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United States v. Mikaitis

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

April 25, 2018



          Hon Virginia M. Kendal United States District Judge

         On June 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 [95] is denied.


         Defendant 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).

         Mikaitis 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.

         Mikaitis 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, 33:14-35:12)

         On 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, 2017.

         The 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.


         Mikaitis 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.

         I. Ample Evidence in the Record Supports the Jury's Verdict

         A 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).

         Mikaitis 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.[1]

         Title 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 omitted).

         Contrary 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).

         Mikaitis' 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).

         Texts 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' purchases.

         The 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 clinic ...

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