United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Virginia M. Kendal United States District Judge
2, 2016, a grand jury indicted Defendant William Mikaitis
with one count of conspiracy to distribute a controlled
substance outside of the usual course of professional
practice and without a legitimate medical purpose in
violation of 21 U.S.C. § 841(a)(1) (Count One), seven
counts of distributing a controlled substance outside of the
usual course of professional practice and without a
legitimate medical purpose in violation of 21 U.S.C. §
841(a)(1) and 18 U.S.C. § 2 (Counts Two through Eight),
and seven counts of dispensing prescription drugs without a
valid prescription in violation of 21 U.S.C. §§
353(b)(1), 331(k) and 333(a)(2) and 18 U.S.C. § 2
(Counts Nine through Fifteen). (Dkt. No. 1). On November 17,
2016, the grand jury returned a superseding indictment adding
charges against Mikaitis for conspiracy to conduct financial
transactions with drug proceeds to promote unlawful activity
in violation of 18 U.S.C. § 1956(h) (Count Sixteen) and
engaging in a monetary transaction involving criminally
derived property having a value greater than $10, 000 in
violation of 18 U.S.C. § 1957 (Count Seventeen). (Dkt.
No. 38). The case proceeded to a jury trial, and after five
days, on September 5, 2017, the jury found Mikaitis guilty of
all seventeen counts. (Dkt. No. 85). On October 17, 2017,
Mikaitis filed a Motion for Judgment of Acquittal pursuant to
Rule 29 or for a New Trial pursuant to Rule 33. (Dkt. No.
95). For the following reasons, Defendant Mikaitis'
Motion  is denied.
William Mikaitis was a physician licensed to practice
medicine in the State of Illinois and worked for 33 years as
a general practitioner, primarily in the field of family
medicine. (Mikaitis Tr. at 8:11-9:1). In October 2012, a drug
representative, Angelo Sperando, introduced Mikaitis to
co-defendant Michael Jennings. (Mikaitis Tr. at 9:23-10:14).
Jennings ran Results Weight Loss Clinic and needed a
physician to keep the clinic open because the physician
previously working with him had lost his license. (Sperando
Tr. at 5:10-18; Mikaitis Tr. at 10:15-17). At that time,
Mikaitis was working full-time for Advocate Hospital at a
clinic in Lockport, Illinois. (Mikaitis Tr. at 8:15-20).
Jennings offered to pay Mikaitis cash to obtain a DEA
registration number for the clinic to use and review patient
charts, and Mikaitis agreed. (Id. 11:6-12:15).
obtained a new DEA registration number specifically for the
clinic to use and authorized Jennings to use the DEA
registration number and his credit card to place bulk orders
of the diet medication phentermine, a controlled substance,
for distribution to clinic patients. (Id. at
23:23-24:5, 35:14-36:2). Jennings then reimbursed Mikaitis
for the cost of the medication. (Id. at 65:11-21).
In two years, Jennings ordered more than 530, 000 pills, or
17, 000 monthly prescription bottles, of weight loss
medication costing more than $84, 000 using Mikaitis'
card and registration number. (Id. at 58:18-59:4,
65:11-21). Jennings dispensed the medication to patients at
the clinic and sent medication via mail to patients who
placed orders over the phone. (Id. at 26:5-15,
61:7-14). Jennings who had no medical license met with and
spoke to patients before dispensing the medication.
(Id. at 46:15-25). No licensed professional met with
any patient before the medication was provided.
visited the clinic once a week to pick up his weekly cash
payment of $1, 750 and reviewed between four to eight patient
charts each week but never saw any patients in person,
prepared medical charts for patients, or reviewed charts of
other patients receiving medication from the clinic.
(Id. at 13:7-20, 24:17-18, 47:17-19). Mikaitis
deposited the cash payments into a joint account he shared
with a woman with whom he was having an affair, Vesta
Valuckaite, and the two used the funds for travel, a down
payment on a car, and other expenses. (Id. at
33:15-25, 81:11-82:22, 89:7-12; Valuckaite Tr. at 23:14-17,
January 21, 2015, two DEA agents visited the Results clinic
and questioned Jennings and Mikaitis. (Kasza Tr. at 4:11-16;
Mikaitis Tr. at 84:1-13). The next day, the DEA agents
visited the clinic in Lockport where Mikaitis worked
full-time and questioned Mikaitis again. (Kasza Tr. at
19:13-21, 20:23-21:16, 22:5-23:5; Mikaitis Tr. at 87:6-14).
Jennings and Mikaitis were indicted in June 2016 and the
Court held a jury trial from August 28, 2017 to September 5,
jury heard from clinic patients, a DEA agent, Valuckaite,
Sperando, an expert in bariatric medicine, and Mikaitis
himself regarding Jennings' and Mikaitis'
distribution of phentermine through the Results Weight Loss
Clinic. The jury judged the credibility of the witnesses,
weighed the evidence and found Mikaitis guilty on all
seventeen counts. Mikaitis claims that the jury was wrong and
the Government did not meet its burden of proof on any of the
charges against him. Mikaitis also challenges one jury
instruction and claims the Court erroneously curtailed
defense counsel's closing argument.
argues that the Court should enter a judgment of acquittal
pursuant to Rule 29 for each count because the Government
failed to meet its burden of proving him guilty beyond a
reasonable doubt. Mikaitis moves in the alternative for a new
trial pursuant to Rule 33 on two grounds: (1) that the
“ostrich” instruction was given to the jury in
error and (2) that the Court erroneously limited
Mikaitis' closing argument. (Dkt. No. 95). Mikaitis is
not entitled to any of the relief sought.
Ample Evidence in the Record Supports the Jury's
motion for judgment of acquittal challenges the sufficiency
of the evidence to sustain a conviction against a defendant.
See Fed. R. Crim. P. 29. Mikaitis faces “a
nearly insurmountable hurdle” in contending that the
jury had insufficient evidence to convict him. See United
States v. Miller, 782 F.3d 793, 797 (7th Cir. 2015)
(citing United States v. Torres-Chavez, 744 F.3d
988, 993 (7th Cir. 2014)). Once convicted, the Court reviews
the evidence presented to the jury in the light most
favorable to the Government and makes all reasonable
inferences in the Government's favor. See United
States v. Cejas, 761 F.3d 717, 726 (7th Cir. 2014)
(citing United States v. Larkins, 83 F.3d 162, 165
(7th Cir. 1996)). The Court may overturn the jury's
guilty verdict “only if the record is devoid of
evidence from which a reasonable jury could find guilt beyond
a reasonable doubt.” United States v. Jones,
713 F.3d 336, 340 (7th Cir. 2013) (quoting United States
v. Stevenson, 680 F.3d 854, 855-56 (7th Cir. 2012)).
“If there is a reasonable basis in the record for the
verdict, it must stand.” United States v.
Moshiri, 858 F.3d 1077, 1082 (7th Cir. 2017) (citing
United States v. Galati, 230 F.3d 254, 258 (7th Cir.
2000)). The jury must weigh the evidence and assess the
witnesses' credibility, and courts do not
“second-guess the jury's assessment of the
evidence.” See United States v. Rollins, 544
F.3d 820, 835 (7th Cir. 2008).
argues he is entitled to a judgment of acquittal because the
Government failed to prove beyond a reasonable doubt that he
had any knowledge that any medication would be distributed to
any patient without a legitimate medical purpose and that
each count for which he was indicted required that the
Government prove such knowledge. Under the theory that each
count required the same proof of knowledge, Mikaitis focuses
its argument on only the conviction for violating 21 U.S.C.
§ 841(a)(1) in Count One.
21 U.S.C. § 841(a)(1) provides that it is
“unlawful for any person knowingly or intentionally . .
. to manufacture, distribute, or dispense, or possess with
intent to manufacture, distribute, or dispense, a controlled
substance.” To convict a physician under Section
841(a)(1), the Government must show “that he prescribed
controlled substances (1) ‘outside the course of
professional practice' and (2) without a
‘legitimate medical purpose.'” United
States v. Pellmann, 668 F.3d 918, 923 (7th Cir. 2012)
(quoting United States v. Bek, 493 F.3d 790, 798
(7th Cir. 20007)); see also United States v. Chube
II, 538 F.3d 693, 697 (7th Cir. 2008) (“In order
to support a violation of [21 U.S.C. § 841(a)(1)], the
jury had to find that the Doctors knowingly and intentionally
acted outside the course of professional practice and without
a legitimate medical purpose.”) (internal quotation
to Mikaitis' claim, the Government presented ample
evidence that Mikaitis knew prescription drugs were
distributed to clinic patients without a legitimate medical
purpose. Sperando's testimony suggested that at the very
least, Mikaitis should have been suspicious of Jennings'
business from the outset. Sperando testified that he told
Mikaitis that Jennings needed a doctor in order to keep his
business afloat because he needed a DEA registration number
to order prescription drugs for distribution and the
physician previously working with him had lost his license.
(Sperando Tr. at 5:10-23). Sperando testified further that he
told Mikaitis that, if he worked with Jennings, he would not
need to see any patients and would be paid weekly in cash.
(Id. at 6:5-20).
own testimony suggests he knew that Jennings was the only
person seeing patients at the clinic and that patients were
not seen by a licensed professional before being given
phentermine. Mikaitis testified that he knew Jennings did not
have a license to practice medicine or prescribe drugs.
(Mikaitis Tr. at 46:15-25). He also testified that he never
saw or agreed to see any patients and that he never saw any
other licensed physician at the clinic when he visited.
(Id. at 47:17-19). In fact, the only person he did
see at the clinic was Jennings. (Id. at 49:22-50:5).
Sperando similarly testified that he picked up his payment
from the clinic on a weekly or bi-weekly basis and, while
there, saw that Mikaitis was the only person seeing patients.
(Sperando Tr. at 13:20-14:13, 17:2-11). Furthermore, Jennings
actually told Mikaitis in text messages that he was seeing
patients. For example, on July 19, 2014, Jennings texted
Mikaitis, “I got extremely busy these last couple days.
It's probably because of the week I'm not in the
office next Saturday, everybody's getting in early.
I'm finishing up a with [sic] couple more people.”
(James Tr. at 33:6-9). Similarly, on May 2, 2014 Jennings
texted Mikaitis, “I was here late yesterday with
last-minute new patients.” (Id. at 20:9).
between Jennings and Mikaitis also showed that Mikaitis did
check his credit card statements reporting the purchases made
with his DEA registration number. For example, on October 15,
2013, Mikaitis asked Jennings, “Good morning, Mike. Did
you order anything from a company Anda?” and Jennings
responded, “Yes, I'll make deposit today 306 and
tomorrow 881 for Hauser.” (Id. at 15:13-16:2).
The text shows that Mikaitis clearly monitored Jennings'
Government also presented evidence that Mikaitis knew
Jennings unlawfully shipped prescription drugs to patients.
Valuckaite testified that she overheard Mikaitis talking on
the phone to Jennings about “shipments” and that
Mikaitis told her Jennings shipped refills of phentermine
prescriptions to patients. (Valuckaite Tr. at 16:1-23).
Sperando testified that a few times when he picked up his
cash payments from the clinic he saw medications that
Jennings had prepared to mail out on Jennings' desk in
his office. (Sperando Tr. at 17:12-18). Mikaitis visited the