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United States v. Kolbusz

United States District Court, N.D. Illinois, Eastern Division

August 26, 2014



JOHN Z. LEE, District Judge.

Defendant Robert Kolbusz has been charged with seven counts of mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343. The Government alleges Defendant billed Medicare and private insurers based on false diagnoses of actinic keratosis (precancerous lesions) and the performance of medically unnecessary procedures. In this case, Defendant and the Government filed several motions in limine. For the reasons stated herein, the Court denies Defendant's motion to exclude evidence of patients not named in the indictment [57] [94], grants Defendant's motion to exclude a peer review analysis report [58], and denies Defendant's motion to exclude the expert testimony of Dr. Edward Ross [72]. The Court further grants the Government's motion to limit the expert testimony of Dr. David Goldberg [71].


"Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials." Luce v. United States, 469 U.S. 38, 41 n.4 (1984). Rulings in limine avoid delay and allow the parties the opportunity to prepare themselves and witnesses for the introduction or exclusion of the applicable evidence. See Wilson v. Williams, 182 F.3d 562, 566 (7th Cir. 1999); United States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989). Trial courts have broad discretion in ruling on evidentiary issues before trial. See United States v. Chambers, 642 F.3d 588, 594 (7th Cir. 2011); Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 426 (7th Cir. 2000). The Court will only grant a motion in limine when the evidence is clearly inadmissible for any purpose. See Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997); Betts v. City of Chi., Ill., 784 F.Supp.2d 1020, 1023 (N.D. Ill. 2011). Moreover, rulings on motions in limine are "subject to change when the case unfolds[.]" Luce, 469 U.S. at 41; see also Farfaras v. Citizens Bank & Trust of Chi., 433 F.3d 558, 565 (7th Cir. 2006). Indeed, "even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling." Luce, 469 U.S. at 41-42.

I. Defendant's Motions in Limine

A. Patients Not Named in the Indictment

Defendant first moves to preclude the Government from introducing evidence regarding patients who were not specifically named in the indictment. In his motion, Defendant makes three principal arguments: (1) the evidence of patients outside of the indictment constitutes a constructive amendment to the indictment in violation of his rights under the Fifth Amendment; (2) the Government did not provide reasonable notice under Federal Rule of Evidence ("FRE") 404(b); and (3) the evidence is prejudicial, cumulative, and will cause undue delay under FRE 403. For the following reasons, the Court denies Defendant's motion.

First, Defendant argues that introducing patients not named in the indictment is a constructive amendment to the indictment. A constructive amendment to an indictment "can imperil a defendant's Fifth Amendment right to be informed of the nature and cause of the accusation against her[.]" United States v. Ratliff-White, 493 F.3d 812, 819-20 (7th Cir. 2007) (internal citations omitted). "A constructive amendment to an indictment: is found where a complex set of facts' is presented to the jury during the trial which is distinctly different from the set of facts set forth in the charging instrument." Id. at 820 (citing United States v. Kuna, 493 F.3d 812, 818 (7th Cir. 1985)).

Here, the Government's introduction of patients not named in the indictment is not a constructive amendment to the indictment. The charging instrument sets forth a set of facts involving Defendant's alleged scheme to defraud Medicare and private insurers by billing for unnecessary medical services for hundreds of patients. See Indictment, Dkt. No. 1 at 5 (charging Defendant with mail and wire fraud and alleging that he engaged in a scheme to defraud by "submit[ing] false claims in this manner for hundreds of patients during the scheme, including, for example, Individuals A through G"). Although Defendant argues that the indictment must list each and every manner by which he perpetrated the alleged scheme, the Government need not enumerate each execution of the scheme in an indictment. See United States v. Hammen, 977 F.2d 379, 383 (7th Cir. 1992). Because the indictment alleges that Defendant's crimes were carried out through a scheme involving hundreds of patients, introducing evidence of patients who were allegedly used to perpetuate Defendant's scheme would not constitute a distinctly different set of facts than those contained in the indictment. See United States v. Phillips, 745 F.3d 829, 831-32 (7th Cir. 2014) (evidence of defendant's tax returns not specifically mentioned in the indictment alleging tax fraud not a constructive amendment); see also United States v. Pless, 79 F.3d 1217, 1220 (D.C. Cir. 1996) (holding "it is not necessary for the government to charge every single act of execution of the scheme in order to prove the whole scheme"). In much the same way, evidence of patients not specifically named in the indictment would support the offenses charged in the indictment, not another crime. See United States v. Alhalabi, 443 F.3d 605, 614 (7th Cir. 2006) (noting that "[t]he admission of evidence intricately related to the charged crimes... does not constructively amended the indictment"). Accordingly, Defendant's constructive amendment argument fails.

Next, Defendant argues that the Government violated FRE 404(b)(2) because it did not provide him with reasonable notice of its anticipated use of evidence regarding these other patients. Presumably, Defendant's position is that, because evidence of other patients relates to crimes other than those charged in the indictment, such evidence falls within the purview of FRE 404(b). But, as discussed above, evidence of patients not specifically named in the indictment would constitute evidence of Defendant's charged crime, not a different crime, and Rule 404(b) does not apply.

That said, even if facts regarding other patients were considered evidence of other crimes, the indictment put Defendant on notice that the Government could try to introduce evidence of these patients to prove Defendant's scheme. Additionally, in May 2013, the Government provided Defendant with the identities of all patients for whom Defendant submitted an allegedly false claim, and Defendant has had nearly sixteen months to review this evidence. Given the nature of the allegations in the indictment and the discovery provided by the Government to Defendant in May 2013, the Court finds that Defendant was provided sufficient notice under FRE 404(b)(2), if such notice were required. See United States v. Blount, 502 F.3d 674, 677-78 (7th Cir. 2007) (providing notice of FRE 404(b) evidence to defendant one week before trial was sufficient); see also Fed.R.Evid. 404 advisory committee's note (stating that "[o]ther than requiring pretrial notice, no specific time limits are stated in recognition that what constitutes a reasonable request or disclosure will depend largely on the circumstances of each case.").

Finally, Defendant argues that introducing evidence of patients not named in the indictment is prejudicial, cumulative, and will cause undue delay under FRE 403.[1] Under FRE 403, the Court "may exclude relevant evidence if its probative value is substantially outweighed by a danger of" unfair prejudice, undue delay, or needlessly presenting cumulative evidence. Fed.R.Evid. 403. Here, evidence of patients not named in the indictment, to the extent they were used as part of Defendant's scheme, would be probative of the alleged scheme, as well as Defendant's intent to defraud under 18 U.S.C. §§ 1341, 1343.

On the other side of the ledger, Defendant argues that evidence of other patients would be unduly prejudicial because the Government "cherry-picked" the patients to present at trial. By way of illustration, Defendant argues that by selecting only female patients, the Government "will prejudicially skew the jury to believe that Kolbusz only treated young females for the condition." Def.'s Mot. in Limine 6. These arguments are uncompelling.

As an initial matter, the Government has stated that it "does not plan to allege or argue that the defendant only treated young women or only committed fraud relating to his young female patients." Government's Response 5; see also id. 6 (noting that two of seven patients in the indictment were born in the 1940s and an additional patient is a middle-aged man). In any event, the Court does not see how introduction of other patient evidence would be unduly prejudicial, so long as they are being offered to prove that they were part of Defendant's scheme. Additionally, given the "small number" that the Government intends to introduce at trial, id., the Court finds that the presentation of these additional patients will not be unnecessarily cumulative or cause undue delay (to the extent that it is otherwise at trial, Defendant may reassert these arguments ...

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