Petition for Writ of Certiorari — Gregory Hearns, Petitioner v. United States

APPENDIX

INDEX TO APPENDICES

Appendix A: U.S. Court of Appeals Ninth Circuit Opinion Affirming Conviction

and Sentence (February 5, 2025) ................................................... App-1

Appendix B: U.S. District Court Amended Judgment and Commitment Order

(October 18, 2023) ........................................................................... App-6

Appendix C: U.S. District Court Order Denying Motion for New Trial (July 12,

2022)............................................................................................... App-12

Case: 23-2678, 02/05/2025, DktEntry: 50.1, Page 1 of 5

FILED

NOT FOR PUBLICATION

FEB 5 2025

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

No. 23-2678

D.C. No.

2:15-cr-00474-PSG-10

Plaintiff - Appellee,

v.

MEMORANDUM*

GREGORY HEARNS,

Defendant - Appellant.

Appeal from the United States District Court

for the Central District of California

Philip S. Gutierrez, District Judge, Presiding

Submitted February 3, 2025**

Pasadena, California

Before: WARDLAW, CALLAHAN, and HURWITZ, Circuit Judges.

Gregory Hearns appeals his conviction and sentence for one count of health

care fraud in violation of 18 U.S.C. § 1347. We have jurisdiction under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742, and we affirm.

1.

Hearns argues that the district court erred in responding to a jury note

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

**

Appendix A

App-1

Case: 23-2678, 02/05/2025, DktEntry: 50.1, Page 2 of 5

by failing to correct the jury’s purported misunderstanding about whether billing

certifications for the allegedly false claims for payment charged in the indictment

had been admitted into evidence. We review for abuse of discretion both the

district court’s response to the jury note, see Arizona v. Johnson, 351 F.3d 988, 993

(9th Cir. 2003), and the district court’s denial of Hearns’s motion for a new trial

based on that response, see United States v. Kellington, 217 F.3d 1084, 1094-95

(9th Cir. 2000).

Hearns has not shown that the district court abused its discretion. “While it

is certainly true that the district court should assist the jury in clarifying matters

within the judge’s province, that responsibility is limited to answering legal, not

factual questions.” United States v. Evanston, 651 F.3d 1080, 1086 (9th Cir. 2011)

(citing Johnson, 351 F.3d at 994). Accordingly, we have “cautioned” district

courts to “proceed circumspectly in responding to inquiries from the jury” because

“the jury may not enlist the court as its partner in the fact-finding process.” Id. at

1087 (cleaned up). Here, the district court reasonably concluded that commenting

on the evidence as Hearns proposed could have invaded the jury’s province as factfinder. The parties in their closing arguments had already accurately described the

admitted billing certifications as “examples” and argued about the inferences the

jury should draw from those examples, and the district court was therefore

concerned that it might be misinterpreting the jury’s note.

2

Appendix A

App-2

23-2678

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To the extent Hearns argues that the jury’s split verdict supports his claim,

his argument fails, because “apparently inconsistent verdicts” cannot “serve as a

basis for setting aside a jury’s verdict.” United States v. Johnson, 804 F.2d 1078,

1080 (9th Cir. 1986); see generally United States v. Powell, 469 U.S. 57 (1984);

see also United States v. Christensen, 828 F.3d 763, 794-95 (9th Cir. 2015)

(rejecting argument of instructional error that “in substance . . . [was] less a

complaint about an error in the instructions than it [was] about a potentially

inconsistent verdict”).

2.

Hearns contends for the first time on appeal that the jury likely

convicted him based on an invalid theory of fraud. Specifically, Hearns asserts

that the government had argued that Hearns committed fraud by participating in a

scheme to submit claims for payment for counselling sessions that either: (1) never

occurred or (2) did not comply with certain regulations. And Hearns contends that

a theory of liability based on the submission of counseling sessions that did not

comply with certain regulations was an invalid theory of fraud. We find no error,

let alone plain error. See United States v. Brown, 771 F.3d 1149, 1156 (9th Cir.

2014). As Hearns acknowledges, each of the counts in the indictment—including

Count 15, of which he was convicted—was based on a claim for payment for a

counseling session that never occurred.

3.

Viewing the evidence in the light most favorable to the government,

3

Appendix A

App-3

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see United States v. Nevils, 598 F.3d 1158, 1161 (2010) (en banc), sufficient

evidence supports Hearns’s conviction. For example, Hearns’s colleague in the

billing department testified that counselors’ logs included purported counseling

sessions on days that schools would not be open and that Hearns “knew firsthand”

of these problems. The government also presented evidence that Hearns submitted

approximately half of the organization’s claims and generally certified the claims,

including claims for purported counseling sessions at the relevant school and at the

relevant time. Further, the evidence shows that Hearns was present at meetings

when counselors raised concerns that they could not bill for more sessions

consistent with the regulatory requirements and that Hearns pressured counselors

to increase their billing in ways that suggested that they should violate the

regulatory requirements.

4.

Hearns argues that the district court failed to provide an adequate

explanation for its sentence when it varied upward from the Guidelines range of 06 months. “[A]bsent objection at sentencing, we review for plain error a claim that

the district court procedurally erred by failing to adequately explain its sentence.”

United States v. Sandoval-Orellana, 714 F.3d 1174, 1181 (9th Cir. 2013).

The district court did not plainly err. Viewed in light of the entire record,

the court’s comments indicate that it believed that a sentence of 12 months and 1

day reflected Hearns’s culpability in comparison to other defendants who

4

Appendix A

App-4

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participated in the fraudulent billing scheme and that a shorter sentence would

have resulted in disparities. See 18 U.S.C. § 3553(a)(6). The district court also

noted that, unlike other defendants, Hearns refused to accept responsibility for his

conduct.

AFFIRMED.

5

Appendix A

App-5

23-2678

Case 2:15-cr-00474-PSG Document AMENDED

1260 Filed 10/18/23 Page 1 of 6 Page ID #:10280

United States District Court

Central District of California

JS-3

UNITED STATES OF AMERICA vs.

Docket No.

Defendant

Social Security No. 5

Gregory Hearns

2:15-cr-00474-PSG-10

9

7

0

(Last 4 digits)

akas:

JUDGMENT AND PROBATION/COMMITMENT ORDER

In the presence of the attorney for the government, the defendant appeared in person on this date.

COUNSEL

MONTH

DAY

YEAR

09

29

23

Peter Johnson, CJA

(Name of Counsel)

PLEA

X GUILTY, and the court being satisfied that there is a factual basis for the plea.

NOLO

CONTENDERE

NOT

GUILTY

FINDING

There being a finding/verdict of GUILTY, defendant has been convicted as charged of the offense(s) of:

18:1347, 2(b): Health Care Fraud; Causing an Act to be Done (15) of the First Superseding Indictment.

JUDGMENT

AND PROB/

COMM

ORDER

The Court asked whether there was any reason why judgment should not be pronounced. Because no sufficient cause to the

contrary was shown, or appeared to the Court, the Court adjudged the defendant guilty as charged and convicted and ordered

that: Pursuant to the Sentencing Reform Act of 1984, it is the judgment of the Court that the defendant is hereby

committed to the custody of the Bureau of Prisons to be imprisoned for a term of twelve (12) months and one (1) day.

Upon release from imprisonment, the defendant shall be placed on supervised release for a term of 1 year under the following terms and

conditions:

1.

The defendant shall comply with the rules and regulations of the United States Probation & Pretrial Services Office and

Second Amended General Order 20-04.

2.

During the period of community supervision, the defendant shall pay the special assessment and restitution in accordance

with this judgment's orders pertaining to such payment.

3.

The defendant shall cooperate in the collection of a DNA sample from the defendant.

4.

The defendant shall apply all monies received from income tax refunds, lottery winnings, inheritance, judgments and any

other financial gains to the Court-ordered financial obligation.

5.

The defendant shall not engage, as whole or partial owner, employee or otherwise, in any business involving Medi-Cal,

Medicare, Medicaid, or any Federal health care programs, without the express written approval of the Probation Officer prior

to engaging in such employment. Further, the defendant shall provide the Probation Officer with access to any and all

business records, client lists, and other records pertaining to the operation of any business owned, in whole or in part, by the

defendant, as directed by the Probation Officer.

6.

The defendant shall not obtain or possess any driver's license, Social Security number, birth certificate, passport or any other

form of identification in any name, other than the defendant's true legal name, nor shall the defendant use, any name other

than her true legal name without the prior written approval of the Probation Officer.

7.

The defendant shall not be employed in any position that requires licensing or certification by any local, state, or federal

agency without the prior written approval of the Probation Officer.

The defendant shall submit the defendant's person, property, house, residence, vehicle, papers, computers, cell phones, other

electronic communications or data storage devices or media, email accounts, social media accounts, cloud storage accounts,

or other areas under the defendant’s control, to a search conducted by a United States Probation Officer or law enforcement

officer. Failure to submit to a search may be grounds for revocation. The defendant shall warn any other occupants that the

8.

CR-104 (docx 12/20)

JUDGMENT & PROBATION/COMMITMENT ORDER

Appendix B

App-6

Page 1 of 6

Case 2:15-cr-00474-PSG Document 1260 Filed 10/18/23 Page 2 of 6 Page ID #:10281

USA vs.

Gregory Hearns

Docket No.:

CR 15-00474-PSG-10

premises may be subject to searches pursuant to this condition. Any search pursuant to this condition will be conducted at a

reasonable time and in a reasonable manner upon reasonable suspicion that the defendant has violated a condition of his

supervision and that the areas to be searched contain evidence of this violation

It is ordered that the defendant shall pay to the United States a special assessment of $100, which is due immediately. Any unpaid balance shall

be due during the period of imprisonment, at the rate of not less than $25 per quarter, and pursuant to the Bureau of Prisons' Inmate Financial

Responsibility Program.

It is ordered that the defendant shall pay restitution in the total amount of $69.59 pursuant to 18 U.S.C. § 3663A.

Restitution shall be due during the period of imprisonment, at the rate of not less than $25 per quarter, and pursuant to the Bureau of Prisons’

Inmate Financial Responsibility Program. If any amount of the restitution remains unpaid after release from custody, nominal monthly

payments of at least 10% of defendant's gross monthly income but not less than $50, whichever is greater, shall be made during the period of

supervised release and shall begin 90 days after the commencement of supervision. Nominal restitution payments are ordered as the Court finds

that the defendant's economic circumstances do not allow for either immediate or future payment of the amount ordered.

Pursuant to 18 U.S.C. § 3612(f)(3)(A), interest on the restitution ordered is waived because the defendant does not have the ability to pay

interest. Payments may be subject to penalties for default and delinquency pursuant to 18 U.S.C. § 3612(g).

The defendant shall be held jointly and severally liable with the below-listed convicted co-participants in the offense conduct (which list

includes the defendant) for the amount of restitution ordered in this judgment:

• Cindy Leticia Ortiz (Case No. CR 13-00485-PSG);

• Margarita Lopez (Case No. CR 13-00487-PSG);

• Tamara Diaz (Case No. CR 13-00490-PSG);

• Laura Vasquez (Case No. CR 13-00536-PSG);

• Irma Talavera (Case No. CR 13-00581-PSG);

• Cathy Fernandez (Case No. CR 13-00582-PSG);

• Leland Whitson (Case No. CR 14-00204-PSG);

• Elizabeth Black (Case No. CR 14-00371-PSG);

• Helsa Casillas (Case No. CR 14-00428-PSG);

• Sandra Lopez (Case No. CR 14-00699-PSG);

• Lori Renee Miller (Case No. CR 15-00474-PSG-1);

• Nguyet Galaz (Case No. CR 15-00474-PSG-2);

• Angela Frances Micklo (Case No. CR 15-00474-PSG-3);

• Maribel Navarro (Case No. CR 15-00474-PSG-4);

• LaLonnie Egans (Case No. CR 15-00474(A)-PSG-6);

• Tina Lynn St. Julian (Case No. CR 15-00474(A)-PSG-7);

• Shyrie Womack (Case No. CR 15-00474-PSG-8);

• Richard Mark Ciampa (Case No. CR 15-00474(A)-PSG-9); and

• Gregory Hearns (Case No. CR 15-00474(A)-PSG-10).

The victim’s recovery is limited to the amount of its loss, and the defendant’s liability for restitution ceases if and when the victim receives full

restitution as to the defendant, or when the victim is made whole, whichever is earlier.

Restitution shall be paid to Medi-Cal. The Medi-Cal payee is the Health Care Deposit Fund at the following address:

Health Care Deposit Fund

California Department of Justice

Division of Medi-Cal Fraud & Elder Abuse

303 North Glenoaks Boulevard

Suite 900

Burbank, CA 91502-1148.

CR-104 (docx 12/20)

JUDGMENT & PROBATION/COMMITMENT ORDER

Appendix B

App-7

Page 2 of 6

Case 2:15-cr-00474-PSG Document 1260 Filed 10/18/23 Page 3 of 6 Page ID #:10282

USA vs.

Gregory Hearns

Docket No.:

CR 15-00474-PSG-10

Pursuant to Guideline Section 5E1.2(a), all fines are waived as the Court finds that the defendant has established that he is unable to pay and is

not likely to become able to pay any fine.

Defendant informed of his right to appeal.

The Court recommends the defendant be placed in a Bureau of Prisons facility located in Southern California.

It is further ordered that the defendant surrender himself to the institution designated by the Bureau of Prisons by noon on January 19, 2024. In

the absence of such designation, the defendant shall report on or before the same date and time, to the United States Marshal located at the U.S.

Courthouse, located at 350 W. First Street, Suite 3001, Los Angeles, CA 90012. The bond will be exonerated upon surrender.

In addition to the special conditions of supervision imposed above, it is hereby ordered that the Standard Conditions of Probation and

Supervised Release within this judgment be imposed. The Court may change the conditions of supervision, reduce or extend the period of

supervision, and at any time during the supervision period or within the maximum period permitted by law, may issue a warrant and revoke

supervision for a violation occurring during the supervision period.

October 18, 2023

Date

U. S. District Judge

It is ordered that the Clerk deliver a copy of this Judgment and Probation/Commitment Order to the U.S. Marshal or other qualified officer.

Clerk, U.S. District Court

October 18, 2023

Filed Date

By

Deputy Clerk

The defendant must comply with the standard conditions that have been adopted by this court (set forth below).

STANDARD CONDITIONS OF PROBATION AND SUPERVISED RELEASE

While the defendant is on probation or supervised release pursuant to this judgment:

CR-104 (docx 12/20)

JUDGMENT & PROBATION/COMMITMENT ORDER

Appendix B

App-8

Page 3 of 6

Case 2:15-cr-00474-PSG Document 1260 Filed 10/18/23 Page 4 of 6 Page ID #:10283

USA vs.

1.

2.

3.

4.

5.

6.

7.

8.

Gregory Hearns

Docket No.:

The defendant must not commit another federal, state, or local crime;

The defendant must report to the probation office in the federal

judicial district of residence within 72 hours of imposition of a

sentence of probation or release from imprisonment, unless

otherwise directed by the probation officer;

The defendant must report to the probation office as instructed by the

court or probation officer;

The defendant must not knowingly leave the judicial district without

first receiving the permission of the court or probation officer;

The defendant must answer truthfully the inquiries of the probation

officer, unless legitimately asserting his or her Fifth Amendment

right against self-incrimination as to new criminal conduct;

The defendant must reside at a location approved by the probation

officer and must notify the probation officer at least 10 days before

any anticipated change or within 72 hours of an unanticipated change

in residence or persons living in defendant’s residence;

The defendant must permit the probation officer to contact him or her

at any time at home or elsewhere and must permit confiscation of

any contraband prohibited by law or the terms of supervision and

observed in plain view by the probation officer;

The defendant must work at a lawful occupation unless excused by

the probation officer for schooling, training, or other acceptable

reasons and must notify the probation officer at least ten days before

any change in employment or within 72 hours of an unanticipated

change;

CR-104 (docx 12/20)

9.

10.

11.

12.

13.

14.

CR 15-00474-PSG-10

The defendant must not knowingly associate with any persons

engaged in criminal activity and must not knowingly associate with

any person convicted of a felony unless granted permission to do so

by the probation officer. This condition will not apply to intimate

family members, unless the court has completed an individualized

review and has determined that the restriction is necessary for

protection of the community or rehabilitation;

The defendant must refrain from excessive use of alcohol and must

not purchase, possess, use, distribute, or administer any narcotic or

other controlled substance, or any paraphernalia related to such

substances, except as prescribed by a physician;

The defendant must notify the probation officer within 72 hours of

being arrested or questioned by a law enforcement officer;

For felony cases, the defendant must not possess a firearm,

ammunition, destructive device, or any other dangerous weapon;

The defendant must not act or enter into any agreement with a law

enforcement agency to act as an informant or source without the

permission of the court;

The defendant must follow the instructions of the probation officer

to implement the orders of the court, afford adequate deterrence from

criminal conduct, protect the public from further crimes of the

defendant; and provide the defendant with needed educational or

vocational training, medical care, or other correctional treatment in

the most effective manner.

JUDGMENT & PROBATION/COMMITMENT ORDER

Appendix B

App-9

Page 4 of 6

Case 2:15-cr-00474-PSG Document 1260 Filed 10/18/23 Page 5 of 6 Page ID #:10284

USA vs.

Gregory Hearns

Docket No.:

CR 15-00474-PSG-10

The defendant must also comply with the following special conditions (set forth below).

STATUTORY PROVISIONS PERTAINING TO PAYMENT AND COLLECTION OF FINANCIAL SANCTIONS

The defendant must pay interest on a fine or restitution of more than $2,500, unless the court waives interest or unless the fine or

restitution is paid in full before the fifteenth (15th) day after the date of the judgment under 18 U.S.C. § 3612(f)(1). Payments may be subject

to penalties for default and delinquency under 18 U.S.C. § 3612(g). Interest and penalties pertaining to restitution, however, are not applicable

for offenses completed before April 24, 1996. Assessments, restitution, fines, penalties, and costs must be paid by certified check or money

order made payable to “Clerk, U.S. District Court.” Each certified check or money order must include the case name and number. Payments

must be delivered to:

United States District Court, Central District of California

Attn: Fiscal Department

255 East Temple Street, Room 1178

Los Angeles, CA 90012

or such other address as the Court may in future direct.

If all or any portion of a fine or restitution ordered remains unpaid after the termination of supervision, the defendant must pay the

balance as directed by the United States Attorney’s Office. 18 U.S.C. § 3613.

The defendant must notify the United States Attorney within thirty (30) days of any change in the defendant’s mailing address or

residence address until all fines, restitution, costs, and special assessments are paid in full. 18 U.S.C. § 3612(b)(l)(F).

The defendant must notify the Court (through the Probation Office) and the United States Attorney of any material change in the

defendant’s economic circumstances that might affect the defendant’s ability to pay a fine or restitution, as required by 18 U.S.C. § 3664(k).

The Court may also accept such notification from the government or the victim, and may, on its own motion or that of a party or the victim,

adjust the manner of payment of a fine or restitution under 18 U.S.C. § 3664(k). See also 18 U.S.C. § 3572(d)(3) and for probation 18 U.S.C.

§ 3563(a)(7).

Payments will be applied in the following order:

1. Special assessments under 18 U.S.C. § 3013;

2. Restitution, in this sequence (under 18 U.S.C. § 3664(i), all nonfederal victims must be paid before the United

States is paid):

Non-federal victims (individual and corporate),

Providers of compensation to non-federal victims,

The United States as victim;

3. Fine;

4. Community restitution, under 18 U.S.C. § 3663(c); and

5. Other penalties and costs.

CONDITIONS OF PROBATION AND SUPERVISED RELEASE PERTAINING TO FINANCIAL SANCTIONS

As directed by the Probation Officer, the defendant must provide to theProbation Officer: (1) a signed release authorizing credit

report inquiries; (2) federal and state income tax returns or a signed release authorizing their disclosure and (3) an accurate financial statement,

with supporting documentation as to all assets, income and expenses of the defendant. In addition, the defendant must not apply for any loan

or open any line of credit without prior approval of the Probation Officer.

When supervision begins, and at any time thereafter upon request of the Probation Officer, the defendant must produce to the

Probation and Pretrial Services Office records of all bank or investments accounts to which the defendant has access, including any business

or trust accounts. Thereafter, for the term of supervision, the defendant must notify and receive approval of the Probation Office in advance

of opening a new account or modifying or closing an existing one, including adding or deleting signatories; changing the account number or

name, address, or other identifying information affiliated with the account; or any other modification. If the Probation Office approves the

new account, modification or closing, the defendant must give the Probation Officer all related account records within 10 days of opening,

modifying or closing the account. The defendant must not direct or ask anyone else to open or maintain any account on the defendant’s

behalf.

The defendant must not transfer, sell, give away, or otherwise convey any asset with a fair market value in excess of $500 without

approval of the Probation Officer until all financial obligations imposed by the Court have been satisfied in full.

These conditions are in addition to any other conditions imposed by this judgment.

CR-104 (docx 12/20)

JUDGMENT & PROBATION/COMMITMENT ORDER

Appendix B

App-10

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USA vs.

Gregory Hearns

Docket No.:

CR 15-00474-PSG-10

RETURN

I have executed the within Judgment and Commitment as follows:

Defendant delivered on

to

Defendant noted on appeal on

Defendant released on

Mandate issued on

Defendant’s appeal determined on

Defendant delivered on

to

at

the institution designated by the Bureau of Prisons, with a certified copy of the within Judgment and Commitment.

United States Marshal

By

Date

Deputy Marshal

CERTIFICATE

I hereby attest and certify this date that the foregoing document is a full, true and correct copy of the original on file in my office, and in my

legal custody.

Clerk, U.S. District Court

By

Filed Date

Deputy Clerk

FOR U.S. PROBATION OFFICE USE ONLY

Upon a finding of violation of probation or supervised release, I understand that the court may (1) revoke supervision, (2) extend the term of

supervision, and/or (3) modify the conditions of supervision.

These conditions have been read to me. I fully understand the conditions and have been provided a copy of them.

(Signed)

CR-104 (docx 12/20)

Defendant

Date

U. S. Probation Officer/Designated Witness

Date

JUDGMENT & PROBATION/COMMITMENT ORDER

Appendix B

App-11

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Case 2:15-cr-00474-PSG Document 1059 Filed 07/12/22 Page 1 of 13 Page ID #:6799

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CRIMINAL MINUTES - GENERAL

Case No.

#1025(7/15

CR 15-474-PSG-10

Date July 12, 2022

Present:

The Honorable Philip S. Gutierrez, United States District Judge

Interpreter

n/a

Wendy Hernandez

Deputy Clerk

U.S.A. v. Defendant(s):

Gregory Hearns

Not Reported

Court Reporter/Recorder

Present Cust. Bond

not

Not Present

Assistant U.S. Attorney

Attorney(s) for

Defendant(s):

Peter Johnson

Present App. Ret.

not

Proceedings: (In Chambers) Order DENYING Defendant’s motion for a judgment

of acquittal or, in the alternative, for a new trial.

Before the Court is a motion for judgment of acquittal or, in the alternative, for a new

trial filed by Defendant Gregory Hearns (“Defendant”). See generally Dkt. # 1025 (“Mot.”).

The Government opposed. See generally Dkt. # 1034 (“Opp.”). Defendant replied. See

generally Dkt. # 1044 (“Reply”). The Court finds this matter appropriate for decision without

oral argument. After considering the moving, opposing, and reply papers, the Court DENIES

Defendant’s motion.

I.

Background

In 2016, Defendant and co-defendants Lalonnie Egans (“Egans”), Tina Lynn St. Julian

(“St. Julian”), and Richard Mark Ciampa (“Ciampa”)1 were indicted on multiple counts of

health care fraud in violation of 18 U.S.C. § 1347, among other charges. See generally First

Superseding Indictment, Dkt. # 188 (“FSI”). They each formerly worked at Atlantic Recovery

Services (“ARS”), a private provider of alcohol and drug abuse treatment services that operated

at various high schools and middle schools in Los Angeles County. Id. ¶¶ 1, 3–5. Defendant

Ciampa pled guilty to one count of health care fraud and was sentenced in September 2021.

See generally CR 15-474-PSG-9, Dkts. # 693, 795.

1

CR-11 (10/08)

CRIMINAL MINUTES - GENERAL

Appendix C

App-12

Page 1 of 13

Case 2:15-cr-00474-PSG Document 1059 Filed 07/12/22 Page 2 of 13 Page ID #:6800

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CRIMINAL MINUTES - GENERAL

was ARS’ billing supervisor. Id. ¶ 3. Egans initially worked as a substance abuse recovery

counselor, including at the Soledad Enrichment Action (“SEA”) Manchester site, and then

became a manager. Id. ¶ 4. St. Julian was also a substance abuse recovery counselor. Id. ¶ 5.

The First Superseding Indictment alleged that Defendant, Egans, St. Julian, and others at

ARS participated in a scheme to defraud Medi-Cal by falsifying documents and submitting

fraudulent claims to the Drug Medi-Cal program for counseling sessions that did not occur,

were medically unnecessary, or did not comply with Drug Medi-Cal requirements. See id. ¶¶

23–27. Count 15 charged Hearns, Egans, and Ciampa with health care fraud based on an

“[i]ndividual counseling session purportedly conducted by [Egans] on April 6, 2012” with

student J.M. at SEA Manchester. Id. ¶ 27.

A joint trial against Defendant, Egans, and St. Julian commenced on April 14, 2022.2

See generally Dkt. # 976. During trial, the Government proferred Exhibits 15 and 16 as

examples of claim certifications submitted by Defendant along with ARS’ Drug Medi-Cal

billing. See Mot. 3:20–4:5; Opp. 4:14–17; see generally Mot. Ex. A (“Ex. 15”), Ex. B (“Ex.

16”). Through these documents, Defendant certified that the information submitted was “true,

accurate[,] and complete,” that the services billed for were medically necessary, and that he

understood “that any falsification . . . may be prosecuted.” See Ex. 15 at 4, 9; Ex. 16 at 4, 12.

The parties agree that Exhibits 15 and 16 were not tied to any specific count against Defendant.

See Mot. 3:22–4:2; Opp. 4:21–23.

On April 28, the Government elicited testimony from Special Agent Jeffrey Sartoph

(“Agent Sartoph”). The Government proffered audio recordings of statements by St. Julian and

asked Agent Sartoph about his understanding of certain statements. Defendant’s counsel

objected, moved to strike the testimony about Agent Sartoph’s understanding of St. Julian’s

statements, and moved for a mistrial. The Court denied the motion for a mistrial but granted

the motion to strike the references to Agent Sartoph’s understanding of St. Julian’s statements.

After the Government rested, Defendant’s counsel moved for a judgment of acquittal on all

counts, which the Court denied. See generally Dkt. # 991. On May 4, the parties presented

closing arguments and the Court instructed the jury. See generally Dkt. # 995; Jury

Instructions, Dkt. # 1000.

On May 5, the Court received Jury Note No. 1, requesting the following:

Before trial, one of the counts of health care fraud against Defendant (Count 10) and the

counts alleging identity theft in violation of 18 U.S.C. § 1028A against all defendants (Counts

20 through 23) were dismissed. See generally Dkts. # 805, 839. During trial, another count of

health care fraud against Defendant (Count 14) was dismissed.

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Any additional signed attestations for the counts listed. We have

attestations for counts 9, 11, [and] 15. Is [sic] there any other documents

that we can look at? Are there additional signed billing attestations by

Mr[.] Hearns for counts 7, 8, 12, 13, 16, 17, 18, [and] 19[?]

See generally Dkt. # 1005.3 The Court then conferred with counsel about its proposed response

to the jury note: “You have all of the documents which have been admitted into evidence. The

Court cannot provide you with any additional documents or exhibits.” The Government agreed

with the Court’s proposed response. Defendant’s counsel said that the proposed response

sounded right but asked that the Court also inform the jury that they did not have attestations

for Counts 9, 11, and 15 or to clarify what the jury meant by “attestations.” The Government

represented that it did not think such a response would be appropriate because the Court cannot

provide additional documents or an explanation of the documents before the jury. The Court

declined to provide the response suggested by Defendant’s counsel to avoid invading the jury’s

deliberations. Instead, the Court provided its proposed response. See generally Dkt. # 1003.

On May 9, the jury entered a verdict of “guilty” as to Count 15 and “not guilty” as to

Counts 7–9, 11–13, and 16–19 against Defendant. See generally Dkts. # 1014, 1018. The jury

entered a verdict of “guilty” on all counts against Egans and St. Julian, including Count 15

against Egans. See generally Dkt. # 1014. Defendant then filed the instant motion for a

judgment of acquittal or a new trial as to Count 15. See generally Mot.

II.

Legal Standards

A.

Motion for a Judgment of Acquittal

Under Federal Rule of Criminal Procedure 29, on the defendant’s motion, the court

“must enter a judgment of acquittal of any offense for which the evidence is insufficient to

sustain a conviction.” See Fed. R. Crim. P. 29(a). In determining whether there is sufficient

evidence to sustain a conviction, the court should “view[] the evidence in the light most

favorable to the prosecution” and ask whether “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” United States v. MagallonJimenez, 219 F.3d 1109, 1112 (9th Cir. 2000) (citations omitted). Although the court must

construe all evidence in favor of the government, “evidence is insufficient to support a verdict

where mere speculation, rather than reasonable inference, supports the government’s case[.]”

See United States v. Nevils, 598 F.3d 1158, 1167 (9th Cir. 2010) (en banc) (citing Juan H. v.

The Government states that the parties understood the “attestations” mentioned by the jury to

refer to the example certifications in Exhibits 15 and 16. Opp. 5:18–20.

3

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Allen, 408 F.3d 1262, 1277–79 (9th Cir. 2005)). The court’s role in a Rule 29 analysis is to

“protect[] against rare occasions in which ‘a properly instructed jury may . . . convict even

when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt[.]’”

Id. at 1164 (quoting Jackson v. Virginia, 443 U.S. 307, 317 (1979)).

B.

Motion for a New Trial

Under Federal Rule of Criminal Procedure 33, a new trial may be granted upon a

defendant’s motion when “the interest of justice so requires.” See Fed. R. Crim. P. 33(a). For

example, a new trial is warranted where the evidence weighs so heavily against the verdict that

a serious miscarriage of justice may have occurred. See United States v. Alston, 974 F.2d 1206,

1211–12 (9th Cir. 1992). “A district court’s power to grant a motion for a new trial is much

broader than its power to grant a motion for judgment of acquittal.” United States v.

Kellington, 217 F.3d 1084, 1097 (9th Cir. 2000) (quoting Alston, 974 F.2d at 1211). The court

need not view the evidence in the light most favorable to the prosecution, and “it is free to

weigh the evidence and evaluate for itself the credibility of the witnesses.” Id. The decision

whether to grant a motion for a new trial lies “within the sound discretion of the district court.”

Id. (quoting United States v. Steel, 759 F.2d 706, 713 (9th Cir. 1985)). However, “a new trial

may be granted ‘only in exceptional cases in which the evidence preponderates heavily against

the verdict.’” United States v. Wallace, No. CR–13–00264 SJO–3, 2015 WL 13387855, at *4

(C.D. Cal. Dec. 2, 2015) (quoting United States v. Rush, 749 F.2d 1369, 1371 (9th Cir. 1984)).

III.

Discussion

The Court addresses in turn Defendant’s requests for (A) a judgment of acquittal and (B)

a new trial.

A.

Motion for Judgment of Acquittal

Defendant challenges the sufficiency of the evidence supporting his conviction on Count

15 for health care fraud in violation of 18 U.S.C. § 1347. See generally Mot.

Section 1347(a) “provides that one commits health care fraud when he:

knowingly and willfully executes, or attempts to execute, a scheme or

artifice-(1) to defraud any health care benefit program; or

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(2) to obtain, by means of false or fraudulent pretenses, representations,

or promises, any of the money . . . owned by . . . any health care benefit

program,

in connection with the delivery of or payment for health care benefits,

items, or services.

United States v. Dearing, 504 F.3d 897, 901 (9th Cir. 2007) (quoting 18 U.S.C. § 1347).

To sustain Defendant’s conviction, the Government must have proven beyond a reasonable

doubt that (1) Defendant knowingly and willfully executed or attempted to execute a scheme or

plan to (a) defraud a health care benefit program and/or (b) obtain money or property from a

health care benefit program by means of material false or fraudulent pretenses or

representations; (2) Defendant acted with the intent to defraud; (3) Medi-Cal was a health care

benefit program; and (4) the scheme or plan was executed in connection with the delivery of or

payment for health care benefits, items, or services. See Ninth Circuit Model Criminal Jury

Instructions No. 15.42; Jury Instructions, No. 22.

Defendant does not dispute that Medi-Cal was a health care benefit program or that the

scheme was executed in connection with the delivery of or payment for health care services.

See generally Mot. Instead, Defendant challenges the sufficiency of the evidence that he

knowingly and willfully committed health care fraud and acted with the intent to defraud. See

id. 1:10–14, 7:2–10:28. Defendant argues that the Government’s case against him as to Count

15 “is based on pure speculation,” which was “strategically encouraged by” the Government’s

(1) failure to affirmatively correct the jury’s alleged misunderstanding about Exhibits 15 and

16 and (2) solicitation of Agent Sartoph’s testimony about St. Julian’s statements. Id. 8:1–10.

According to Defendant, without such speculation, the evidence of his intent as to Count 15 is

“wholly insufficient” and no different from the remaining counts on which he was acquitted.

Id. 8:10–10:28.

The Court addresses in turn (i) the information requested in and response to Jury Note

No. 1, (ii) Agent Sartoph’s testimony, (iii) the evidence supporting Defendant’s conviction on

Count 15, and (iv) the differences between Count 15 and the other counts.

i.

Jury Note No. 1

Defendant first challenges the Court’s response to Jury Note No. 1. Mot. 8:1–10:28.

Through Jury Note No. 1, the jury requested the following information:

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Any additional signed attestations for the counts listed. We have

attestations for Counts 9, 11, [and] 15. Is [sic] there any other

documents that we can look at? Are there additional signed billing

attestations by Mr[.] Hearns for Counts 7, 8, 12, 13, 16, 17, 18, [and]

19[?]

See Dkt. # 1005. After conferring with counsel, the Court provided the following response:

“You have all of the documents which have been admitted into evidence. The Court cannot

provide you with any additional documents or exhibits.” See Dkt. # 1003.

Defendant contends that Jury Note No. 1 shows that the jury understood Exhibits 15 and

16 to be certifications specific to Counts 9, 11, and 15 rather than examples; that the Court and

Government improperly failed to correct this alleged misunderstanding; and that absent such a

misunderstanding, his conviction could only have been based on speculation. See Mot.

5:13–6:10, 8:1–10:25. The Government counters that it never suggested that Exhibits 15 and

16 were tied to any specific count and that the Court’s response to Jury Note No. 1 was

accurate and properly avoided invading the jury’s deliberations. Opp. 18:27–19:4,

21:11–23:26. The Court agrees with the Government.

When responding to questions from the jury, “the trial court ‘should clear [the jury’s

difficulties] away with concrete accuracy’” and has broad discretion as to how to fulfill this

obligation. Arizona v. Johnson, 351 F.3d 988, 994 (9th Cir. 2003) (quoting Bollenbach v.

United States, 326 U.S. 607, 612–13 (1946)). While the “court ‘must respond to questions

concerning important legal issues,’ it ‘must be careful not to invade the jury’s province as factfinder.’” Id. (quoting United States v. Nunez, 889 F.2d 1564, 1569 (6th Cir. 1989)); accord

United States v. Evanston, 651 F.3d 1080, 1086 (9th Cir. 2011) (“[T]he district court should

assist the jury in clarifying matters within the judge’s province, [but] that responsibility is

limited to answering legal, not factual questions.”).

Here, the jury did not ask whether Exhibits 15 and 16 were attestations specific to

Counts 9, 11, or 15 but rather whether there were additional documents or attestations it could

consider. See Dkt. # 1005. The Court responded “with concrete accuracy” that it could not

provide the jury with any additional documents or exhibits. See Dkt. # 1003; Arizona, 351 F.3d

at 994 (quoting Bollenbach, 326 U.S. at 613). The jury did not ask the Court about a legal

standard or issue prompting further clarification, and the Court properly avoided invading the

jury’s deliberations and fact-finding by commenting on the significance of Exhibits 15 and 16

in relation to Counts 9, 11, and 15. See Arizona, 351 F.3d at 994; Evanston, 651 F.3d at 1087

(“[W]hile the court must aid the jury in clearing away doubts about legal standards, it is not to

employ procedures in the exercise of its discretion that will place it in the position of being a

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‘partner in the fact-finding process.’” (quoting United States v. Walker, 575 F.2d 209, 214 (9th

Cir. 1978)).

Although Defendant relies on United States v. Hope for the proposition that “advising

the jury of the whole truth would not have . . . invaded in the jury’s deliberation,” Reply

5:7–12, Hope does not counsel a different result. There, the Eleventh Circuit held that the trial

judge properly commented on the evidence by responding to a jury note asking if any chromic

acid was found by first reminding the jury that its own recollection of the evidence governed its

findings and then stating that he could not recall any evidence of chromic acid. 714 F.2d 1084,

1088 (11th Cir. 1983). The court did not hold that such a response was required but rather that

the trial judge did not err in providing the response given his accompanying instructions,

“especially since counsel agreed that no chromic acid had been found.” Id. Here, by contrast,

the jury did not ask a question about the relation of Exhibits 15 and 16 to Counts 9, 11, or 15

and the Government opposed Defendant’s proposed additional response to Jury Note No. 1.

Defendant also challenges the Government’s “decision to remain silent in the face of a

clear request for the truth.” Mot. 6:2–6, 8:1–13. In other words, Defendant appears to suggest

that the Government should have made additional arguments after the jury had already begun

deliberations to clarify that Exhibits 15 and 16 were not specifically certifications for Counts 9,

11, or 15. But the Ninth Circuit has cautioned against allowing attorneys to present

supplemental argument after the jury has begun deliberating. See Evanston, 651 F.3d at 1087

(“Allowing the attorneys to argue further on factual matters after the jury retire[s] to deliberate

. . . [is] akin to allowing a witness to provide an opinion as to how to weigh evidence presented,

which is categorically proscribed.”). Here, as the Court explained during its conference with

counsel, both the Government and Defendant’s counsel had already presented arguments to the

jury as to the significance of Exhibits 15 and 16 in relation to the counts against Defendant.

Even if the Government had sought to present further argument to the jury as to Exhibits 15

and 16 in response to Jury Note No. 1, granting such a request would have been improper. See

Evanston, 651 F.3d at 1087–88 (reversing decision to allow further attorney arguments in

response to jury’s statement that it was deadlocked because doing so “intruded upon the jury’s

fact-finding role” and “injected the court and the attorneys into the jury’s deliberative

process”).

In sum, neither the Court’s response to Jury Note No. 1, nor the Government’s support of

the Court’s proposed response, was improper. Moreover, as the Government argues, even if

the jury misunderstood Exhibits 15 and 16 to be certifications specifically tied to Counts 9, 11,

and 15, the fact that the jury did not convict Defendant of Counts 9 and 11 suggests that such a

misunderstanding was not determinative in the jury’s decision to convict Defendant on Count

15. See Opp. 19:18–20:2. Instead, as discussed below, the Government introduced significant

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evidence aside from Exhibits 15 and 16 upon which the jury could reasonably have relied in

finding Defendant guilty on Count 15.

ii.

Agent Sartoph’s Testimony

Defendant next challenges the Government’s solicitation of Agent Sartoph’s testimony

about his understanding of St. Julian’s statements. Mot. 4:6–5:2, 8:3–10.

On April 28, the Government admitted audio recordings of statements by St. Julian,

including a statement that “We had done it,” and asked Agent Sartoph who he understood St.

Julian to be referring to by “we.” Agent Sartoph responded, “herself and her coworkers at

[ARS].” The Court granted Defendant’s counsel’s motion to strike Agent Sartoph’s testimony

as to his understanding of St. Julian’s statements because the statements spoke for themselves.

The Court later instructed the jury that “[a]ny testimony that I have excluded, stricken, or

instructed you to disregard is not evidence” and thus that the jury may not consider such

testimony. Jury Instructions, No. 6.

As the Government argues, the jury is presumed to have followed this instruction and not

to have considered the stricken testimony in reaching its verdict against Defendant on Count

15. See Opp. 17:16–19 (citing Weeks v. Angelone, 528 U.S. 225, 234 (2000) (“A jury is

presumed to follow its instructions.”)). Defendant does not provide any reason to suggest that

the jury failed to follow the Court’s clear directive to disregard any stricken testimony,

including Agent Sartoph’s testimony as to his understanding of St. Julian’s statements. As

described further below, the Government introduced plenty of evidence to support Defendant’s

conviction on Count 15. Thus, the Court is unconvinced by Defendant’s argument that his

conviction must have been based on speculation unless the jury improperly considered Agent

Sartoph’s stricken testimony. See Mot. 8:1–9:18.

iii.

Evidence Supporting Defendant’s Conviction on Count 15

Defendant contends that, setting aside the jury’s perceived misunderstanding and Agent

Sartoph’s stricken testimony, there was insufficient evidence of Defendant’s willful intent to

sustain his conviction on Count 15. Mot. 8:1–9:18. The Court disagrees.

To sustain a conviction of health care fraud under 18 U.S.C. § 1347 as to the willfulness

element, the government must have proven “that the defendant acted with knowledge that his

conduct was unlawful.” Dearing, 504 F.3d 897 at 901 (quoting Bryan v. United States, 524

U.S. 184, 191–92 (1998)). Intent or “willfulness may be inferred from circumstantial evidence

of fraudulent intent,” including proof of knowledge. Id. (citing United States v. Marabelles,

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724 F.2d 1374, 1379–80 (9th Cir. 1984)).

Here, the Government presented significant evidence from which the jury could have

found beyond a reasonable doubt that Defendant knowingly and willfully participated in ARS’

fraudulent billing scheme and acted with the intent to defraud. For example, Special Agent

Ross Reid (“Agent Reid”) testified that Defendant stated he knew the Drug Medi-Cal billing

requirements. Former ARS Youth Services Director Nguyet Galaz (“Galaz”), managers

Elizabeth Black (“Black”) and Cathy Fernandez (“Fernandez”), and Lori Miller (“Miller”)

testified that Defendant attended meetings in which managers discussed ARS counselors’

limited access to classrooms to provide counseling. Nevertheless, Galaz, Black, Fernandez, as

well as former ARS counselors Shyrie Womack and Margarita Lopez and manager Maribel

Navarro, testified Defendant told them to increase their billing, even after being informed that

it would be impossible to do so at certain sites given the limited access. Black testified that

Egans was present at meetings in which Defendant pressured managers to increase their billing,

and Miller testified that Egans and others would leave these meetings looking upset.

Defendant’s former billing assistant Tiara Myers and Miller testified that they knew Defendant

was pressuring counselors and managers to increase their billing. Evidence was also presented

that Defendant collected billing sheets reflecting purported counseling sessions on days that

such sessions could not have happened, including holidays, weekends, and days on which ARS

held mandatory and full-day meetings. Viewing the evidence in the light most favorable to the

Government, see Magallon-Jimenez, 219 F.3d at 1112, the jury could have found beyond a

reasonable doubt that Defendant willfully participated in ARS’ scheme with the intent to

defraud. See Dearing, 504 F.3d at 901–02 (finding sufficient evidence of willful intent and

participation in fraudulent billing scheme in part because defendant disregarded warnings

about fraud and was present at meetings in which managers dismissed other employees’

concerns about billing).

Nevertheless, Defendant argues that the evidence was insufficient to sustain his

conviction on Count 15 because neither the student (J.M.) nor the counselor (Egans)

purportedly involved in the counseling session at issue in Count 15 testified and there was

allegedly no evidence that Defendant encouraged Egans to commit fraud or knew about the

billing related to Count 15. Mot. 9:1–8. The Government counters that there were multiple

ways the jury could have found Defendant guilty on Count 15 based on Egans’ actions. Opp.

12:17–13:17. The Court agrees with the Government.

First, the Court instructed the jury that a defendant could be found guilty of health care

fraud through vicarious liability for the acts of co-schemers. See Jury Instructions, No. 23 (“If

you decide that a defendant was a member of a scheme to defraud and that the defendant had

the intent to defraud, the defendant may be responsible for the other co-schemers’ actions

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during the course of and in furtherance of the scheme, even if the defendant did not know what

the other co-schemers said or did,” as long as “the offense [was] one that the defendant could

reasonably foresee as a necessary and natural consequence of the scheme to defraud.”).

Second, the Court instructed that a defendant could be found guilty through aiding and abetting

liability if, among other elements, “the defendant aided, counseled, commanded, induced, or

procured [another] person with respect to at least one element of health care fraud” and the

defendant “acted with the knowledge and intention of helping that person commit health care

fraud.” See id., No. 24. Third, the Court instructed that a defendant could be found guilty

“even if the defendant did not personally commit the act or acts constituting the crime if the

defendant willfully caused an act to be done that if directly performed by him or her would be

an offense against the United States.” See id., No. 25.

Count 15 was based on a counseling session purportedly provided by Egans to student

J.M. at SEA Manchester on April 6, 2012. The Government presented sufficient evidence for

the jury to find that this session did not occur but was still fraudulently billed for. Specifically,

the Government presented evidence that J.M. was absent from school on April 6, 2012 but that

Egans nevertheless submitted an update log, progress note, and treatment plan for a purported

session on that date and that billing for this session was submitted for payment. Viewing the

evidence in the light most favorable to the Government—i.e., that Defendant pressured

managers, including Egans, to increase billing despite knowing about the practical limitations

in doing so—the jury could reasonably have found that Egans’ actions as to Count 15 were

reasonably foreseeable and held Defendant vicariously liable for Egans’ actions even if

Defendant did not know about the specific actions related to Count 15. Alternatively, the jury

could reasonably have found that Defendant aided and abetted Egans’ commission of health

care fraud as to Count 15 given the pressure to increase billing that Defendant imposed at

manager meetings. Finally, the jury could have reasonably concluded that Defendant willfully

caused Egans’ actions through the pressure he exerted on managers, including Egans.

Defendant also argues that the verdict forms show that Defendant’s and Egans’

convictions as to Count 15 were necessarily based on the jury’s alleged misunderstanding as to

Exhibits 15 and 16. Mot. 10:3–28. On each verdict form, the jury selected only the option

indicating that it found Defendant and Egans knowingly and willfully participated in “[a]

scheme or plan to obtain money or property from a health care benefit program by means of

material false of fraudulent pretenses or representations.” See Dkt. # 1018 at 7; CR 15-474PSG-6, Dkt. # 1020, at 3. Defendant contends that this shows that the jury believed there were

attestations specific to Count 15 that served as the “means of material false or fraudulent

representations.” Mot. 10:21–25. The Court disagrees. Instead, as the Government argues, the

jury’s finding could have been rationally based on any number of other false representations

specific to Count 15, including Egans’ fraudulent update log entry, progress note, and

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treatment plan related to the purported counseling session with J.M. on April 6, 2012. See

Opp. 21:3–10. This explanation is also consistent with the fact that the jury acquitted

Defendant on Counts 9 and 11, even though Jury Note No. 1 similarly indicted that “[w]e have

attestations for Counts 9, 11, 15.” See Dkt. # 1005.

Thus, the Court cannot say that the Government’s case was supported by “mere

speculation” or that no rational trier of fact could have found Defendant guilty beyond a

reasonable doubt as to Count 15. See Nevils, 598 F.3d at 1164, 1167.

iv.

Differences Between Count 15 and the Other Counts

Finally, Defendant argues that, because he was acquitted on the remaining counts, his

conviction on Count 15 must have been based on speculation, the jury’s purported

misunderstanding, or the stricken testimony. Mot. 8:14–9:18. The Court disagrees.

Defendant does not contend that the jury’s guilty verdict on Count 15 is inconsistent

with the jury’s acquittal on the remaining counts against Defendant. But even if he did,

“consistency in jury verdicts is not required.” United States v. Johnson, 804 F.2d 1078, 1083

(9th Cir. 1986) (citing United States v. Powell, 469 U.S. 57, 63 (1984)). The fact that a guilty

verdict on one count “is logically incompatible with a verdict of not guilty on another count

does not warrant reversal of the conviction.” Id.

Both parties point out that Count 15 was the only count charged against Defendant in

which a co-defendant at his trial—Egans—was also charged. See Mot. 8:16–17; Opp. 12:3–5.

As described above, the Government presented evidence that Egans submitted an update log

entry, progress note, and treatment plan for the purported counseling session at issue in Count

15—an individual counseling session with student J.M. on April 6, 2012—even though J.M.

was absent from school that day. The jury could reasonably have determined that there was

sufficient evidence to convict Defendant and Egans as to Count 15 but not to convict

Defendant as to the remaining counts, which were based on counseling sessions purportedly

conducted by other ARS managers and counselors.

In sum, Defendant has failed to show that the evidence presented at trial was insufficient

to sustain his conviction as to Count 15. See Fed. R. Crim. P. 29(a). As such, the Court

DENIES Defendant’s motion for a judgment of acquittal on Count 15.

B.

Motion for New Trial

Defendant alternatively asks the Court to grant a new trial because “a serious miscarriage

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of justice occurred when the Government abandoned its ethical duty to request that the Court

advise the jury of the truth” as to Jury Note No. 1. Mot. 11:1–13:7.

Defendant points to the American Bar Association’s (“ABA”) standards regarding

prosecutors’ heightened duty of candor, including that prosecutors “should disclose a material

fact or facts when necessary . . . to avoid misleading a judge or factfinder.” Mot. 11:24–12:5

(quoting ABA Standards for Criminal Justice Prosecution Function 3-1.4(b) (4th ed. 2017)).

The Government counters that the ABA standards are aspirational and non-binding but that

regardless, the Government did not engage in any conduct violating the relevant ABA

standards or the applicable binding California Rules of Professional Conduct. Opp. 24:1–25:8

& 25 n.4. The Court agrees with the Government.

As an initial matter, the Government is correct that the ABA standards “are aspirational

or describe ‘best practices,’ and are not intended to . . . create substantive or procedural rights

for accused or convicted persons.” See ABA Standards for Criminal Justice Prosecution

Function 3-1.1(b) (4th ed. 2017); see also United States v. Mulrenin, No. 20-cr-00152-PAB,

2021 WL 5759164, at *3–4 (D. Colo. Dec. 3, 2021) (finding defendants “fail[ed] to show how

alleged violations of aspirational ABA standards warrant a mistrial when the relevant standards

are the Colorado Rules of Professional Conduct” and defendants did not show the prosecution

had violated any ABA standards). But even if the ABA standards were binding upon the

Government, Defendant has not shown that the Government misled the jury. The Government

did not argue that Exhibits 15 and 16 were tied to any specific count against Defendant but

rather represented that these were example certifications. Cf. United States v. Sogbein, No. CR

12-00054-1 JSW, 2014 WL 12691533, at *9 (N.D. Cal. May 27, 2014) (denying motion for

new trial as to convictions of health care fraud based on alleged prosecutorial misconduct

because “the Government did not knowingly make false statements about the evidence

presented or argue about evidence that it had a strong reason to doubt”). Defendant does not

point to any authority suggesting that the Government was under an ethical duty to

affirmatively seek to clarify what Defendant contends was a misunderstanding by the jury as to

whether there were certifications specifically tied to Counts 9, 11, or 15. Nor does Defendant

respond to the Government’s argument that it did not violate the relevant, binding California

Rule of Professional Conduct 3.8. See Opp. 25 n.4.

In sum, Defendant has not pointed to any evidence that weighs heavily against the

verdict or otherwise shown that the interest of justice requires granting a new trial on Count 15.

See Fed. R. Crim. P. 33(a); Alston, 974 F.2d at 1211–12. Instead, the Government presented

sufficient evidence to sustain Defendant’s conviction on Count 15. As such, the Court

DENIES Defendant’s motion for a new trial.

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Appendix C

App-23

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Case 2:15-cr-00474-PSG Document 1059 Filed 07/12/22 Page 13 of 13 Page ID #:6811

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CRIMINAL MINUTES - GENERAL

IV.

Conclusion

For the foregoing reasons, the Court DENIES Defendant’s motion for a judgment of

acquittal or, in the alternative, for a new trial.

IT IS SO ORDERED.

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Appendix C

App-24

Page 13 of 13