Petition for Writ of Certiorari — Arthur Rathburn, Petitioner v. United States
Supreme Court briefJul 25, 2019
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NO.
IN THE
UNITED STATES SUPREME COURT
October, 2019 Term
UNITED STATES OF AMERICA,
Respondent-Appellee,
-vsARTHUR RATHBURN,
Petitioner-Appellant.
ON PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT
CORRECTED PETITION FOR WRIT OF CERTIORARI
CRAIG A. DALY, P.C. (P27539)
Attorney for Petitioner Rathburn
615 Griswold, Suite 820
Detroit, Michigan 48226
(313) 963-1455
Email: 4bestdefense@sbcglobal.net
TABLE OF CONTENTS
Page
Constitutional Question Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii-v
Petition for a Writ of Certiorari to the United
States Court of Appeals for the Sixth Circuit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Opinions and Orders Below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Constitutional Provisions and Statutes Involved . . . . . . . . . . . . . . . . . . . . . . 2
Procedural Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Factual Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Grounds for Allowance of the Writ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
-i-
CONSTITUTIONAL QUESTIONS PRESENTED FOR REVIEW
I.
DID THE GOVERNMENT FAIL TO PRESENT SUFFICIENT
EVIDENCE TO SUPPORT THE CONVICTIONS BEYOND A
REASONABLE DOUBT?
II.
WAS PETITIONER RATHBURN DENIED HIS RIGHT OF
CONFRONTATION, TO PRESENT A DEFENSE AND TO A
TRIAL BY JURY WHEN THE TRIAL COURT ALLOWED THE
GOVERNMENT TO INTRODUCE EVIDENCE THAT ENDUSERS OF THE SPECIMENS WERE CONCERNED THAT THE
SPECIMENS WERE INFECTIOUS WHEN USED AT THE
COURSES AND THEREFORE WOULD HAVE REJECTED
THEM, BUT PRECLUDED CROSS-EXAMINATION AND
PRESENTATION OF EVIDENCE SHOWING THAT THE
SPECIMENS WERE NOT INFECTIOUS AT THE TIME OF THE
COURSES?
III.
CONTRARY TO LAW, DID THE DISTRICT COURT ALLOW
INADMISSIBLE INTERPRETATIONS BY THE GOVERNMENT
WITNESSES AS TO WHAT THE SERVICE AGREEMENT
ACTUALLY MEANT TO VARY AND ADD TO THE EXPRESSED
TERMS OF THE AGREEMENT, AND THEN REFUSED TO
INSTRUCT THE JURY CONSISTENT WITH THE LAW?
IV.
WAS PETITIONER DENIED HIS RIGHT TO DUE PROCESS
AND A FUNDAMENTALLY FAIR TRIAL WHEN THE GOVERNMENT REPEATEDLY SUBJECTED THE JURY TO GRAPHIC
AND HIGHLY INFLAMMATORY, GRUESOME
PHOTOGRAPHS?
V.
SHOULD COUNT TEN BE VACATED BECAUSE THE FEDERAL REGULATIONS REGARDING CATEGORY B INFECTIOUS SUBSTANCES VIOLATES DUE PROCESS BY FAILING
TO GIVE FAIR NOTICE OF PRECISELY WHAT CONDUCT IS
PROHIBITED, IS UNCONSTITUTIONALLY VAGUE AND THE
GOVERNMENT’S WITNESS GAVE MISLEADING TESTIMONY
ABOUT WHAT THE REGULATIONS REQUIRE?
VI.
WAS PETITIONER RATHBURN DENIED HIS RIGHT TO DUE
PROCESS AND A FAIR TRIAL WHEN THE DISTRICT COURT
REFUSED TO GIVE INSTRUCTIONS REGARDING INTERPRETATION OF THE SERVICE AGREEMENT IN SUPPORT OF
THE DEFENSE?
-ii-
INDEX OF AUTHORITIES
Page
CONSTITUTIONAL PROVISIONS
U.S. Const. Am. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20
U.S. Const. Am. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20
U.S. Const Am. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
FEDERAL CASES
Apprendi v. New Jersey, 530 U.S. 466, 477; 120 S. Ct. 2348;
147 L. Ed. 2d 435 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Berger v. United States, 295 U.S. 78, 88; 55 S. Ct. 629;
79 L. Ed. 2d 1314 (1935) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Boyle v. Million 201 F.3d 711, 717 (6th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . 31
California v. Trombella, 467 U.S. 479, 485; 104 S. Ct. 2528;
81 L. Ed. 2d 413 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Chambers v. Mississippi, 410 U.S. 284, 296, 302; 93 S. Ct. 1038;
35 L. Ed. 2d 297 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1105 (6th Cir.1995),
cert. denied, 516 U.S. 1158; 116 S. Ct. 1041; 134 L. Ed. 2d 189 (1996) . . . 37
Connally v. Gen. Constr. Co., 269 U.S. 385, 391; 46 S. Ct. 126;
70 L. Ed. 322 (1926) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Crane v. Kentucky, 476 U.S. 683, 691; 106 S. Ct. 2142;
90 L. Ed. 2d 636 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Darden v. Wainwright, 477 U.S. 168, 181; 106 S. Ct. 2464;
91 L. Ed. 2d 144 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Davis v. Alaska, 415 U.S. 308, 315-316; 94 S. Ct. 1105;
39 L. Ed. 2d 347 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Duncan v. Louisiana, 391 U.S. 145, 156; 88 S. Ct. 1444;
20 L. Ed. 2d 491 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
-iii-
Page
Farm Bureau Mutual Ins. Co. v. Nikkel, 460 Mich. 558, 567-68 (1999) . . . . . . . . . 25
Grayned v. City of Rockford, 408 U.S. 104, 108-09; 92 S. Ct. 2294;
33 L. Ed. 2d 222 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Henderson v. State Farm Fire and Gas Co., 460 Mich. 348, 354 (1999) . . . . . . . . 25
In Re Egbert R. Smith Trust, 480 Mich. 19, 24 (2008) . . . . . . . . . . . . . . . . . . . . . . 25
Jackson v. Virginia, 443 U.S. 307, 319; 99 S. Ct. 2781;
61 L. Ed. 2d 560 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Lambert v. California, 355 U.S. 225, 228; 78 S. Ct 240;
2 L. Ed. 2d 228 (1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Lanzetta v. New Jersey, 306 U.S. 451, 453; 59 S. Ct. 618;
83 L. Ed. 888 (1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Marks v. United States, 430 U.S. 188, 191-92; 97 S. Ct. 990;
51 L. Ed. 2d 260 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Matthews v. United States, 485 U.S. 58; 108 S. Ct. 883;
99 L. Ed. 2d 54 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Michigan Chandelier Co. v. Morse, 297 Mich. 41, 48 (1941) . . . . . . . . . . . . . . . . . . 25
Miskel v. Karnes, 397 F.3d 446, 455 (6th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . 24
Neder v. United States, 527 U.S. 1; 119 S. Ct. 1827; 144 L. Ed. 2d 35 (1999) . . . . 12
Papachristou v. City of Jacksonville, 405 U.S. 156, 162; 92 S. Ct. 839;
31 L. Ed. 2d 110 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Smith v. Illinois, 390 U.S. 129; 88 S. Ct. 748; 19 L. Ed. 2d 956 (1968) . . . . . . . . . 19
Taylor v. Illinois, 484 U.S. 400, 423; 108 S. Ct. 646; 98 L. Ed.2d 798 (1988) . . . . . 20
United States v. Blackwell, 459 F.3d 739, 764 (6th Cir. 2006) . . . . . . . . . . . . . . . . 38
United States v. Blankeney, 942 F.2d 1001, 1010 (6th Cir, 1991) . . . . . . . . . . . . . . 11
-iv-
Page
United States v. Collins, 78 F.3d 1021, 1039 (6th Cir.), cert.
denied, 519 U.S. 872; 117 S. Ct. 189; 136 L. Ed. 2d 127 (1996) . . . . . . . . . . 29
United States v. Cronic, 466 U.S. 648, 656;104 S. Ct. 2039;
80 L. Ed. 2d 657 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
United States v Faulkenberry, 614 F.3d 573, 580 (6th Cir. 2010) . . . . . . . . . . . . . . 11
United States v. Francis, 170 F.3d 546 (6th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . 31
United States v. Hargrave, 416 F.3d 486, 489 (6th Cir. 2005) . . . . . . . . . . . . . . . . . 38
United States v. Love, 534 F.2d 87, 89 (6th Cir. 1976) . . . . . . . . . . . . . . . . . . . . . . . 32
United States v. Nixon, 418 U.S. 683, 709; 94 S. Ct. 3090;
41 L. Ed. 2d 1039 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Washington v. Texas, 388 U.S. 14, 19; 87 S. Ct. 1920;
18 L. Ed. 2d 1019 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
FEDERAL STATUTES AND GUIDELINES
18 U.S.C. §1343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 11
28 U.S.C. §1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
49 U.S.C. §46312 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 12, 33
-v-
NO.
IN THE
UNITED STATES SUPREME COURT
October, 2019 Term
UNITED STATES OF AMERICA,
Respondent-Appellee,
-vsARTHUR RATHBURN,
Petitioner-Appellant.
PETITION FOR A WRIT OF CERTIORARI
FROM THE UNITED STATES COURT
OF APPEALS FOR THE SIXTH CIRCUIT
NOW COMES the Petitioner, ARTHUR RATHBURN, by and through courtappointed counsel, CRAIG A. DALY, P.C., and hereby petitions this Honorable Court
to issue a Writ of Certiorari to review the Opinion rendered in this case by the United
States Court of Appeals for the Sixth Circuit and in support thereof, sets forth as
follows:
OPINIONS AND ORDERS BELOW
The Sixth Circuit Court of Appeals issued its decision on May 8, 2019 in this
case in United States of America v. Arthur Rathburn, Sixth Circuit Court No. 18-1652.
The Circuit Court opinion is contained in the Appendix to this Petition.
-1-
STATEMENT OF JURISDICTION
The Sixth Circuit filed its decision on May 8, 2019. This Court has jurisdiction
under 28 U.S.C. §1254(1) and Supreme Court Rule 13.4.
CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED
This case involves the Due Process Clause of the Fifth Amendment and the right
of confrontation and right to trial by jury of the Sixth Amendment to the Constitution
of the United States of America.
PROCEDURAL STATEMENT OF THE CASE
On January 22, 2018, after a jury trial in the Eastern District of Michigan,
Southern Division, Rathburn was convicted of seven counts of Wire Fraud, in violation
of 18 U.S.C. §1343 and one count of Transportation of Hazardous Material in violation
of 49 U.S.C. §46312.1
On June 1, 2018, the Honorable Paul D. Borman presiding, entered a Judgment,
sentencing Rathburn to a term of imprisonment of a total of 108 months: 108 months
on Counts 1, 2, 3 and 6 through 9, and 60 months on Count 10, all counts running
concurrent (Judgment, R. 156).
On May 8, 2019, the Sixth Circuit Court of Appeals affirmed the convictions
(Appendix, Exhibit A).
1
Rathburn was convicted of Counts 1, 2, 3, 6, 7, 8, 9, charging Wire Fraud and Count 10, charging
Transportation of Hazardous Materials. Rathburn was acquitted by the jury of Counts 4 and 5,
charging Wire Fraud , and Count 13, charging False Statements. Prior to trial, the government
dismissed Count 11, charging False Statements, and the Court dismissed Count 12, charging False
Statements at the close of the government's case.
-2-
FACTUAL STATEMENT OF THE CASE
The government in this cause charged that Arthur Rathburn and his then wife,
Elizabeth, made false statements regarding the condition of human specimens that
were used by medical groups for training purposes.2 The Rathburns operated a human
cadaver supply business, International Biological, Inc. (“IBI”). The government
asserted that Rathburn represented that the specimens had been screened for certain
diseases, specifically HIV, hepatitis B and C, and that they were procured under
“clean” conditions. The government further alleged that the Rathburns knew that
certain specimens had tested positive for these diseases, had failed to inform the
customers (“end-users”) of these test results and that had they known about these
diseases, the end-users would have rejected the specimens.
Additionally, the
government argued that Rathburn’s professional laboratory was not clean, and the
specimens were not properly stored.
seminars.
The fraud charges involved three specific
ally, the government argued that Rathburn had shipped several human
heads to and from Israel for a seminar, and that one of the body donors had died of
sepsis, and that therefore the transportation of that specimen, years later, violated
federal law.
The defense theory was that Rathburn was merely employed in a legitimate and
lawful business, fulfilling an important need for medical research and training, and
that the case was a civil matter involving interpretation of the terms of the contracts.
2
Ms. Rathburn was charged with numerous federal offenses as a co-defendant with her husband,
Arthur, in the January 2016 Indictment. In June 2016, she divorced her husband and eventually
pled guilty to one federal count of Wire Fraud, with an agreement to testify against Arthur Rathburn.
-3-
The government referenced selected portions of the contracts, and relied on the
subjective belief of the end-users. The entire terms of the contract showed Rathburn
did not violate the terms and commit fraud. The human specimens were in fact
screened and the end-users were specifically told that the specimens could be
infectious. The end-users also used universal precautions and treated the specimens
as infectious.
Rathburn also argued that the three specific specimens that the
government alleged were infected, were not, in fact, sent or used by the customers.
Additionally, Rathburn alleged that he did not intend or cause any economic loss to the
end-users, and that all of their seminars were successful.
As for the condition of his warehouse, Rathburn argued that there were no
industry standards and that the overall condition of the warehouse was clean, which
was a completely subjective matter.
As for the shipment of the human heads to Israel, Rathburn argued he did not
knowingly and wilfully transport a specimen, knowing it was infected at the time of
death with sepsis. The documentary evidence showed the person died from Parkinson’s
disease and that at the time of shipment the specimen was not infectious, and
therefore was not a biological hazardous material under law.
With regard to Counts One through Three, the government relied on the
testimony of Dr. Samuel Lee, D.D.S. and the documents related to his course on March
-4-
26, 2011.3 The focus of that count was a specimen, identified as BRCIL 0210002, that
had been screened reactive for hepatitis B.
Dr. Lee, a periodontist, used cadavers on a yearly basis as an important part of
training dentists, primarily for dental implants (R. 127, Transcript, Pg. ID 1386-87).
Dr. Lee was told after the course was completed that he had received a specimen
identified as BRCIL 0210002 that tested positive for hepatitis B (id. at Pg. ID 1388-89).
The operative words relied on by the government in the Service Agreement that,
“unless otherwise expressly set forth on MRF, the anatomical materials to be provided
hereunder will have been screened for HIV ½, surface antigen, hepatitis B and
hepatitis C virus antibody . . .”, were interpreted by Dr. Lee to mean he would not be
provided a specimen that “has HIV, hepatitis A, hepatitis B and hepatitis C” (id. at Pg.
ID 1394-96) (emphasis added). The Material Request Form (“MRF”), which was part
of the Application for Anatomical Materials, provided that the anatomical materials
were procured under “clean” not “sterile” conditions and tested for HIV, hepatitis A,
B and C (Government Exhibit 12E). According to Dr. Lee, he interpreted this language
to mean that he would not receive specimens infected with those diseases and the
provider must report “positive” results to the user (id. at Pg. ID 1393-94, 1403). When
asked if he would have accepted a cadaver with hepatitis B for the course, he
responded, “I prefer not” (id. at Pg. ID 1398).
3
The IBI Service Agreement for the courses in each count was the same. The agreement related to
Dr. Lee’s course, Government Exhibit 12A (p. 2-4).
-5-
Referring to the Service Agreement and MRF, Dr. Lee agreed that the language
contained “very specific words” (id. at Pg. ID 1427). Dr. Lee also agreed he went
beyond the terms of the agreement in his interpretation:
Q.
A.
Q.
A.
Now, you, when asked by Mr. Wyse, you read into this condition
what you believed it meant, not what it said, correct?
Yes, I interpreted the way it says.
You went beyond the actual words that were stated here and gave
your personal opinion about what this meant. Is that correct?
Yes. (Emphasis added) (R. 127, Transcript, Pg. ID 1427-28).
As to the Service Agreement language regarding screening, Dr. Lee agreed the lab
report confirmed that the specimens had, in fact, been screened and that part of the
contract had been fulfilled.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Okay. And so then the first sentence in its totality reads, “Unless
otherwise expressly set forth on MRF, the anatomical materials to
be provided hereunder will have been screened for HIV ½, surface
antigen, hepatitis B and hepatitis C virus antibody and shall
accordingly be treated by the service user and its research
participants as if such materials may be infectious.” That’s the
entire sentence all together, correct?
Yes.
Okay. So the first part says will have been screened for HIV,
surface antigen, hep B and hep C virus antibody. That’s the first
portion, correct?
Yes.
And when you saw the lab report, did the lab report indicate that
the specimens that you were to receive had been screened for HIV,
surface antigen, hep B and hep C, correct?
Yes.
And that part of the contract, therefore, was fulfilled, correct?
Yes. (Emphasis added) (R. 127, Transcript, Pg. ID 1430-31).
Dr. Lee acknowledged that the Service Agreement specifically informed him that the
specimens may be infectious, there were expressed limits on liability for IBI and there
were “no guarantees” (id. at Pg. ID 1431-1432). He further admitted that the contract
-6-
clearly states that “if [a specimen] turns out to be infected . . . it’s not our [IBI’s] fault,”
and that he agreed to that (id., Pg. ID 1432-1434). The agreement also provided for an
expressed waiver related to the human anatomical material supplied by IBI, as well
as an indemnification and hold harmless provision (id. at Pg. ID 1434-35).
Dr. Lee was shown photographs taken in December of 2013 from the Grinnell
warehouse of IBI (Government, Exhibit 29) and asked if, in his opinion, the pictures
depicted a “clean, not sterile environment.” Dr. Lee responded, “clean is a very
subjective term” and then interpreted the photographs according to “my standard” (id.
at Pg. ID 1409).
Dr. Lee told the jury that the course was a success,4 and importantly, that as to
the infected specimen (BRCIL 201102), he cannot actually say that it was ever
delivered to his course – he merely assumed it was (id., Pg. ID 1449-1451).
There was no discount or credit to IBI for the specimen BRCIL 0210002 (Gov’t
Exhibit 14).
Counts Six, Seven, Eight and Nine related to Dr. Kevin Vorenkamp, M.D. and
his course held in Washington D.C. in October of 2012, and the specimen identified as
BRC 2011005. Dr. Vorenkamp was an anesthesiologist and director of a pain medicine
training program in Seattle, Washington (R. 124, Transcript, Pg. ID 2822). Dr.
Vorenkamp requested one (1) “lightly embalmed” specimen, which required a
water/glycerol solution rather than the traditional formaldehyde (id. at Pg. ID 28854
According to Dr. Lee, “[e]veryone who came to the course benefitted by it . . . . The participants
improved their skills and education.” Dr. Lee had no reason to complain to law enforcement about
his relationship with Rathburn (R. 127, Transcript, Pg. ID 1452-1454).
-7-
87). Exhibit 1A, pg. 4 was the Service Agreement between IBI and Dr. Vorenkamp’s
organization (id. at Pg. ID 2889).5 Dr. Vorenkamp said his interpretation of the
operative language regarding screening was “it means that these bodies will be tested
and screened for HIV, hepatitis B and hepatitis C” (id. at Pg. ID 2890).
His
“expectation” was that the cadavers would not have positive tests for those diseases (id.
at Pg. ID 2890). When asked why he did not want bodies that tested positive, he
responded, “Because of my concern for cutting into these bodies” (id. at Pg. ID 2891).
As for the “MRF” language, Dr. Vorenkamp interpreted the language to mean “we
would not get a body that tested positive for those diseases” (id. at Pg. ID 2890). The
invoice for 2011005, from BRC to IBI, showed a discounted rate of $3,500 (id. at Pg. ID
2898). Had Dr. Vorenkamp known of the positive test results, he would have not
accepted the specimen “because of the same concern with the cutting into the body” (id.
at Pg. ID 2899).
When shown photographs of IBI’s laboratory, Dr. Vorenkamp said the lab was
not “clean” (id., Pg. ID 2901).
On further examination, Vorenkamp made significant admissions regarding his
agreement with IBI, namely:
1.
The contract states that “[all] specimens shall be treated by the service
user [ASA] . . . as if such materials may be infectious. Service provider [IBI] expressly
5
The contracts were virtually identical, and, as to the important clauses, employed the exact same
language.
-8-
disclaims any liability should any anatomical material prove infectious.” (R. 125,
Transcript, Pg. ID 1053).
2.
That he does “not see it expressly stated” [that there is] “a guarantee that
the specimen will not be infected” (id., Pg. ID 1054).
3.
That he agrees that there is a warning regarding infection (id).
4.
That he agrees that there is no guarantee in the contract as to the results
of a screening (id., Pg. ID 1055-1056).
As for Count Ten, the government relied on the testimony of Mark Razny, an
Investigator with the Department of Transportation (“DOT”), regarding the regulations
for the transportation of hazardous material. Razny testified that the DOT regulates
the transportation of “infectious bacteria” and repeated that “the bacteria is what we
regulate” (id. Pg. ID 1673).
With regard to the specific specimen that allegedly was a Category B infectious
substance the government relied exclusively on the transit permit, Government Exhibit
23A, which indicated the cause of death was aspirational pneumonia, bacteria not
identified and sepsis, bacteria not identified (R. 128, Transcript, Pg. ID 1593-94).
However, documents provided by BRC stated that the cause of death was Parkinson’s
disease and respiratory failure, without any mention of sepsis or pneumonia (R. 128,
Transcript, Pg. ID 1537). There was no serology test for sepsis performed at the time
of death for the specimen (R. 126, Transcript, Pg. ID 1274). There was no test of the
specimen BRC 1006024 for any infectious virus or bacteria once DOT took possession
of it (R. 129, Transcript, Pg. ID 1677).
-9-
SUMMARY OF ARGUMENT
The jury in this case returned convictions for wire fraud and transportation of
hazardous materials, based on legally insufficient evidence. Therefore they must be
vacated. The district court’s rulings contributed to the convictions by unfairly limiting
Rathburn’s right of cross-examination, to present a defense and to a trial by jury by
allowing government witnesses to express their subjective beliefs and by failing to give
instructions that supported the defense theory. Rathburn was also denied a fair trial
by the repeated use by the government of gruesome and prejudicial photographs of
human specimens. This Court should reverse the Sixth Circuit and vacate the
convictions.
GROUNDS FOR ALLOWANCE OF THE WRIT
I.
THE GOVERNMENT FAILED TO PRESENT SUFFICIENT
EVIDENCE TO SUPPORT THE CONVICTIONS BEYOND A
REASONABLE DOUBT.
The government’s fraud charges were grounded in the IBI Service Agreement
regarding three courses and two specific human specimens. The government sought
to prove the charges, alleging that the terms of the agreement provided that the
specimens would have been screened for certain diseases. The government asserted
that two specimens had tested positive for HIV and hepatitis B shortly after death and
were provided to the end-users without the test results being disclosed. Although the
terms of the agreement had been fulfilled and the courses were completed without
incident, the government nonetheless claimed a scheme to defraud based on the use
of these two specimens. Contrary to the specific language in the agreement, the
-10-
government argued that it contained “a promise” regarding the specimens. The
government failed to prove beyond a reasonable doubt a specific misrepresentation of
a material fact that was intended to deprive the end-users of money. The government
also failed to prove that the specimens in question were, in fact, delivered and used at
the courses.6
Regarding Count ten, the government failed to produce any evidence that the
specific specimen that formed the basis of the charge was infectious when it was
shipped from Israel to the United States. Without any evidence that the specimen was
in fact infectious, the proofs failed to establish that the specimen was a Category B
infectious substance, and therefore had to comply with certain labeling requirements
when shipped. This Court should reverse the Sixth Circuit.
An insufficient evidence claim requires the Court to determine, “whether taking
the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319; 99 S. Ct. 2781; 61 L. Ed. 2d 560 (1979). Under
Sixth Circuit standards, the court must be convinced that the record as a whole, is
supported by substantial and competent evidence. United States v. Blankeney, 942
F.2d 1001, 1010 (6th Cir, 1991).
The Wire Fraud Statute, 18 U.S.C. §1343, requires proof of three elements
beyond a reasonable doubt. United States v Faulkenberry, 614 F.3d 573, 580 (6th Cir.
6
It appears that the jury acquitted Rathburn of the counts related to the course conducted by Dr.
Al-Faraje because the specimen was an extra, not used during the course.
-11-
2010). First, the defendant “devised or wilfully participated in a scheme to defraud”
id. at 581. Second, the defendant “used or caused to be used an interstate wire
communication in furtherance of the scheme”, id. Third, the defendant intended “to
deprive a victim of money or property”, id; Neder v. United States, 527 U.S. 1; 119 S.
Ct. 1827; 144 L. Ed. 2d 35 (1999).
Rathburn contends that the government failed to establish the first and third
elements.
For a conviction under 49 U.S.C. §46312, Transportation of Hazardous Material
the government was required to prove each of the following elements beyond a
reasonable doubt: First, that Rathburn wilfully caused to be delivered property to an
air carrier for transportation. Second, that the property was, in fact, a hazardous
material, that is, a Category B biological infectious substance. Third, that the property
was not marked or managed as required by law (R. 179, Jury Instructions, Pg. ID
3136). Specifically, according to the Indictment, that Rathburn transported the human
head of an individual known to have died from sepsis and aspirational pneumonia (R.
1, Indictment, Pg. ID 13).
Rathburn contends the government failed to prove that he knowingly and
wilfully transported the head realizing that it was infected with sepsis and pneumonia
at the time of death. The documentary evidence proved that the donor died from
Parkinson’s disease, and the government failed to establish that the specimen was in
fact infectious at the time of transportation, and was therefore a biological hazard
-12-
under the law. Since the specimen was not infectious, the packaging and labeling
requirements did not apply.
As for the Wire Fraud counts, the Service Agreement and Material Request
Form (“MRF”) for each of the courses contained the same language. The government
relied on paragraph two, which provided:
“Limitation on liability” in bold letters,
followed by, “Unless otherwise set forth on MRF, the anatomical materials to be
provided hereunder will have been screened for HIV ½, surface antigen, hepatitis B
and hepatitis C virus antibody and shall accordingly be treated by the service user and
its research participants as if such materials may be infectious. Service provider
expressly disclaims any liability should any anatomical material prove infectious”
(Gov’t Trial Exhibit 1A, p. 4-6, R. 176, Transcript, Pg. ID 2889, R. 125, Transcript, Pg.
ID 1052-1055; Gov’t Trial Exhibit 12A, R. 127, Transcript, Pg. ID 1430-1437) (emphasis
added). Both Dr. Lee and Dr. Vorenkamp agreed that there was no guarantee that the
specimens would not be infected (R. 127, Transcript, Pg. ID 1431; R. 125, Transcript,
Pg. ID 1055). In fact, the agreement specifically stated that the anatomical materials
should be treated as if they were infected and that universal precautions be used (R.
127, Transcript, Pg. ID 1443, 1436). Paragraph 5 of the agreement provided a liability
waiver, releasing and waiving all claims against IBI, a hold harmless provision and
indemnification clause for “any reason resulting or arising from the use of the
anatomical material obtained from IBI” (id. Pg. ID 1422-1435). The agreement clearly
provided that “service provider expressly disclaims any liability should any anatomical
material prove infectious” (R. 127, Transcript, Pg. ID 1432-36). There was no provision
-13-
that the specimens would be free of any of the diseases (id. at Pg. ID 1432). The
agreement also provided that it could not be changed “except by written instrument
executed by both parties” (id. at Pg. ID 1436). Just as Dr. Vorenkamp gave his opinion
about what the language of the agreement meant, Dr. Lee also gave his personal
opinion, that his understanding “went beyond the actual words” of the agreement (R.
127, Transcript, Pg. ID 1427-1428).
Since the agreement provided for “screening,” and the laboratory reports showed
the specimens had been screened, that part of the agreement had been fulfilled (R. 127,
Transcript, Pg. ID 1431). Dr. Lee, like Dr. Vorenkamp, specifically agreed that there
were no guarantees that the specimens would not be infectious, either with, or without
the Service Agreement (id. Pg. ID 1431-32). Moreover, regardless of the Service
Agreement, regardless of screening for any diseases, all specimens were to be treated
as if they were infectious (id. at Pg. ID 1432). Even without this provision, the
participants would have used universal precautions and treated the specimens as if
they were infectious (id. at Pg. ID 1443, 1449). Additionally, Dr. Lee admitted he
could not testify that any particular specimen was, in fact, delivered or used at the
course (id. at Pg. ID 1450-51). None of the end-users suffered any financial harm.7
Dr. Lee, like Dr. Vorenkamp, also agreed that what constituted “clean” for
purposes of the agreement was “very subjective” (id. at Pg. ID 1471). Vorenkamp
could not testify to the conditions of IBI Warehouse in October 2012, when his course
7
The government proceeded on a theory that “Arthur Rathburn is charged with causing financial
harm” (R. 100, Motion in Limine, Pg. ID 811).
-14-
was held, and the photographs shown from the warehouse were taken 14 months after
his course (id. at Pg. ID 1063). There are no industry standards for what is a clean
facility.8
The government failed to prove an essential misrepresentation of a material fact
that was intended to deprive the end-users of money. Instead, the government “cherrypicked” a portion of one sentence, at the exclusion of the entire agreement. Moreover,
the alleged failure to disclose the screening results was of no real consequence (and
therefore not material), as the agreement explicitly told the end-users that the
specimens could be infectious and to use universal precautions, and even without the
agreement, the end-users did use universal precautions and treated the specimens as
if they were infectious. Dr. Vorenkamp and Dr. Lee said they would have rejected the
specimens that tested positive at the time of death because they did not want infectious
specimens at the time of the courses. Yet, there was no evidence that any specimen
was infectious at the time of the courses, and the courses were a success, both
professionally and financially. Finally, there was insufficient evidence that the specific
specimens were even delivered and used at the courses.
The Sixth Circuit upheld the fraud convictions based on its interpretation of
what the “ordinary understanding” was of limited terms of the service agreement,
while ignoring both the context of the terms and the entire agreement. The Sixth
Circuit also erroneously concluded that the terms of the agreement would lead the end-
8
Dr. Al-Faraje was the only end-user to visit the laboratory. When he visited in 2013, he described
it as clean (R. 128, Transcript, Pg. ID 1627).
-15-
users to believe that “Rathburn would not intentionally provide them with infectious
specimens” and therefore Rathburn’s misrepresentations were material. This, of
course, inherently contradicts the appellate court’s conclusion regarding the district
court’s correct exclusion of evidence that the specimens were not infectious (See Issue
II, infra). This Court should reverse.
As for Count 10, the government relied exclusively on the transfer permit to
show that the person identified as BRC 1006024 had died on June 12, 2010, from
sepsis and pneumonia. However, the specimen was not transported until March of
2012, some 21 months later (R. 128, Transcript, Pg. ID 1584). That specimen was
never tested to determine if the bacteria that allegedly caused death was present when
it was transported. In short, there was absolutely no evidence that the specimen was
a Category B infectious substance at the time of transportation, as required for a
conviction.
In contradiction, Government Exhibit 22, p. 2 stated that the cause of death was
“Parkinson’s disease,” “due to respiratory failure” (R. 128, Transcript, Pg. ID 1537).
The donor summary stated the cause of death was primarily “Parkinson’s disease,
pelvis fracture, right, due to fall, UTI in past” and did not mention sepsis (R. 126,
Transcript, Pg. ID 1286). Government Exhibit 24, the invoice for BRC 1006024,
showed no discount for this body (id. at Pg. ID 1287). Additionally, there was no
serology test for sepsis performed at the time of death (id. at Pg. ID 1274). There were
no tests of the specimen BRC 1006024 for any infectious virus or bacteria once DOT
took possession of it (R. 129, Transcript, Pg. ID 1677). It did not have an infectious
-16-
disease that had any public health significance (id., Pg. ID 1748). The proofs at trial
were insufficient to establish that the specimen was infected with sepsis and
pneumonia bacteria or virus at the time of death or, more importantly, at the time of
the transportation.
The Sixth Circuit allowed this conviction to stand based on a single document,
a burial transit, prepared by Stephen Gore’s BRC Company, a company that he
admittedly falsified information on documents. The burial transit was contradicted by
all of the other evidence. Under these circumstances, even in a light most favorable
to the government, the conviction cannot stand. The Court should reverse.
II.
PETITIONER RATHBURN WAS DENIED HIS RIGHT OF
CONFRONTATION, TO PRESENT A DEFENSE AND TO A
TRIAL BY JURY WHEN THE TRIAL COURT ALLOWED THE
GOVERNMENT TO INTRODUCE EVIDENCE THAT ENDUSERS OF THE SPECIMENS WERE CONCERNED THAT THE
SPECIMENS WERE INFECTIOUS WHEN USED AT THE
COURSES, AND THEREFORE WOULD HAVE REJECTED
THEM, BUT PRECLUDED CROSS-EXAMINATION AND
PRESENTATION OF EVIDENCE SHOWING THAT THE
SPECIMENS WERE NOT INFECTIOUS AT THE TIME OF THE
COURSES.
In a pretrial motion, the government sought to exclude any evidence, testimony
or argument that the human remains provided to the end-users at the courses in
question were not infectious at the time they were used at the courses.9
The
government sought to exclude such evidence, while seeking to elicit testimony from the
end-users that they would have rejected the human remains that tested positive at the
9
(R. 100, Motion in Limine).
-17-
time of death of specific diseases because they feared infection when used during the
course.10 Specifically, the government alleged that “[t]wo infectious cadavers were used
at those three courses” charged in the wire fraud counts 1-9”.11 The term “infectious”
and/or “infectious disease” appears at least fourteen times in the Indictment. The
district court ruled in favor of the government, excluding testimonial reference to
infectiousness at the time of the courses.12
However, beginning with opening statement and throughout the trial, the
government was allowed to raise the question of infectiousness at the time of the
course as the reason for the end-users rejection of the specimens, and to establish the
materiality of the alleged false representations. At the same time, the district court
repeatedly prevented cross-examination and evidence which tended to establish that
the specimen’s were not infectious. In the end, the government was allowed to supply
the quid pro quo for the Service Agreement: the fear of infection, without a defense to
counteract the government’s theory through cross-examination or the presentation of
evidence. Moreover, this sub-text of infectiousness became the driving theory of the
government’s case against Rathburn. That is that the end-users were afraid they could
be infected at the time the specimens were used.
(id. Pg. ID 811) “The government expects that Rathburn’s victims will testify that would have
rejected the human remains at issue because they feared infection” (emphasis added).
10
11
(id. Pg. ID 819)
12
(R. 168, Transcript, Pg. ID 2287). The trial court’s ruling was that the fraud was when Rathburn
violated the contract by “sending diseased parts,” knowing the government would elicit testimony
that the end-users “didn’t want a body with infectious disease. . .” “I don’t want to be cutting into
these because I don’t want to take the risk” (R. 168, Transcript, Pg. ID 2288-2289).
-18-
Limitations on the right of cross-examination that preclude a person charged
with a crime from placing before the jury facts from which bias, prejudice or lack of
credibility of a government witness might be inferred, constitutes a denial of the right
of confrontation, guaranteed by the Sixth Amendment. Davis v. Alaska, 415 U.S. 308,
315-316; 94 S. Ct. 1105; 39 L. Ed. 2d 347 (1974); Smith v. Illinois, 390 U.S. 129; 88 S.
Ct. 748; 19 L. Ed. 2d 956 (1968).
The Compulsory Process and Due Process Clauses of the United States
Constitution establish the right of a defendant to present a defense.13 Crane v.
Kentucky, 476 U.S. 683, 691; 106 S. Ct. 2142; 90 L. Ed. 2d 636 (1986). Chambers v.
Mississippi, 410 U.S. 284, 296, 302; 93 S. Ct. 1038; 35 L. Ed. 2d 297 (1973). The Court
recognized the right not only as “a fundamental element of due process,” but also
essential to a fair trial because it allows the defendant to place his version of the facts
“to the jury so it may decide where the truth lies.” Washington v. Texas, 388 U.S. 14,
19; 87 S. Ct. 1920; 18 L. Ed. 2d 1019 (1967). See also, United States v. Nixon, 418 U.S.
683, 709; 94 S. Ct. 3090; 41 L. Ed. 2d 1039 (1974). This Court has thus clearly
established that the Constitution guarantees a criminal defendant “a meaningful
opportunity to present a complete defense”, so that the prosecutor's case is subject to
and must “survive the crucible of meaningful adversarial tasking.” California v.
Trombella, 467 U.S. 479, 485; 104 S. Ct. 2528; 81 L. Ed. 2d 413 (1984); Crane v.
Kentucky, supra, 476 U.S. at 691-692; United States v. Cronic, 466 U.S. 648, 656;104
13
U.S. Const. Am. V, VI.
-19-
S. Ct. 2039; 80 L. Ed. 2d 657 (1984). The exclusion of evidence to support a defense
“undermines the central truth seeking aim of our criminal justice system . . . because
it deliberately distorts the record at the risk of misleading the jury into convicting an
innocent person.” Taylor v. Illinois, 484 U.S. 400, 423; 108 S. Ct. 646; 98 L. Ed.2d 798
(1988). The constitutional right to present evidence may allow the admission of
evidence which would not otherwise be admissible under the rules of evidence.
Chambers v. Mississippi, supra.
In the present case the evidence of whether the specimens delivered to the endusers were infectious or not falls squarely within Petitioner Rathburn’s right to present
a defense. Due process requires the admission of this evidence, as it is “relevant,”
“material,” and “vital to the defense.” Washington v. Texas, supra, 388 U.S. at 16;
Crane v. Kentucky, supra, 476 U.S. at 690-691.
Also, a criminal defendant charged with a serious crime has an absolute right
to a trial by jury. U.S. Const Am. VI, XIV. Apprendi v. New Jersey, 530 U.S. 466, 477;
120 S. Ct. 2348; 147 L. Ed. 2d 435 (2000) (The Sixth and Fourteenth Amendment
provide the right to a jury determination of every element of any charged crime beyond
a reasonable doubt); Duncan v. Louisiana, 391 U.S. 145, 156; 88 S. Ct. 1444; 20 L. Ed.
2d 491 (1968) (When a defendant invokes his right to trial by jury, “the jury, not the
judge renders the verdict”). Rathburn was denied his right to have the jury decide his
case by the trial court’s erroneous rulings.
The government told the jury in opening statement:
-20-
The Defendant's lies resulted in medical students and teachers working
with human cadavers that had tested positive for HIV and hepatitis. (R.
176, Transcript, Pg. ID 2796) (Emphasis added).
The government proceeded to introduced evidence of infectiousness on direct
examination of the key end-users of the specimens:
Q.
A.
Q.
A.
Why don't you want bodies that tested positive for these diseases,
Doctor?
Because of my concern for cutting into these bodies.
And does this same concern that you have for cutting into them go
to head and neck specimens as well, these whole bodies?
Yes, it would. (R. 176, Transcript, Pg. ID 2890-91).
Dr. Vorenkamp testified that universal precautions and wearing gloves was
insufficient to protect them from diseased specimens (id. Pg. ID 2893). His concern
about the specimens being infected would not have changed even if they were wiped
down with a powerful disinfectant (id. Pg. ID 2900). When the defense sought to
neutralize this evidence, the government objected:
Q.
If it had been fully embalmed, would it likely have destroyed the
diseases that were involved here, HIV -MR. WYSE: Objection.
THE COURT: Wait. There's an objection.
MR. WYSE: Objection, Your Honor. This is irrelevant. The case is about
the testing of bodies and positive tests. (R. 125, Transcript, Pg. ID 1062).
During cross-examination of Mr. Mueller regarding concerns about infection by
HIV that had lessened over the years, the government again objected (R. 126,
Transcript, Pg. ID 1252). The following side bar occurred, with the district judge
concluding that cross-examination by this line of questioning was irrelevant.
MR. HOWARTH: Thank you -- Mr. Neal that asked Mr. Mueller whether
they accepted bodies in which the patient or the deceased had suffered
from HIV or that and why they didn't take those bodies. And what I
-21-
would merely like to show is that we've now found that they're not
dangerous postmortem, that people can go to funeral homes.
THE COURT: I don't think that's relevant to this case which deals with
the statement saying that they've been tested for this and that seems to
be what we're looking at. I'll sustain the objection. (R. 126, Pg. ID 1253).
On direct examination Dr. Lee testified, when questioned about universal
precautions that, “Even though we use universal precaution, we still can get infected
from the various diseases” adding “there is always the risk” of infection (R. 127,
Transcript, Pg. ID 1399). The government pursued this line of questioning subsequently:
Q.
And is it medically possible -- what happens if tests show that
there's a positive antigen and a negative antibody? Is that cadaver
or that subject still carrying a disease agent?
A.
Yes. (Emphasis added) (R. 127, Transcript, Pg. ID 1404).
On cross-examination of Dr. Lee, counsel inquired about the vaccination for hepatitis
B and the government objected (R. 127, Transcript, Pg. ID 1444). Counsel pointed out
that the government was eliciting evidence that the end-users were concerned that the
specimens were infectious, even with universal precautions, and that is why they
would have rejected the specimens.
The district judge disagreed based on the
“government’s theory”, although the government’s proofs contradicted and went well
beyond their theory. The district judge sustained the objection (id. Pg. ID 1466-68),
Later, counsel sought to impeach Dr. Lee with an email, identified as Defendant’s Exhibit 211 (R. 127, Transcript, pg. ID 1466-67) (Appendix, Exhibit F). The
email, which was to case agent Johnson, revealed that Dr. Lee said he was “disappointed that he was provided unclean specimens” however, he would “forgive him
-22-
[Rathburn] as it did not affect us as we used universal precautions during the seminar”
(id.). The district judge precluded cross-examination by use of the exhibit (id., Pg. ID
1266).
On direct examination, Ronald Wade was questioned about bodies that had
tested positive for HIV or hepatitis and whether users of anatomical materials would
accept them, and he answered:
I think they would rely on that information to assume that the bodies
were cleared to go ahead and use for study purposes, it would be a
minimized risk. (Emphasis added) (R. 129, Transcript, Pg. ID 1698)
Wade returned to the subject of risk to participants who handle the specimens,
testifying that the use of sterile instruments creates “minimal contamination or
possibility of a risk if they happen to injure themselves. . .” (R. 129, Transcript, Pg. ID
1700).
On cross-examination, counsel sought to establish that the fear of AIDS/HIV
spreading among people has changed over time, which was objected to on the grounds
it involved “communicability of these diseases” (R. 129, Transcript, Pg. ID 1710). The
district judge again ruled it was not appropriate cross-examination (id.).
In fact, while the government pursued one theory, that the essence of the fraud
was the non-disclosure of positive testing at the time of death, they pursued a more
powerful and convincing theory that prejudiced Petitioner Rathburn, that is, that the
participants at the courses including students, teachers, and doctors were “working
with cadavers” that would have been rejected because they had concerns that they
were infectious at the time of the courses.
-23-
Preventing the defense from cross-
examining the government witnesses and presenting affirmative evidence about
whether the specimens were in fact infectious completely undermined the defendant’s
ability to address the materiality of the alleged fraud. Infectiousness was, in fact, at
the core of the government’s case, as they repeatedly elicited on direct examination.
The trial court’s exclusion of the evidence “seriously undermined ‘fundamental
elements of the defendant’s defense’ against the crime charged.” Miskel v. Karnes, 397
F.3d 446, 455 (6th Cir. 2005).
The Sixth Circuit found that whether the specimens were infectious at the time
of the courses, as opposed to shortly after death, was irrelevant, notwithstanding that
the government witnesses were allowed to testify that was the reason for rejecting the
specimens. Common sense dictates that if the specimens were not infectious, because
of treatment, lapse of time or any other condition, there would have been no basis to
reject the specimens. The essence of the defense was barred by the district court in
violation of Rathburn’s constitutional right of confrontation and to present his defense.
III.
CONTRARY TO LAW, THE DISTRICT COURT ALLOWED
INADMISSIBLE INTERPRETATIONS BY THE GOVERNMENT
WITNESSES AS TO WHAT THE SERVICE AGREEMENT
ACTUALLY MEANT, TO VARY AND ADD TO THE EXPRESSED
TERMS OF THE AGREEMENT, AND THEN REFUSED TO
INSTRUCT THE JURY CONSISTENT WITH THE LAW.
Agreements are reduced to writing to ensure the parties understand and concur
with the terms of the contract. Extrinsic evidence, that is, evidence outside the written
document, cannot be used to vary, add or to contradict its terms. Simply put, once a
party enters into a contract, they cannot be heard to say they thought it meant
-24-
something other than what it says. Although the government’s fraud charges were
grounded in the IBI Service Agreement that provided exclusively for screening of the
human specimens for certain diseases, the district court allowed the government, over
objection, to elicit testimony of what witnesses believed the terms meant to them.
Government witnesses were allowed to testify to their own personal interpretations of
essential terms of their respective agreements with Rathburn, even when those
interpretations were in contradiction with the clear meaning of those terms. This
allowed the jury to also disregard clear language and convict Rathburn for violating
imagined terms of otherwise clear contracts.
The government witnesses agreed that the IBI Service Agreement, which formed
the heart of the government’s case, was a binding contract between IBI and them.
Without the contract, the government had no case. As such, the law of contracts
applied to the Service Agreement, and in particular, Michigan law, as is specifically
provided in the Service Agreement itself. There was no dispute as to what the Service
Agreement actually stated. Thus, the Service Agreement must, by law, be enforced as
written. Henderson v. State Farm Fire and Gas Co., 460 Mich. 348, 354 (1999). The
written agreement represents the parties intent. In Re Egbert R. Smith Trust, 480
Mich. 19, 24 (2008). Extrinsic evidence which is evidence outside the written terms,
cannot be used to very, add or contradict the expressed terms of the contract. Michigan
Chandelier Co. v. Morse, 297 Mich. 41, 48 (1941). A party to the contract is precluded
from saying he thought the terms were different than those stated. Farm Bureau
Mutual Ins. Co. v. Nikkel, 460 Mich. 558, 567-68 (1999).
-25-
At trial, the government elicited testimony from Drs. Vorenkamp, Lee and AlFaraje as to their interpretation of the Service Agreement terms, outside the explicit
language. When asked on direct examination what the language of the Service
Agreement meant regarding screening and testing, Dr. Vorenkamp testified that “it
means we would not get a body that tested positive for those diseases” (R. 124,
Transcript, Pg. ID 2895-96). Petitioner objected to the government eliciting testimony
of the witnesses’ interpretation of the terms of the Service Agreement, outside the
written agreement itself (R. 125, Transcript, Pg ID 1095-96). The government argued
that they were allowed to question the witnesses as to what the contract meant to
demonstrate materiality of the fraud. The district court overruled Rathburn, saying
it was a matter for a Rule 29 Motion or jury instruction (id., Pg. ID 1100). A requested
jury instruction, consistent with the defense position, was subsequently denied by the
trial court14 (R. 121; Proposed Jury Instructions) (see Argument VI, infra).
Dr. Lee gave his opinion that the critical phrase, “will be screened”, meant that
the specimens he received would not be infected with HIV, hepatitis A, B, C (R. 127,
Transcript, Pg. ID 1394, 1396). Dr. Lee felt the agreement meant that if there was a
positive test, IBI had to disclose that information and notify him (id. at Pg. ID 1398).
The absolute key word in the Service Agreement (and MRF) contracts according
to the government was the term “screened.” In the contract, “screened” is not found
14
The Service Agreement specifically provided that the terms of the agreement could not be
amended except in writing (R. 125, Transcript, Pg. ID 1057).
-26-
in any section dealing with Rathburn’s obligations to the doctors;15 the provision
actually appears in page 1, paragraph 2, entitled “Limitations on Liability.” The
wording states that “the anatomical materials to be provided hereunder shall be
screened [for diseases] and shall accordingly be treated . . . as if such materials may
be infectious.” Far from a contractual promise of a disease-free specimen, the contract
both warns the receiver not to assume that, and further the paragraph “expressly
disclaims any liability should any anatomical material prove infectious.” In this trial
the district court not only refused to enforce the plain meaning of the agreement, but
it further erred in not allowing the jury to be instructed on the fundamentals of
contract interpretation.16
The Sixth Circuit’s conclusion that contract principals were irrelevant is
misplaced. Although the government clearly charged a fraud case, the IBI Service
Agreement and Material Request form were correctly referred to by the appellate court
as “collectively, ‘contracts’”. While government witnesses were allowed to give, over
objection, their subjective interpretation of the terms, the jury had absolutely no
guidance on how such contracts are legally interpreted. As a matter of law, Rathburn
was entitled to a properly instructed jury to pass on the evidence. This Court should
reverse.
15
Paragraph one of the Service Agreement entitled “Description of Services” contains no such
language of “screened.” IBI was not responsible for any screening, as that was done by independent
laboratories at or near the time of death.
16
Ironically, when Rathburn objected to the government witnesses’ subjective belief in the
meaning of the terms, the district court overruled the objection stating it was a matter for a Rule 29
motion or jury instruction (R. 125, Transcript, Pg. ID 1100).
-27-
IV.
PETITIONER WAS DENIED HIS RIGHT TO DUE PROCESS
AND A FUNDAMENTALLY FAIR TRIAL WHEN THE GOVERNMENT REPEATEDLY SUBJECTED THE JURY TO GRAPHIC
AND HIGHLY INFLAMMATORY, GRUESOME
PHOTOGRAPHS.
In December of 2013, federal law enforcement officials executed a search
warrant at the warehouse and laboratory of IBI on Grinnell in Detroit. Graphic and
gruesome photos of human specimens were taken at that time. The condition of the
warehouse was relevant only to the extent that IBI’s Material Request Form (“MRF”)
provided that “all anatomical materials are procured under clean, not sterile
conditions.” The specimens in question were delivered to courses held in 2011 and
2012, well before the December 2013 raid and photo session at the warehouse.
Nevertheless, the government inflamed the jury with these prejudicial photographs on
nine (9) separate occasions, while questioning government witnesses. In addition, the
government exacerbated the prejudice by the use of inflammatory photographs taken
regarding the human heads imported from Israel.
These photographs were so
prejudicial that one juror informed the court he was in need of counseling and inquired
whether that service was available through the court.17 This prejudicial conduct rose
to the level of a deprivation of due process and a fair trial.
This Court admonished prosecutors in Berger v. United States, 295 U.S. 78, 88;
55 S. Ct. 629; 79 L. Ed. 2d 1314 (1935):
that a prosecutor is the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially,
17
This juror was ultimately designated as an alternate.
-28-
is as compelling as its obligation to govern at all; and whose interest,
therefore, in a criminal prosecution is not that it shall win a case, but
that justice shall be done. As such, he is in a peculiar and very definite
sense the servant of the law, the twofold aim of which is that guilt shall
not escape or innocence suffer. He may prosecute with earnestness and
vigor — indeed, he should do so. But, while he may strike hard blows, he
is not at liberty to strike foul ones. It is as much his duty to refrain from
improper methods calculated to produce a wrongful conviction as it is to
use every legitimate means to bring about a just one.
The question then becomes whether the government’s conduct so infected the trial with
unfairness as to render the trial unfair and the conviction a denial of due process.
Darden v. Wainwright, 477 U.S. 168, 181; 106 S. Ct. 2464; 91 L. Ed. 2d 144 (1986).
First, this Court should determine whether the government’s conduct was improper.
If the Court agrees that the conduct was improper, then the Court should determine:
(1) whether the conduct tended to mislead the jury or prejudice the defendant, (2)
whether the conduct was isolated or extensive, (3) whether the conduct was deliberate
or accidental, and (4) whether the evidence against the defendant was strong. United
States v. Collins, 78 F.3d 1021, 1039 (6th Cir.), cert. denied, 519 U.S. 872; 117 S. Ct.
189; 136 L. Ed. 2d 127 (1996).
In this matter, the deliberate, improper conduct was demonstratably prejudicial
and extensive, while the government’s case was not overwhelming, and therefore a new
trial is mandated.
Government Exhibit 29 consisted of five photographs, identified as sub numbers
3, 4, 5, 6 and 7, taken during the execution of a search warrant at Rathburn’s lab in
December, 2013 (R. 176, Transcript, Pg. ID 2827-28). The district court had previously
ruled on the admissibility of these photographs. Photo 3 depicted an open cooler filled
-29-
visibly with human heads, some of which were unwrapped. Other heads were “flesh
on flesh,” frozen solid together (id. Pg. ID 2835). Photo 4 showed a freezer unit with
several plastic bags containing human remains. At the bottom of the freezer was a
dark red or black substance and frozen blood (id. Pg. ID 2835-36). Photo 7 showed a
human torso and head that was in a semi-frozen state (id. Pg. ID 2836). Photo 6
depicted several coolers with dried blood on the bottom (id. Pg. ID 2831). When
Stephen Gore was asked his reaction to seeing the photographs he said they were
“disgusting,” “brought tears to his eyes” and “breaks my heart” (R. 126, Transcript, Pg.
ID 1268). The trial judge admitted that “there is no question that some of the pictures
were graphic and gruesome” (R. 148, Pg. ID 1982). The government distributed these
photographs to the jury for review during testimony of the following witnesses:
1.
2.
3.
4.
5.
6.
7.
8.
9.
S/A Leslie Larsen (R. 176, Transcript, Pg. ID 2827-2831);
Dr. Kevin Vorenkamp (R. 176, Transcript, Pg. ID 2900-2902);
Elizabeth Rathburn (R. 126, Transcript, Pg. ID 1200-1202);
Stephen Gore (R. 126, Transcript, Pg. ID 1267-1268);
James Durkee (R. 126, Transcript, Pg. ID 1326-1329);
Dr. Samuel Lee (R. 127, Transcript, Pg. ID 1408-1410);
Dr. Francisco Diaz (R. 128, Transcript, Pg. ID 1564-1566);
Dr. Al-Faraje (R. 128, Transcript, Pg. ID 1621-1622); and
Ronald Wade (R. 129, Transcript, Pg. ID 1704-1707).
The relevant course dates were as follows:
1.
2.
3.
Dr. Samuel Lee - March 26, 2011 - Counts 1-3;
Dr. Louis Al-Faraje - July 25, 2011 - Counts 4, 5;
Dr. Kevin Vorenkamp - October 2012 - Counts 6-9.
Initially, the repeated use of the photographs was improper. The photos were
inherently disturbing and not essential to proving any element of the charged offenses.
There was no evidence that any of the specimens found at the lab were used in any
-30-
courses. Pictures of the imported heads from Israel did not establish infectiousness or
anything otherwise relevant. Government Exhibits 37 and 39 of the imported human
heads were equally gruesome and inflammatory (R. 127, Transcript, Pg. ID 1487; R.
128, Transcript, Pg. ID 1558.18 Even if the jury were able to consider that there was
little temporal connection of the photos (taken in December, 2013) and the particular
medical courses (March, 2011 to October, 2012), the mere viewing of these obviously
disturbing pictures wrought prejudicial havoc on the defense.
The one juror’s request for counseling after having been repeatedly exposed to
the photographs bears this out. Also, the repeated use of these exhibits demonstrates
that this conduct was extensive, rather than isolated. Further, there can be no
question that this conduct was deliberate, as opposed to accidental. Finally, the
government’s case was not overwhelming. The jurors had to be persuaded to ignore or
reinterpret specific language of the Service Agreements, which amounted to rewriting
them, using the government’s suggested language in place of the specific terms of the
agreements. Here, the paucity of the in the government’s evidence was compensated
by the prejudicial use of the photographs. The government cannot establish, beyond
a reasonable doubt, that the prejudicial conduct did not contribute to Rathburn’s
conviction.
Boyle v. Million 201 F.3d 711, 717 (6th Cir. 2000) (granting relief even
when the case against the defendant was “relatively straight forward and strong”);
United States v. Francis, 170 F.3d 546 (6th Cir. 1999) (new trial granted notwithstand18
Exhibit 37 contained 8 photographs taken at the Delta Cargo Warehouse, identified as #1, 2, 4, 6,
8, 11, 13, and 14. Exhibit 39 contained 3 photographs taken at the Wayne County Morgue and
identified as #1, 2, and 3).
-31-
ing that “proof of guilt is rather strong”). While due process does not demand a perfect
trial, it does require a fair trial. United States v. Love, 534 F.2d 87, 89 (6th Cir. 1976).
The Sixth Circuit misconstrued this issue as simply being “inadmissible
photographs.”
On appeal Rathburn did not argue that the photographs were
inadmissible. While the photographs were inflammatory and gruesome, it was not the
admission of the photographs that Rathburn challenged, but rather the repeated and
deliberate use by the government, subjecting the jury to the evidence in a manner that
rose to the level of misconduct. This Court should reverse.
V.
COUNT TEN SHOULD BE VACATED BECAUSE THE FEDERAL REGULATIONS REGARDING CATEGORY B INFECTIOUS SUBSTANCES VIOLATES DUE PROCESS BY FAILING
TO GIVE FAIR NOTICE OF PRECISELY WHAT CONDUCT IS
PROHIBITED, IS UNCONSTITUTIONALLY VAGUE AND THE
GOVERNMENT’S
WITNESS GAVE MISLEADING TESTIMONY ABOUT WHAT THE REGULATIONS REQUIRE.
The government charged Rathburn with Transportation of Hazardous Material,
a Category B infectious substance, with regard to a single human head which was
shipped via Delta Cargo from Israel to the United States (R. 1, Indictment, Pg. ID 13).
The government alleged that the deceased had died from sepsis and aspirational
pneumonia, notwithstanding substantial documentary evidence to the contrary. More
importantly, there was no evidence that at the time the specimen was transported,
some 21 months after death, that it was in fact infectious. Since there was no evidence
of infectiousness, the federal regulations regarding protective packaging did not apply.
The clear purpose of the federal regulations is to prevent the transportation of
infectious substances which can cause diseases in humans or animals. If the prohibited
-32-
pathogens have been neutralized or inactivated so they no longer pose a health risk,
then the substance is not subject to the regulations. However, the Department of
Transportation (“DOT”) expanded the clear language of the regulation to include “A
material known or reasonably expected to contain a pathogen.” However, whether a
person “reasonably expected” a substance to be infected cannot cause the substance to
be infectious. The DOT interpretation contradicts the actual regulations and fails to
provide fair notice of what conduct is subject to criminal punishment.
Count Ten charged the Transportation of Hazardous Material in violation of 49
U.S.C. §46312. The statute makes criminal the wilful delivery of hazardous property
for interstate transportation when the property has been so designated by the United
States Department of
Transportation.
The DOT divides hazardous biological
materials into Category A and B infectious substances. The government charged
Rathburn with transportation of Category B infectious material. The DOT classifies
the above two categories under Division 6.2 (Infectious Substances), defined as:
A material known or reasonably expected to contain a pathogen. A
pathogen is a micro-organism (including bacteria, viruses, rickettsiae,
parasites, fungi) or other agent, such as a proteinaceous infectious
particle (prion), that can cause disease in humans or animals.
Category B biological substance is defined as:
An infectious substance not in a form generally capable of causing
permanent disability or life-threatening or fatal disease in otherwise
healthy humans or animals when exposure to it occurs. This includes
Category B infectious substances transported for diagnostic or investigational purposes.19
49 C.F.R. 175.3, 49 C.F.R. 171.2 and 49 C.F.R. 173.199, referenced in the Indictment pertain to
packaging requirements for the transportation of “Category B infectious substances.”
19
-33-
An essential element of Count Ten was that the specimen was, in fact, a
hazardous material, that is, a Category B biological infectious substance (R. 179,
Transcripts, Pg. ID 3136).
At trial the government presented Mark Razny, an investigator with the U.S.
Department of Transportation Pipeline and Hazardous Material Safety Administration. According to Razny, his agency writes the regulations for the transportation
of hazardous materials and then enforces them (R. 129, Transcript, Pg. ID 1660).
Razny testified that a “Category B biological substance is ‘an infectious pathogen,’ and
that pathogens are divided into two categories. Category B pathogens include any
infectious pathogen not falling within Category A, such as the flu and common cold.
According to Razny, if a person dies from a disease caused by a Category B pathogen,
then the body is a Category B biological substance (id. at Pg. ID 1664). When death so
occurs, the body would have to be either incinerated or autoclaved before transportation (id. at Pg. ID 1665). Mr. Razny believed that those two options were the only
legally acceptable choices (id. at Pg. ID 1682).
Razny also testified, (referring to Exhibit 23), the burial transit permit for BRC
1006024, which indicated “Sepsis, bacteria not identified,” and “aspiration pneumonia,
bacteria not identified”) that if the person had the bacteria at the time of death, it
constitutes a Category B substance (id. at Pg. ID 1668-69). Razny again reiterated
that the DOT regulates the transportation of “infectious bacteria,” “The bacteria is
what we regulate” (id. at Pg. ID 1673). However, the DOT did no testing of the
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specimens shipped from Israel (id. at Pg. ID 1677). Razny’s testimony, that a body
infected at the time of death which a bacteria constitutes a Category B infectious
substance, was contrary to the regulations and misleading.
Also, his testimony that there are only two methods to destroy the bacteria
under the regulations was equally erroneous and misleading. No DOT regulation
singles out any specific method of rendering a Category B infectious material noninfectious. The DOT publication of Guide to Changes for Transportation Infectious
Substances identifies the Classification Process for substances asking “Have the
pathogens present been neutralized or inactivated so they no longer pose a health
risk?” and if the answer is “yes”, then the substance is not subject to the requirements
of Division 6.2 material, i.e. Biological Infectious Material.
While the government relied exclusively on the burial transport to support their
theory of sepsis as the cause of death, substantial evidence established a different
cause of death. Documentation showed that the cause of death was “Parkinson’s
disease,” “Due to respiratory failure” with a past medical history of “Parkinson’s
disease, pelvis fracture, due to fall and UTI in the past,” without any reference to
sepsis (R. 126, Transcript, Pg. ID 1285-86; R. 128, Transcript, Pg. ID 1537). The
person died on June 12, 2010 (id.). The specimen was transported in March, 2012,
some 21 months later (id.).
Dr. Carl Schmidt, a forensic pathologist employed by the University of Michigan
and the Medical Examiner for Wayne and Monroe counties, was involved in the
charged shipment of specimens from Tel Aviv, Israel to Detroit (R. 129, Transcript, Pg.
-35-
ID 1730). Dr. Schmidt examined all eight human heads and concluded that they did
not have any infectious disease that had public health significance (id., Pg. ID 1748).
Dr. Schmidt opined to Homeland Security that it was unlikely that the specimens were
infectious, because the laboratory reports were negative, preservation liquids are toxic
and tend to inactivate all infectious agents, and the time lapse would also have
inactivated any serious infective potential (R. 136-10, Motion for Judgment of
Acquittal, Pg. ID 1899).
The Due Process Clause of the Fifth Amendment requires that citizens be
afforded fair notice of precisely what conduct is prohibited. Lambert v. California, 355
U.S. 225, 228; 78 S. Ct 240; 2 L. Ed. 2d 228 (1957). While knowledge of the law is
generally presumed, that presumption disappears if a statue is “so technical or obscure
that it threatens to ensnare individuals engaged in apparently innocent conduct,”
Marks v. United States, 430 U.S. 188, 191-92; 97 S. Ct. 990; 51 L. Ed. 2d 260 (1977)
(where the Court stated that people have a fundamental right to fair warning of
conduct that is punishable by criminal penalties). In United States v. Caseer, 399 F.3d
828, 834-837 (6th Cir. 2005) the Sixth Circuit summarized the twin doctrines of fair
notice and vagueness:
At the heart of the fair-warning doctrine is one of the central tenets of
American legal jurisprudence, that “[l]iving under a rule of law entails
various suppositions, one of which is that ‘(all persons) are entitled to be
informed as to what the State commands or forbids.’” Papachristou v.
City of Jacksonville, 405 U.S. 156, 162; 92 S. Ct. 839; 31 L. Ed. 2d 110
(1972) (quoting Lanzetta v. New Jersey, 306 U.S. 451, 453; 59 S. Ct. 618;
83 L. Ed. 888 (1939)); see also Connally v. Gen. Constr. Co., 269 U.S. 385,
391; 46 S. Ct. 126; 70 L. Ed. 322 (1926) (“[A] statute which either forbids
or requires the doing of an act in terms so vague that men of common
-36-
intelligence must necessarily guess at its meaning and differ as to its
application violates the first essential of due process of law.”); Columbia
Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1105 (6th Cir.1995), cert.
denied, 516 U.S. 1158; 116 S. Ct. 1041, 134 L. Ed. 2d 189 (1996)
(“[B]ecause we assume that man is free to steer between lawful and
unlawful 835*835 conduct, we insist that laws give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited, so that
he may act accordingly. Vague laws may trap the innocent by not
providing fair warning.’”) (quoting Grayned v. City of Rockford, 408 U.S.
104, 108-09; 92 S. Ct. 2294; 33 L. Ed. 2d 222 (1972)).
The plain meaning of the term “infectious”, as opposed to “infected” is clear. The
common understanding of infectious, as it is relates to disease, is “able to be passed
from one person, animal or plant to another or capable of causing infection. Having
been infected in the past does not equate with being infectious in the present. Having
been infected with the flu or a cold, obviously does not render one infectious forever.20
While the regulation specifically defines a pathogen as a microorganism that can cause
disease in humans or animals, the DOT expands the category of infectious substances
to include a material that reasonably (could) be expected to contain a pathogen,
whether it is infectious or not. Thus, the regulations and definitions as written, are
contradictory and vague to the extent that precisely what conduct is prohibited is not
clearly defined.
VI.
PETITIONER RATHBURN WAS DENIED HIS RIGHT TO DUE
PROCESS AND A FAIR TRIAL WHEN THE DISTRICT COURT
REFUSED TO GIVE INSTRUCTIONS REGARDING INTERPRETATION OF THE SERVICE AGREEMENT IN SUPPORT OF
THE DEFENSE.
20
The absurdity of Razny’s testimony would preclude any person from traveling interstate whoever
had been infected in the past with the flu or common cold.
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The defense submitted special requests that the jury be instructed regarding
Michigan law on contracts (R. 177, Transcript, Pg. ID 2989-98). The district court
ruled that the instructions would apply only to a civil case and refused to give the
requested instructions because this was a “federal fraud case based upon material
misrepresentations” (id., Pg. ID 2993). The district court ignored Rathburn’s right to
have the jury instructed on the law consistent with his defense presented. That error,
deprived Rathburn of his constitutional right to a fair trial.
The Sixth Circuit
disagreed.
Generally, a court reviews the district court’s decision to deny a specific jury
instruction for an abuse of discretion, reviewing the instructions as a whole to
determine if the jury was adequately informed on the law, reversing if the instructions
as a whole were confusing, misleading, and prejudicial. United States v. Blackwell,
459 F.3d 739, 764 (6th Cir. 2006). However, the refusal to give a requested instruction
is reversible error when the requested instruction is a correct statement of the law, the
requested instruction is not covered by other delivered charges, and the failure to give
the instruction impairs the defendant’s theory of the case. United States v. Hargrave,
416 F.3d 486, 489 (6th Cir. 2005). Rathburn’s proposed instructions meet these
requirements and reversal is necessary.
The requested instructions were rooted in the defense theory regarding the
interpretation of the Service Agreements, the basis of the government’s case. The jury
had absolutely no guidance, under the law as to, how the Agreements should be
interpreted. The government was allowed to elicit subjective testimonial interpreta-38-
tions of the Agreements, contrary to their expressed terms, that went directly to the
issue of whether there was a material representation. In fact, under the law, the
complainants’ belief in the meaning of the terms was not controlling. There is no
dispute that the requested instructions correctly stated the law, only whether the
district court believed they should be given. While the defense argued that the parties
were bound by the expressed terms of the Agreements, there were no instructions to
the jury that this defense had any support in the law.
The “fraud” charges in the various counts of the Indictment came exclusively
from the contracts Rathburn entered into with Drs. Vorenkamp, Lee and Al-Faraje,
referred to as Service Agreements. The interpretation of these contracts was essential
to the government’s case. The defense argued that the jury’s consideration must not
be in a vacuum, the jurors must understand the law of contracts. Therefore Rathburn
submitted Michigan Civil Jury Instructions regarding contract interpretation (R. 177,
Transcript, Pg. ID 2989-98). The trial court rejected those instructions, basing its
ruling merely on the obvious fact that the instant case was a “federal fraud case based
on material misrepresentation” (id., Pg. ID 2993). Seemingly, the district judge would
not recognize that a federal criminal charge could also have civil law applications.
Unfortunately, in the context of this case, he was wrong.
The defense theory, supported by the evidence, regarding the interpretation of
the terms, and whether they were fraudulent, fell on deaf ears because there was no
law given to the jury to support it (R. 178, Transcript, Pg. ID 3076-79, 3085-86). These
instructions were crucial because there are no federal laws, rules or regulations that
-39-
NO.
IN THE
UNITED STATES SUPREME COURT
October, 2019 Term
UNITED STATES OF AMERICA,
Respondent-Appellee,
-vsARTHUR RATHBURN,
Petitioner-Appellant.
ON PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT
PETITIONER'S APPENDIX
CRAIG A. DALY, P.C. (P27539)
Attorney for Petitioner Rathburn
615 Griswold, Suite 820
Detroit, Michigan 48226
(313) 963-1455
Email: 4bestdefense@sbcglobal.net
TABLE OF APPENDIX CONTENTS
Description of Item
Page
EXHIBIT A Sixth Circuit Opinion, dated May 8, 2019 . . . . . . . . . . . . . . . . . . . . . . 1
Case: 18-1652
Document: 42-1
Filed: 05/08/2019
Page: 1
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540
POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988
Deborah S. Hunt
Clerk
Filed: May 08, 2019
Mr. Craig Alvin Daly
Mr. James C. Howarth
Law Office
615 Griswold
Suite 820
Detroit, MI 48226-0000
Mr. Timothy John Wyse
United States Attorney's Office
211 W. Fort Street
Suite 2001
Detroit, MI 48226
Re: Case No. 18-1652, USA v. Arthur Rathburn
Originating Case No. : 2:16-cr-20043-1
Dear Counsel,
The Court issued the enclosed opinion today in this case.
Sincerely yours,
s/Cathryn Lovely
Opinions Deputy
cc: Mr. David J. Weaver
Enclosure
Mandate to issue
Tel. (513) 564-7000
www.ca6.uscourts.gov
(1 of 20)
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Document: 42-2
Filed: 05/08/2019
Page: 1
(2 of 20)
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0247n.06
Case No. 18-1652
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ARTHUR RATHBURN,
Defendant-Appellant.
)
)
)
)
)
)
)
)
)
May 08, 2019
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN
BEFORE: SILER, GIBBONS and DONALD, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. After a jury trial, Arthur Rathburn was
convicted of seven counts of wire fraud, in violation of 18 U.S.C. § 1343 and one count of illegal
transportation of hazardous material, in violation of 49 U.S.C. § 46312.1 Specifically, the
government charged Rathburn with renting out human bodies and body parts that tested positive
for HIV and hepatitis B to unsuspecting medical professionals. Rathburn was also charged with
transporting a diseased human head overseas and back to the United States without proper
packaging or labeling, in violation of federal law. The district court sentenced Rathburn to
108 months’ imprisonment.
1
Rathburn appeals his convictions, raising several challenges,
Rathburn was also indicted on two additional counts of wire fraud and two counts of
making false statements in violation of 18 U.S.C. § 1001(a)(2). The jury acquitted Rathburn of
these charges.
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Case No. 18-1652, United States v. Rathburn
including insufficient evidence, violation of his right to confrontation, improper jury instructions,
and improper evidentiary rulings. We affirm.
I.
BACKGROUND
Rathburn owned and operated International Biological, Inc. (“IBI”), a Michigan
corporation, until 2013 when it was raided by the FBI and Rathburn and his then wife, Elizabeth
Rathburn, were indicted on charges of wire fraud. IBI supplied human cadavers and other
anatomical specimens to medical professionals for training purposes.
Elizabeth Rathburn2
managed IBI and primarily interacted with its customers. Rathburn obtained donated cadavers
and body parts (“specimens”) from two Chicago-based companies, Anatomical Services, Inc
(“ASI”) and Biological Resource Center of Illinois (“BRCIL”), who obtained their specimens from
the Arizona-based Biological Resource Center (“BRC”).3
Each specimen came accompanied by a donor information sheet and a serology report,
which indicated whether the specimen tested positive for certain infectious diseases, such as HIV
and hepatitis B and C viruses. Once IBI received the specimen and report, Rathburn would store
the specimen in IBI’s warehouse to rent to medical professionals for medical or dental training
courses.
Particularly important here, Rathburn drafted, and directed employees to provide IBI
customers, a Material Request Form (“MRF”) and Service Agreement (collectively, “contracts”).
The MRF read, in pertinent part: “All anatomical materials are . . . tested for HIV and hepatitis A,
2
Elizabeth Rathburn divorced Rathburn prior to trial.
3
After discovering that ASI and BRC obtained their supply of infectious specimens from
BRCIL, Rathburn sought to cut out the middle-man and do business with BRC directly, but BRC
refused. BRC’s business was shut down and Stephen Gore, a principal in BRC, was charged in
Arizona state court of violating the wishes of donors and supplying infected remains.
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B and C.” The MRF provided for further testing “upon request at an additional charge.” The
Service Agreement stated, in part:
Unless expressly set forth on MRF, the anatomical materials to be provided
hereunder will have been screened for HIV ½, Surface Antigen, Hepatitis B and
Hepatitis C Virus Antibody and shall accordingly be treated by service user and its
research participants as if such materials may be infectious. Service provider
expressly disclaims any liability should any anatomical material prove infectious.
(emphasis added).
Rathburn provided identical contracts containing this provision to all IBI customers.
Elizabeth Rathburn testified that the “goal” of this language was to “assure the customer that they
were getting a clean body to work on.” Despite these explicit assurances, Rathburn obtained
specimens that tested positive for infectious diseases for discounted prices and supplied them to
IBI customers, while concealing the positive test results. According to Elizabeth Rathburn,
Rathburn did not disclose positive results “[b]ecause the customer wouldn’t have accepted the
specimen and IBI would have lost the contract.” Instead, she testified that Rathburn believed that
by embalming the specimens, it would “yield the virus inactive.”
Dr. Samuel Lee, a periodontist, testified that IBI supplied a human head for a March 2011
dental-implant training course that he led for Harvard University. Unbeknownst to Dr. Lee, the
head that IBI provided tested positive for hepatitis B. Dr. Lee testified that he believed the
language in the contracts—that the specimen would be “screened” and “tested” for hepatis B—
meant that IBI would not intentionally provide him with a “specimen that [was] infected with
[hepatitis B].” Though Dr. Lee testified that he used “universal precautions” despite Rathburn’s
assurances, he nonetheless would have “prefer[red] not to use a cadaver that tested positive for
hepatitis B” and would have declined IBI’s services had Rathburn disclosed the positive results.
Similarly, Dr. Kevin Vorenkamp, an anesthesiologist and director of the American Society
of Anesthesiologist’s (“ASA”) pain workshop, obtained a cadaver from IBI for use in a training
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conference in October 2012. The serology report obtained by Rathburn revealed that the specimen
tested positive for HIV and hepatitis B.4
Rathburn supplied the infectious specimen to
Dr. Vorenkamp as well without disclosing the positive test results. Rathburn also provided
Dr. Vorenkamp with a cadaveric demographic sheet that falsely indicated the specimen “tested
negative for HIV, hepatitis.”
Like Dr. Lee, Dr. Vorenkamp understood the language in the contracts to mean that IBI
would screen and test the specimens for HIV and hepatitis B, and that the ASA “would not get a
body that tested positive.” Although he, too, used universal precautions, Dr. Vorenkamp testified
that he would not have knowingly received a specimen that tested positive for HIV and hepatitis
B “out of concern for cutting into [infected] bodies.”
The MRF also provided that all specimens would be procured under “clean, not sterile
conditions.” According to FBI Special Agent Leslie Larsen, Rathburn’s facility was all but clean.
Agent Larsen testified that upon entering Rathburn’s warehouse, she observed, among other
things: “upwards of 10 to 20” piles of dead flies and other insects; “dirt and dust . . . caked” on the
floor; multiple specimens “frozen together . . . flesh-to-flesh,” with no barriers to prevent cross
contamination, and dried blood splattered across the floor.
Elizabeth Rathburn confirmed that the conditions observed by Agent Larsen were
consistent with the daily conditions of IBI’s warehouse during the times the IBI provided
specimens to Doctors Lee and Vorenkamp in 2011 and 2012.5 Both doctors testified that they
4
Due to the infected status of the specimen, Rathburn received a credit in the amount of
$3,500.
5
Elizabeth Rathburn further testified that Rathburn often stored specimens in such a manner
that they froze together and Rathburn would need to use a crowbar to separate.
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would not have paid IBI for the specimens had they known Rathburn procured them under
unsanitary conditions.
The government also charged Rathburn with illegally transporting hazardous material,
stemming from his shipment of eight human heads from Tel Aviv to Detroit, Michigan, one of
which came from a donor whose cause of death was “bacterial sepsis and bacterial pneumonia.”
Although Stephen Gore with BRC testified that Rathburn was provided a burial transit form
revealing the donor’s cause of death as bacterial sepsis, Rathburn shipped the infected specimen
to Tel Aviv for an overseas training course, and back to Detroit, Michigan in only a trash bag
placed inside a camping cooler.
Prior to trial, Rathburn attempted to introduce evidence that, although the specimens tested
positive for infectious diseases at the time of death, they were not actually infectious at the time
of the courses.6 The government sought to exclude this evidence, arguing that the case was about
whether Rathburn intentionally misled IBI customers into believing he would not intentionally
provide them with specimens that tested positive for infectious diseases, not whether the specimens
were actually infectious at the time of the course. The district court reserved its ruling for trial, at
which time it agreed with the government and excluded evidence relating to whether the specimens
were infected at the time of the courses. The district court reasoned:
We’re not talking about transporting diseases to the world. We’re talking about the
charge in the indictment where the fraud is that they made a contract, they violated
that by sending diseased parts, and that’s the story. Whether someone at a
conference could have caught the disease, we’re not going to go into that.
6
In his motion for acquittal, Rathburn presented an email from Dr. Carl Schmidt opining
that it was “unlikely” that the specimens were infectious at the time of the courses because: “(1) the
lab reports were negative; (2) anatomical preservation liquids, such as formalin and the embalming
fluids are toxic and tend to inactivate almost all infectious agents; and (3) the time lapse since
death would have inactivated about anything that had serious infective potential.”
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At the close of his case, Rathburn moved for judgment of acquittal on all counts, pursuant
to Rule 29 of the Federal Rules of Criminal Procedure, which the district court denied.
Rathburn timely appeals and raises the following challenges: (1) the government presented
insufficient evidence to support his convictions; (2) 49 U.S.C. § 46312 is unconstitutionally vague
because it fails to give fair notice of what constitutes an infectious substance; (3) the district court
denied him his right of confrontation; (4) the district court allowed inadmissible evidence by
permitting witnesses to testify about what they believed the contracts meant, in violation of
Michigan law; (5) the district court’s failure to give jury instructions regarding alternate
interpretations of the service agreement under Michigan law violated his due process rights; and
(6) the graphic photos shown to the jury were unfairly prejudicial.
II.
ANALYSIS
1. Sufficiency of the Evidence for Wire Fraud
Rathburn first argues that there was insufficient evidence to support his convictions of wire
fraud. To succeed in challenging the sufficiency of the evidence, Rathburn must demonstrate that,
“after viewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” United States
v. Clark, 928 F.2d 733, 736 (6th Cir. 1991) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)). “A defendant bringing such a challenge bears a ‘very heavy burden.’” United States v.
Daniel, 329 F.3d 480, 485 (6th Cir. 2003) (quoting United States v. Vannerson, 786 F.2d 221, 225
(6th Cir. 1986)).
Wire fraud requires the government to prove three elements: “(1) a scheme or artifice to
defraud; (2) use of interstate wire communications in furtherance of the scheme; and (3) intent to
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deprive a victim of money or property.” Id. at 485 (citation and internal quotations omitted).
Rathburn contends the government failed to establish the first and third elements.
With regard to the first element, Rathburn avers the government failed to establish that he
made a material misrepresentation because the contract only “provided for screening” of HIV and
hepatitis B and C, which Rathburn contends was satisfied. According to Rathburn, agreeing to
screen specimens is “[f]ar from a contractual promise of a disease-free specimen.” Thus, he
contends there was insufficient evidence to sustain his conviction. We disagree.
We have recognized that a scheme to defraud requires “sufficient evidence of several
misrepresentations,” and “includes any plan or course of action by which someone intends to . . .
deprive another by deception of money or property by means of false or fraudulent pretenses,
representations, or promises.” Daniel, 329 F.3d at 485 (quoting United States v. Gold Unlimited,
Inc., 177 F.3d 472, 479 (6th Cir. 1999)). A scheme to defraud is not measured by a “technical
standard,” but rather is a “reflection of moral uprightness, of fundamental honesty, fair play and
right dealing in the general and business life of members of society.” United States v. Van Dyke,
605 F.2d 220, 225 (6th Cir. 1979) (citation and internal quotation marks omitted).
Applying this standard, the government presented sufficient evidence that Rathburn
intended to defraud IBI customers into believing he would not supply them with specimens that
tested positive for infectious diseases. First, the ordinary understanding of a promise to “test” and
“screen” for HIV and hepatitis creates a reasonable understanding that IBI would not supply
specimens in spite of a positive result. In addition to its common-sense understanding, Elizabeth
Rathburn testified that Rathburn purposefully provided this language in the contracts to “assure
the customer that they were getting a clean body.” Rathburn’s intent to deceive is further
evidenced by the donor information sheet that he provided to Dr. Vorenkamp, explicitly indicating
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that the specimen “tested negative for HIV, hepatitis,” when Rathburn knew that was false. This
was sufficient evidence for a rational trier of fact to find that Rathburn acted with the intent to
defraud customers.
Rathburn’s misrepresentations were indeed material. A statement is materially false “if it
has a natural tendency to influence, or [is] capable of influencing, the [decision-maker].” Neder
v. United States, 527 U.S. 1, 16 (1999). Doctors Lee and Korenkamp testified that they believed
that by promising to “screen” and “test” the specimen, Rathburn would not intentionally provide
them with infectious specimens and that they would have rejected the specimens had they known
of the positive results. Moreover, Elizabeth Rathburn’s testimony that Rathburn did not disclose
positive results “[b]ecause the customer wouldn’t have accepted the specimen and IBI would have
lost the contract” further signals Rathburn’s knowledge of the materiality of the contract language.
Relying on the following language in the Service Agreement: “[IBI] disclaims any liability
should any anatomical material prove infectious,” Rathburn contends this language demonstrates
that “there were no guarantees that the specimen would not be infected.” This argument falls flat.
That the contracts did not provide a “guarantee” that the specimens would never be infected does
little to counter Rathburn’s indication that diseased specimens would be screened out and not
intentionally provided to customers.
The third element of wire fraud requires that “the misrepresentation or omission must have
the purpose of inducing the victim of the fraud to part with property or undertake some action that
he would not otherwise do absent the misrepresentation or omission.” United States v. DeSantis,
134 F.3d 760, 764 (6th Cir. 1998). Rathburn contends there was insufficient evidence to establish
that he intended to deprive IBI customers of money because his failure to disclose the screening
results “was of no real consequence.” As support, Rathburn relies on the following: (1) the
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agreement explicitly warned customers that the “specimens could be infected,” and to use
“universal precautions;” and (2) the “the course[s] [were] a success,” therefore the customers
“suffered no financial harm.” This is all beside the point.
Indeed, the Service Agreement provided cautionary language expressly limiting liability in
the event a specimen proved infectious. However, providing a specimen that “could” theoretically
prove infectious despite being screened is a far cry from providing specimens that are “known” to
have tested positive for infectious diseases. Rathburn appears to suggest that, because the doctors
used universal precautions, they did not rely on the misrepresentations made in the contracts. What
Rathburn overlooks is that “reliance is not one of the two elements of wire fraud.” United States
v. Griffith, 17 F.3d 865, 875 (6th Cir. 1994) (citation omitted). Thus, that IBI customers used
universal precautions despite Rathburn’s assurance that the specimens would be screened for
certain infectious diseases is not relevant.
Moreover, whether the course was ultimately successful is likewise immaterial to a wire
fraud analysis. See United States v. Merklinger, 16 F.3d 670, 678 (6th Cir. 1994) (“[T]he mail and
wire fraud statutes do not require proof that the intended victim was actually defrauded; the actual
success of a scheme to defraud is not an element.” (citation omitted)). What is relevant, however,
is whether Rathburn made misrepresentations intending to get IBI customers to pay money for
specimens that they otherwise would not have. See Daniel, 329 F.3d at 487 (“It is sufficient that
the defendant by material misrepresentations intends the victim to accept a substantial risk that
otherwise would not have been taken.”).
The record demonstrates sufficiently that the doctors would not have paid Rathburn for the
specimens but for his representations that they would be screened for infectious diseases.
Elizabeth Rathburn testified that if IBI customers knew of the positive results, they “wouldn’t have
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accepted the specimen.” Doctors Lee and Vorenkamp both confirmed that they depended on the
language in the contracts as assurance that the specimens had been screened that they would not
have paid IBI for the specimen had Rathburn disclosed the positive results. This was sufficient
for a jury to determine that Rathburn intended to deprive IBI customers of money. Rathburn fails
to meet his “heavy burden” of showing that “[no] rational trier of fact could have found the
essential elements of” wire fraud. 7 Id. at 485; Clark, 928 F.2d at 736.
2. Sufficiency of the Evidence for Illegal Transportation
of Hazardous Material & Vagueness
Rathburn raises two challenges with respect to his conviction for illegally transporting
hazardous material, in violation of 49 U.S.C. § 46312: (1) the statute is unconstitutionally vague,
and (2) there was insufficient evidence to sustain his conviction. We address both below.8
Vagueness. We review de novo whether a criminal statute is unconstitutionally vague.
United States v. Namey, 364 F.3d 843, 844 (6th Cir. 2004) (citation omitted). To demonstrate that
§ 46312 is unconstitutionally vague, Rathburn must show that it “fails to provide a person of
ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or
7
Rathburn also contends that, because the FBI raid occurred in 2013, a year after the
relevant courses were conducted, there was insufficient evidence to establish that the warehouse
was not clean during the relevant time periods. This claim likewise fails. Elizabeth Rathburn
testified that the condition of the warehouse, as depicted in the photographs taken by the FBI, were
consistent with its daily conditions in 2011 and 2012. This, too, was sufficient for a jury to find
intent to defraud.
8
Relying on Fed. R. Crim. P. 12(b)(3)(A), the government contends Rathburn waived his
vagueness argument because he failed to raise it pretrial. However:
Fed. R. Crim. P. 12(b)(2) provides that “Lack of jurisdiction or the failure of the
indictment or information to charge an offense shall be noticed by the court at any
time during the pendency of the proceeding.” The defense of failure of an
indictment to charge an offense includes the claim that the statute apparently
creating the offense is unconstitutional.
United States v. Seuss, 474 F.2d 385, 387 n.2 (1st Cir. 1973). Thus, this objection may be raised
at any time. Id.
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encourages seriously discriminatory enforcement.”
F.C.C. v. Fox Television Stations, Inc.,
567 U.S. 239, 253 (2012) (citation and internal quotation marks omitted).
Rathburn contends he was not provided fair notice of what conduct the statute prhibted
because the statute’s “clear purpose” of preventing the transportation of “infectious” substances is
contradicted by the Department of Transportation’s (“DOT”) definitional expansion to include
material “known or reasonably expected” to be an infectious substance. Rathburn’s claim, while
couched as a vagueness argument, more accurately challenges the DOT’s authority to define
infectious substances under the statute. Where Congress empowers an agency to promulgate rules
and regulations necessary to carry out an Act, we must uphold those regulations “so long as it is
reasonably related to the purposes of the enabling legislation.” Jackson v. Richards Med. Co., 961
F.2d 575, 581 (6th Cir. 1992) (citation and internal quotation marks omitted).
The relevant statute, § 46312(a)(1), makes it a federal offense to “deliver[]” or “cause[] to
be delivered” hazardous materials to an air carrier for shipment. By explicit delegation, Congress
authorized the DOT to designate as hazardous any material that “may pose an unreasonable risk
to health and safety or property.” 49 U.S.C.A. § § 5102, 5103. In line with this directive, the DOT
defines an infectious substance as “a material known or reasonably expected to contain a
pathogen.” 49 C.F.R. § 173.134. The DOT defines a pathogen as “a microorganism . . . including
bacteria [or] viruses . . . that can cause disease in humans or animals.” § 173.134(a)(1). It is
indisputable that the question of what an infectious substance is “has been duly delegated to the
[DOT], with its expertise, to [answer].” Chrysler Corp. v. Dep't of Transp., 472 F.2d 659, 675
(6th Cir. 1972). Rathburn fails to demonstrate how the DOT’s definition of infectious substance
runs contrary to § 46312(a)(1)’s purpose. That Rathburn would prefer that substances “reasonably
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expected” to contain an infectious substance not come within the purview of the statute is
insufficient to challenge its constitutionality. This argument fails.
Sufficiency of the evidence. Rathburn’s sufficiency of the evidence challenge fairs no
better. At trial, the government charged Rathburn with transporting via air carrier a human head
that was obtained from a body whose cause of death was “bacterial sepsis and bacterial
pneumonia”—both Category B Biological Substances under § 46312. See C.F.R. § 173.134.
Category B infectious substances are defined as substances not generally capable of causing “lifethreatening or fatal disease in otherwise healthy humans or animals when exposure to it occurs.”
Id. As relevant here, prior to shipping a Category B infectious substance, it “must be packaged in
a triple packaging consisting of a primary receptable, a secondary packaging, and a rigid outer
packaging.” C.F.R. § 173.199(a)(1)–(3). The primary receptacles must be packed “in such a way
that, under normal conditions of transport, they cannot break, be punctured, or leak their contents
into the secondary packaging.” § 173.199(a)(2). Finally, the wording “Biological substances,
Category B” must be marked on the outer packaging, with UN337 in contrasting color.
§ 173.199(a)(5). Knowledge of the regulations is “not an element of an offense . . . but shall be
considered in mitigation.” 49 U.S.C. § 46312.
Rathburn does not dispute that the specimen he shipped overseas and back to the United
States was not packaged in accordance with the DOT regulations. Nor does he dispute that the
package failed to include the required Category B labeling.9 Instead, Rathburn contends that the
9
Though Rathburn argues that the infectious status has been neutralized at the time of
shipment, Mark Razny with DOT testified that a specimen maintains its designation as a Category
B substance until it is either cremated or autoclaved, neither of which Rathburn did prior to
shipment. In any event, whether the specimen was infectious at the time of shipment is
inconsequential to the relevant question under the DOT regulations of whether it was “known or
reasonably expected” to be an infectious substance. 49 C.F.R. § 173.134.
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donor summary provided by BRC indicated the cause of death as “Parkinson’s disease” and
“pelvic fracture.” But the government provided contrasting testimony from Stephen Gore, who
testified that the burial transit form that accompanied the specimen when it was sent from BRC,
indicated the donor’s cause of death as “bacterial sepsis and bacterial pneumonia.” Viewing this
conflicting evidence in favor of the government, a reasonable trier of fact could conclude that
Rathburn was aware of the donor’s cause of death when he shipped the specimen without proper
packaging or labeling. See United States v. Tilton, 714 F.2d 642, 645 (6th Cir. 1983) (“[A]n
appellate court must view all the evidence in the light most favorable to the government, resolve
all inferences which may reasonably be drawn from the evidence in the government’s favor and
resolve all conflicts in the testimony in the same way.”) (citation omitted). Therefore, Rathburn’s
sufficiency of the evidence challenge fails,
3. Confrontation Clause
Next, Rathburn asserts the district court denied him his right to confrontation by allowing
the government to introduce evidence to suggest that the specimens were likely infected, but failed
to permit him to cross-examine and present evidence to demonstrate that the specimens were not
actually infected.
We review de novo “[e]videntiary rulings relating to violations of the
Confrontation Clause.” United States v. Henderson, 626 F. 3d 326, 333 (6th Cir. 2010) (citation
omitted). The Confrontation Clause guarantees the right of an accused in a criminal prosecution
“to be confronted with the witnesses against him.” Delaware v. Van Arsdall, 475 U.S. 673, 678
(1986). The Confrontation Clause does not prohibit a trial judge from imposing reasonable limits
on cross-examination based on concerns about confusion of the issues. See id.
Rathburn asserts that the district court denied him his right of confrontation by permitting
the government to elicit testimony “that [IBI customers] would have rejected the human remains
. . . because they feared infection,” but refused to allow Rathburn to elicit cross-examination or
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present evidence to show the specimens were not infectious at the time of the courses. We disagree
with Rathburn.
The district court proscribed Rathburn from presenting evidence or cross-
examining witnesses about whether the specimens were infectious at the time of the courses,
reasoning that their infectiousness during the courses was irrelevant to whether Rathburn
intentionally defrauded customers and would unnecessarily confuse the jury.
We find the district court’s limitation reasonable for two reasons. First, the Confrontation
Clause “does not bar the use of testimonial statements for purposes other than establishing the truth
of the matter asserted.”
Crawford v. Washington, 541 U.S. 36, 59 (2004).
None of the
government’s witnesses testified that the specimens were infectious at that time of the courses.
Although the doctors called by the government did testify that they would have rejected specimens
that tested positive for an infectious disease out of general fear related to the spread of infection,
this demonstrated the reason the doctors prefer disease-free specimens. But why the doctors would
have rejected specimens known to have tested positive for infectious diseases goes to the
materiality of Rathburn’s misrepresentations—not to the truth of whether the specimens were
actually infectious at the time of the courses. Thus, Rathburn’s inability to cross-examine
witnesses about whether the specimens were infectious during the courses did not violate his right
to confrontation.
Second, as an element of wire fraud, the government charged that Rathburn intentionally
deprived IBI customers of money by misleading them into believing he would not knowingly
supply them specimens that tested positive for infectious diseases. Whether the specimens were
infectious at the time of the courses is insignificant to the relevant inquiry of whether Rathburn
obtained money by falsely representing that he would screen against certain infections. See United
States v. Phillips, 872 F.3d 803, 809 (6th Cir. 2017) (“District courts retain wide latitude insofar
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as the Confrontation Clause is concerned to impose reasonable limits on . . . interrogation that is
repetitive or only marginally relevant.”) (internal quotation marks omitted) (quoting Van Arsdall,
475 U.S. at 679). Importantly, Rathburn was permitted to present evidence and cross-examine
witnesses with respect to whether the specimens tested positive for the infectious diseases and
whether he was aware that they did. This was sufficient for him to defend against the elements of
wire fraud. See id. (“[The Confrontation Clause does not guarantee cross-examination that is
effective in whatever way, and to whatever extent, the defense might wish.”). The district court
did not err in limiting evidence and cross-examination related to whether the specimens were
infectious during the courses.
Next, Rathburn raises two separate, but related, challenges: (1) the district court admitted
inadmissible evidence by permitting witnesses to vary and add to the express terms of the contract,
in violation of Michigan state law; and (2) the district court improperly refused to give jury
instructions regarding contract interpretation under Michigan law.
Inadmissible Evidence. We afford the district court “broad discretion on evidentiary
rulings because this type of decision turns upon the evidence as developed during the course of a
trial.” United States v. Todd, 920 F.2d 399, 403 (6th Cir. 1990) (citation omitted). Rathburn
contends that, because the plain language of the Service Agreement provided only that the
specimens would be “screened” for certain infectious diseases, the district court was obligated to
invoke Michigan contract law to bar witness testimony regarding what they “believed the terms”
meant. Relying on Michigan law, Rathburn argues that the Service Agreement must be “enforced
as written,” and that “extrinsic evidence cannot be used to very (sic), add or contradict the express
terms of the contract.” Appellant’s Br. at 37 (citing Henderson v. State Farm Fire and Gas Co.,
460 Mich. 348, 354 (1999) and In Re Egbert R. Smith Trust, 480 Mich. 19, 24 (2008)).
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Rathburn is mistaken. The government charged Rathburn with wire fraud—not breach of
contract. The elements of wire fraud are separate and district from Michigan contract law. See
United States v. Perry, 537 F. App’x 347, 349 (5th Cir. 2013) (recognizing that common law
contract rules are inapplicable to the crime of wire fraud); see also Daniel, 329 F.3d at 486
(observing that “common law requirements of justifiable reliance and damages . . . have no place
in the federal fraud statutes”). Rathburn points to no authority to support his contention that
Michigan contract law should apply in this context.
Jury Instruction. Rathburn’s contention that the district court improperly refused to give
jury instructions regarding contract interpretation under Michigan law fails for the same reasons
above—Michigan contract law is irrelevant to the federal charge of wire fraud. As the district
court also noted, “[w]hile [Rathburn’s] preference would have been a civil suit charging breach of
contract” this was not the case before the jury.
4. Inadmissible Photographs
Lastly, Rathburn takes issue with several photographs presented to the jury of specimens
recovered by the FBI during its raid of Rathburn’s warehouse in December 2013 as well as
photographs depicting the unsanitary conditions of the warehouse. “Evidence may be excluded if
its probative value is substantially outweighed by the danger of unfair prejudice.” United States
v. Boyd, 640 F.3d 657, 667 (6th Cir. 2011) (citing Fed. R. Evid. 403). Moreover, “the admission
of relevant, potentially prejudicial evidence is placed within the sound discretion of the trial court.”
United States v. Brady, 595 F.2d 359, 361 (6th Cir. 1979).
Rathburn claims that the government’s “deliberate” and “repeated” use of inflammatory
photographs was “demonstrably prejudicial” and “therefore a new trial is mandated.” The first set
of photographs that Rathburn challenges depict: an open cooler with several human heads frozen
together; frozen blood at the bottom of a freezer unit and floor; a human head and torso in a semi- 16 -
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frozen state; dried blood in the bottom of a cooler; and a pile of dead flies on the floor. The
remaining photographs depict: a human head, a cooler lined with blood, packaging that dripped
with blood-like fluid, and the outer shipment packaging. The photographs were relevant to the
government’s charges of wire fraud, illegal transportation of hazardous material, and making
materially false statements; any prejudice to Rathburn was neither unfair, nor did it substantially
outweigh the probative value of the evidence.
With respect to the first set, as Rathburn acknowledges, in addition to charging that
Rathburn materially misled customers to believe he would not provide specimens that tested
positive for certain infectious diseases, the government charged Rathburn with intending to
defraud IBI customers into believing that the specimens were procured under “clean” conditions.
The government presented these photographs to demonstrate that Rathburn stored specimens fleshto-flesh, without any protective, sanitary barriers to prevent cross-contamination, and that his
representation that specimens were procured under “clean” conditions was fraudulent. Though
potentially unpleasant, Rathburn does not demonstrate that the probative value of these
photographs was substantially outweighed by unfair prejudice. United States v. Hardy, 228 F.3d
745, 750 (6th Cir. 2000). Indeed, we have recognized that probative “[e]vidence is not unfairly
prejudicial simply because it is gruesome or disturbing.” Boyd, 640 F.3d at 667–68; see also
United States v. Mellies, 329 F. App’x. 592, 600 (6th Cir. 2009) (observing that, although photos
of child pornography, “by its very nature, [are] inherently disturbing,” they were not unfairly
prejudicial because they were “essential to proving an element of the charged crime” (emphasis
removed)).
The next group of photographs that Rathburn challenges relate to his charges of illegal
transportation and making false statements. The government introduced photographs of the bloody
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packaging that Rathburn used to ship the specimen into the United States as evidence that Rathburn
failed to package the specimen according to the DOT regulations because liquid dripped
throughout the internal packaging. The photographs of the external packaging revealed neither
blood nor human specimens and were merely relevant to the government’s charge that Rathburn
failed to properly label the shipment as a Category B substance as required by DOT regulations.10
Again, Rathburn fails to establish that the probative value of these photographs was substantially
outweighed unfair prejudice to him.
The remaining photographs that Rathburn challenges relate to two charges of making
materially false statements to the FBI, of which he was acquitted. The government sought to
disprove two statements made by Rathburn: that the human heads he shipped from overseas were
embalmed, and that the fluid discovered in the bottom of the cooler and dripping from the
packaging was “Listerine,” and not blood. To disprove the first, the government introduced a
photograph showing that the human head that Rathburn claimed to have embalmed prior to
shipment was not in fact embalmed.11 As to Rathburn’s second statement, the government
introduced a photograph of the shipping package dripping in liquid to disprove Rathburn’s claim
that the fluid was Listerine instead of blood. These photographs were relevant to each charge
brought by the government. Rathburn was ultimately acquitted of making false statements. This
cuts against Rathburn’s claim: that he was acquitted of these charges tends to illustrate that the
photographs introduced by the government to establish his guilt were not unfairly prejudicial. See
Rathburn contends that the photographs “were so prejudicial that one juror [indicated] he
was in need of counseling.” Two reasons demonstrate why this does not amount to prejudice.
First, this was limited to a single juror and that juror was made an alternate. Second, that the
photographs were disturbing does not, alone, rise to the level of prejudice. Boyd, 640 F.3d at 667–
68.
10
11
The government introduced two photographs of the same human head to show that it
decayed over time—evidence that it was not embalmed.
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United States v. Johnson, 726 F. App’x 393, 401–02 (6th Cir. 2018) (holding that a defendant
failed to demonstrate prejudice in large part because he was acquitted of the charges where the
jury would have been most likely to be prejudiced). Rathburn’s evidentiary challenge fails.
III.
CONCLUSION
For these reasons, we affirm Rathburn’s convictions.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.