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United States v. Picciotti

March 16, 1999


The opinion of the court was delivered by: Orlofsky, District Judge



On March 11, 1999, following the conclusion of the Government's case, Defendant, Joseph Picciotti ("Dr. Picciotti"), moved for a judgment of acquittal, pursuant to Rule 29(a) of the Federal Rules of Criminal Procedure. At the conclusion of oral argument, I reserved decision on the motion, pursuant to Rule 29(b). *fn1

In pressing this motion, Dr. Picciotti's counsel divided the Indictment into four categories of allegations: (1) mail fraud, see Indictment, Counts 8-14; (2) kickbacks with reference to Leon SCD, see id., Counts 2-4; (3) kickbacks with reference to BK Associates ("BKA"), see id., Counts 5-7; and (4) a conspiracy to violate the anti-kickback statute and to defraud the Government in violation of 18 U.S.C. § 371, see id., Count 1. Through his counsel, Dr. Picciotti argued that the Government has failed to present sufficient evidence to meet its burden of proof for any of the four categories of charges.

For the reasons set forth below, I find, after examining the evidence in the light most favorable to the Government, that the Government has presented sufficient evidence from which a reasonable jury could conclude that all of the elements of the crimes charged in the Indictment have been proved beyond a reasonable doubt.

Legal Standard Governing Motions for Judgment of Acquittal

Rule 29(a) provides:

Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. If a defendant's motion for judgment of acquittal at the close of the evidence offered by the government is not granted, the defendant may offer evidence without having reserved the right. Fed. R. Crim. P. 29(a).

The legal standard governing such motions is well-settled. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986) (noting that "almost all the Circuits" have adopted a similar formulation of the standard for a motion for judgment of acquittal). The standard requires the court to grant the motion if the court "`determine[s that] the evidence, viewed in the light most favorable to the government, is such that a reasonably minded jury must have a reasonable doubt as to the existence of any essential elements of the crime charged.'" United States v. Allery, 139 F.3d 609, 610 (8th Cir. 1998) (quoting United States v. Robbins, 21 F.3d 297, 298 (8th Cir. 1994)); see also United States v. Giampa ("Giampa I"), 758 F.2d 928, 934 (3d Cir. 1985) (holding that, under Rule 29(a), "the district court must determine whether the Government has adduced sufficient evidence respecting each element of the offense charged to permit jury consideration"). Conversely, the court must deny a motion for a judgment of acquittal when, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could [find] the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). Under this standard, "[a] defendant challenging the sufficiency of the evidence bears a heavy burden." United States v. Casper, 956 F.2d 416, 421 (3d Cir. 1992).

"When examining the sufficiency of the evidence, the court reviews the totality of the circumstances." United States v. Leon, 739 F.2d 885, 891 (3d Cir. 1984). That is, the court must examine all of the evidence presented by the Government taken as a whole, and not consider pieces of the evidence in isolation. See United States v. Giampa ("Giampa II"), 904 F. Supp. 235, 320 (D.N.J. 1995) (holding that the court must view the evidence "`not in isolation but in conjunction'") (quoting United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984) (quoting United States v. Geaney, 417 F.3d 1116, 1121 (2d Cir. 1969), cert. denied, 397 U.S. 1028 (1970))). Further, in evaluating the evidence, the "district court cannot and should not weigh the evidence . . . Nor . . . is the district court permitted to make credibility determinations. The district court is confined solely to its assessment of the sufficiency of the Government's evidence." Giampa, 758 F.2d at 934-35.

Guided by this standard, I will examine the sufficiency of the evidence, in the light most favorable to the Government, for the four categories of allegations in the Indictment, as described by Dr. Picciotti's counsel during oral argument on March 11, 1999. Examining the Sufficiency of the Evidence Presented by the Government

1 Mail Fraud

The Indictment alleges that Dr. Picciotti:

did knowingly and willfully devise a scheme and artifice to defraud HHS and the Medicare program by means of false and fraudulent pretenses, representations and promises, in that Picciotti caused the placement of orders for DME [durable medical equipment] and supplies from BKA, which orders were reimbursed by Medicare, without disclosing his receipt of unlawful payments from BKA and his ownership interest in BKA. Indictment, Counts 8-14, ¶ 2.

The conduct alleged in the Indictment, if proven, violates 18 U.S.C. ยง 1341, which prohibits mail fraud. In United States v. Universal Rehabilitation Services, the Third Circuit summarized the elements that the Government must prove to demonstrate ...

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