United States v. Ching Tang Lo, 447 F.3d 1212, 1221 (9th Cir. 2006). A Rule 29 motion must be denied if a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010).

         Defendant Wetselaar's argument, to which Defendant Litwin joins, is one sentence long. He alleges that because the testimony of Dr. Sanford Epstein, the Defendant's expert, contradicted that of the Government's expert there was insufficient evidence to sustain the conviction. (#464 at 2). However, the correct standard requires the Court to review the evidence in the light most favorable to the Government. United States v. Ching Tang Lo, 447 F.3d 1212, 1221 (9th Cir. 2006).

         In order to prove that a physician violated 21 U.S.C. § 841 (drug distribution), the Government must prove that a prescription was not written for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. 21 C.F.R. § 1306.04. During trial, the Government introduced the testimony of an expert witness, Dr. Steven Richeimer, to opine on the propriety of Wetselaar's prescription practices. Richeimer testified that Wetselaar's prescriptions were not written for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. This testimony alone is sufficient to overcome a Rule 29 Motion. Therefore, the Court denies Defendant's Motion for Acquittal (#463).

         III. Motion for New Trial

         Motions for a new trial are governed by Federal Rule of Criminal Procedure 33, which allows a court to grant a new trial “if the interests of justice so require.” Fed. R. Crim. P. 33(a). “A district court's power to grant a motion for a new trial is much broader than its power to grant a motion for judgment of acquittal.” United States v. Alston, 974 F.2d 1206, 1211 (9th Cir. 1992). “A motion for a new trial is directed to the discretion of the district judge. It should be granted only in exceptional cases in which the evidence preponderates heavily against the verdict.” United States v. Pimentel, 654 F.2d 538, 545 (9th Cir. 1981) (internal citations removed). The defendant has the burden to justify the need for a new trial. United States v. Shaffer, 789 F.2d 682, 687 (9th Cir. 1986).

         A. Evidence Related to Patient Deaths

         First, Wetselaar, joined by Litwin, claims that the Court should not have allowed the Government to introduce evidence, specifically a Nevada State Board of Pharmacy (NSBP) complaint, related to several patients who died while under his care. The Government's response in opposition to Wetselaar's motion in limine (#200) stated that the prosecution would not introduce any evidence related to patient deaths during its case in chief. (#267). The Court accordingly denied this specific issue as moot. Consistent with its response, the Government did not introduce this evidence during its case in chief. However, during the cross examination of Wetselaar (and after several side-bars with the Court), the Government asked him if he was familiar with a complaint made to the NSBP. This line of questioning occurred after defense counsel opened the door for questioning about the complaint. Specifically, Wetselaar testified, on direct examination, about his alleged good faith and utmost care of his patients. On cross-examination, Wetselaar denied knowledge of deaths, except for one, and the Government did not introduce the NSBP complaint into evidence. Thus, consistent with its response to this specific issue, the Government questioned Dr. Wetselaar about the document only during cross-examination and did not produce any other evidence of patient deaths during trial.

         Defendant Wetselaar, rather indolently, points to the “pleadings set forth below” - the exhibits filed in conjunction with the present Motion - to support and renew his argument that the Court should not have allowed the Government to question him on cross-examination about patient deaths. He cites Rules 401-404 as the basis for this argument. Although the Court found this issue to be moot, regarding the merits of Wetselaar's renewed argument, the Court finds the probative value of this evidence outweighs its prejudicial value.

         Evidence of the NSBP complaint is relevant to show Wetselaar was on notice that indiscriminately distributing large quantities of addictive drugs could result in death. See United States v. Blanton, 730 F.2d 1425, 1432 (11th Cir. 1984) (evidence of deaths “was relevant to the attitude defendant displayed toward the substances he dispensed”); see also United States v. Schuster, 777 F.2d 264, 270 (5th Cir.), vacated, remanded and appeal dismissed on other grounds, 778 F.2d 1132 (5th Cir. 1985) (in case brought against physician for illegal distribution of controlled substances, court found no reversible error from limited evidence of patient deaths; court “observe[d] that in a proper setting, such evidence might be relevant and admissible as indicative of a cavalier attitude toward drugs dispensed and the consequences of their []use”).

         The motion for a new trial is denied, because the Government did not attempt to introduce the evidence of patient deaths in its case-in-chief, Wetselaar opened the door to cross-examination regarding patient deaths, the NSBP complaint was never introduced into evidence, and the probative value of the NSBP complaint outweighs any prejudicial value, .

         B. Curative Instruction and Introduction of Extrinsic Evidence of Jason Kutz

         Next, Wetselaar, joined by Litwin, argues that the Court should have provided a curative instruction and permitted him to introduce extrinsic evidence for impeachment purposes during the testimony of Government witness, Jason Kutz. During trial, Wetselaar attempted to introduce evidence of Kutz's plea agreement and the cooperation clause it contained.

         “[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (internal quotation marks omitted). Confrontation Clause violations are subject to harmless error analysis. United States v. Orellana-Blanco, 294 F.3d 1143, 1148 (9th Cir. 2002). The right to confront witnesses serves three purposes. First, it ensures reliability by requiring the witness to make statements under oath. California v. Green, 399 U.S. 149, 158 (1970). Second, it submits the witness to cross-examination, which lends itself to the third purpose, which is to allow the jury to assess the witness's credibility. Id. The right to confrontation promotes both the reliability of criminal trials and the perception of fairness in the criminal justice system. Lee v. Illinois, 476 U.S. 530, 540 (1986).

         A district court has considerable discretion in restricting cross-examination of a witness. See United States v. Jenkins, 884 F.2d 433, 435-36 (9th Cir.1989). The Ninth Circuit will find error only when that discretion has been abused. Id.In order for limitation of cross-examination to violate the Confrontation Clause, the limitation must have affected relevant testimony and must have resulted in prejudice to the defendant. United States v. Shabani, 48 F.3d 401, 403 (9th Cir.1995); see also Van Arsdall, 475 U.S. at 681- 684 (holding no error will occur unless cross-examination is restricted to an area of critical importance and the denial of cross-examination was prejudicial). The limitation must have denied the jury the opportunity to gather “sufficient information to appraise the biases and motivations of the witness.” Jenkins, 884 F.2d at 436 (quoting United States v. McClintock, 748 F.2d 1278, 1290 (9th Cir.1984)).

         Wetselaar cites no rule or legal authority to support his request for a curative instruction and for the introduction of extrinsic evidence to impeach Kutz. In fact, Federal Rule of Evidence 608(b) specifically prohibits the introduction of extrinsic evidence for impeachment purposes. Fed.R.Evid. 608(b); see also United States v. Castillo, 181 F.3d 1129, 1129 (9th Cir. 1999). Wetselaar requested only portions of the plea agreement be introduced, instead of the entire document. Allowing the introduction of portions of the plea agreement would only serve to mislead the jury. As such, his request for admission of part of the Kutz's plea agreement was denied.

         As revealed by the transcript (#424; hereinafter identified as “T”) of Jason Kutz's testimony, the witness was extensively cross-examined. All three Defendants inquired about Kutz's criminal conduct at and around the times relevant to this case. See T. at pg. 26 (possessing methamphetamine); 27 (admitting to pleading guilty to conspiracy to distribute opiods); 55-56, 56-59 (fake ID scam); 33, 74 (stating he was not involved in a fake ID scam, but aware of it); 51 (possessing Roxicodone on the day he was arrested and learning from law enforcement he was also in possession of ...


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