United States v. Richard Paulus ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0386n.06omg
Case No. 20-6017
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Aug 16, 2021
UNITED STATES OF AMERICA, )
DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
RICHARD E. PAULUS, M.D., ) DISTRICT OF KENTUCKY
)
Defendant-Appellant. ) OPINION
BEFORE: BATCHELDER, McKEAGUE, and GRIFFIN, Circuit Judges.
McKEAGUE, Circuit Judge. A jury convicted Dr. Richard E. Paulus of healthcare fraud
and making false statements relating to healthcare. The district court granted Paulus’s Rule 29
motion for acquittal based on the insufficiency of the evidence, and we reversed. The district court
then denied Paulus’s motion for a new trial under Brady v. Maryland, and we again reversed. In
the instant appeal, Paulus argues that the district court erred by denying his motion to dismiss the
indictment because a new trial would violate the Double Jeopardy Clause. We disagree.
Therefore, we AFFIRM the district court’s denial of Paulus’s motion to dismiss.
Case No. 20-6017, United States v. Paulus
I.
This is case is before us for the third time. See United States v. Paulus (Paulus I), 894 F.3d
267 (6th Cir. 2018); United States v. Paulus (Paulus II), 952 F.3d 717 (6th Cir. 2020). Our prior
opinions contain a detailed factual background of the case.
As relevant here, a jury convicted Dr. Richard E. Paulus of one count of healthcare fraud
and ten counts of making false statements relating to healthcare. 18 U.S.C. §§ 1035(a)(2), 1347;
Paulus II, 894 F.3d at 721. The gravamen of the case was that Paulus was performing medically
unnecessary procedures. After trial, Paulus made a Rule 29 motion for a judgment of acquittal
and a Rule 33 motion for a new trial. Fed. R. Crim. P. 29, 33. The district court granted Paulus’s
motion for an acquittal on the basis that the evidence was legally insufficient, set aside the jury’s
guilty verdict, and conditionally granted his motion for a new trial. United States v. Paulus, No.
CR 15-15-DLB-EBA, 2017 WL 908409, at *1 (E.D. Ky. Mar. 7, 2017). We disagreed, reversed
the judgment of acquittal, reinstated the jury’s verdict, and vacated the conditional order granting
a new trial. Paulus I, 894 F.3d at 280.
After remand but before sentencing, a Brady issue arose. The government disclosed a
document (the “Shields Letter”) produced for Paulus’s employer (King’s Daughters Medical
Center (KDMC)) in an independent review of Paulus’s medical work. Paulus II, 952 F.3d at 722.
The Shields Letter indicated that a smaller percentage of Paulus’s cases were medically dubious
than the government alleged. Id. (explaining that the letter was “less consistent with systemic and
purposeful fraud and more consistent with occasional mistakes or diagnostic differences of opinion
between cardiologists”). The government planned to use the Shields Letter in its case-in-chief
before trial, believing it was inculpatory but also recognized that it had exculpatory value. Id.
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KDMC objected on the grounds that the Shields Letter was privileged and inadmissible.
The district court held an ex parte hearing and determined that the letter was inadmissible under
Federal Rule of Evidence 408 (and made no privilege ruling). Id. The government argued that,
regardless of admissibility, it was obligated to disclose the letter as Brady evidence. Id. But the
district court disagreed and ordered that the government and KDMC “were not to disclose” any
more information about the KDMC review to Paulus. Id. (cleaned up). So Paulus knew nothing
of the letter until after remand from Paulus I.
Paulus moved for a new trial in light of the Shields Letter. Id. The district court denied
the motion, and we reversed on the ground that the government’s failure to disclose the letter
violated Paulus’s Fifth Amendment due process rights under Brady. Id. at 724. While we
“sympathize[d] with the [government] because . . . the government believed it had an obligation
to disclose the Shields Letter to Paulus and did not do so solely because of the district court’s
order,” we reaffirmed that “Brady is about the fairness of the trial and not about ferreting out the
‘misdeeds of a prosecutor.’” Id. (quoting United States v. Agurs, 427 U.S. 97, 110 n.17 (1976)).
We vacated Paulus’s conviction and remanded for a new trial. Id. at 728.
Back in the district court, Paulus moved to dismiss the indictment because a retrial would
violate the Double Jeopardy Clause of the Fifth Amendment. Paulus argued that the government’s
failure to disclose the Shields Letter to us in Paulus I constituted fraud on the court, rendering
Paulus I void, thereby reinstating the district court’s grant of acquittal, and thus invoking the
Double Jeopardy Clause’s protections. The district court denied the motion. The district court
reasoned that Paulus “consented to a second trial by moving for both a judgment of acquittal or a
new trial.” The district court also declined to hold that Paulus I was void due to fraud on the Sixth
Circuit. Paulus appeals.
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Case No. 20-6017, United States v. Paulus
II.
We have jurisdiction over “final decisions.” 28 U.S.C. § 1291. “In the criminal context,
that generally means a defendant may lodge an appeal only after the court imposes a conviction
and a sentence.” United States v. Martirossian, 917 F.3d 883, 886 (6th Cir. 2019). There is a very
limited list of exceptions to this general rule. It includes the denial of a motion to dismiss based
on the Double Jeopardy Clause, Abney v. United States, 431 U.S. 651, 662 (1977), but does not
include due-process and fraud-on-the-court1 claims. See Martirossian, 917 F.3d at 887.
Accordingly, we review only the double jeopardy claim and its “necessary component[s].” See
Richardson v. United States, 468 U.S. 317, 322 (1984).
We review double jeopardy claims de novo. United States v. Neal, 93 F.3d 219, 221 (6th
Cir. 1996).
III.
The Double Jeopardy Clause states that no “person [shall] be subject for the same offence
to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. The Supreme Court has
interpreted the Clause as a check against “the vast power of the sovereign” to prohibit “prosecutors
. . . treat[ing] trials as dress rehearsals until they secure the convictions they seek.” Currier v.
Virginia, 138 S. Ct. 2144, 2149 (2018). But the Clause is not “an insuperable obstacle to the
administration of justice” when there is “no semblance” of “oppressive practices.” Id. (quoting
Wade v. Hunter, 336 U.S. 684, 688–89 (1949)). In other words, “the Clause does not guarantee
that the state’s interest in enforcing the criminal laws against a defendant will be vindicated in a
single trial.” Phillips v. Ct. of Common Pleas, 668 F.3d 804, 811 (6th Cir. 2012).
1
Paulus argues that we should exercise our inherent powers to dismiss actions because of “fraud on the court.” See
Demjanjuk v. Petrovsky, 10 F.3d 338, 352 (6th Cir. 1993). He also argues that the failure to disclose the letter “was
an additional violation of Paulus’s right to due process” and makes arguments about “ethical violations.” We have no
jurisdiction over these independent claims in this interlocutory appeal.
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Case No. 20-6017, United States v. Paulus
Paulus argues that a unique confluence of procedural steps, along with prosecutorial
misconduct, bring his case within the ambit of the Double Jeopardy Clause. First, the district court
granted Paulus’s motion for acquittal and we reinstated the conviction. Second, we held that the
government should have disclosed the Brady evidence before trial, so a new trial was necessary.
Neither of these steps in isolation implicate the Double Jeopardy Clause. Paulus thus argues that
the government’s failure to disclose the potential Brady evidence during Paulus I is the type of
oppressive prosecutorial misconduct that implicates the Clause.
But that argument finds no support in our case law. When a defendant is convicted but
gets the conviction set aside, an appellate court may reinstate the original conviction without
offending the Double Jeopardy Clause. United States v. Baggett, 251 F.3d 1087, 1093 (6th Cir.
2001). Likewise, if a conviction is overturned, retrial is permissible. Lockhart v. Nelson, 488 U.S.
33, 38 (1988). The remedy for a Brady violation is a new trial. United States v. Presser, 844 F.2d
1275, 1286 (6th Cir. 1988). And the type of intentional prosecutorial misconduct that implicates
the Double Jeopardy Clause has not been extended to Brady. Cf. Oregon v. Kennedy, 456 U.S.
667, 676 (1982). Even if we did extend it here, it wouldn’t apply in this case for two reasons.
First, the rule regarding when intentional prosecutorial misconduct triggers double jeopardy
applies to mistrials, and here we have a jury conviction. United States v. Brown, 994 F.3d 147,
156 (3d Cir. 2021). Second, not disclosing potential Brady material under a court order is not
intentionally seeking a new trial. See Kennedy, 456 at 676. We affirm the district court.
A.
The district court’s grant of Paulus’s motion for acquittal doesn’t implicate the Double
Jeopardy clause. If a jury (or a judge) acquits a defendant, the Double Jeopardy Clause prevents
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the government from retrying the defendant.2 See Tibbs v. Florida, 457 U.S. 31, 41 (1982); Green
v. United States, 355 U.S. 184, 187–88 (1957). But when a jury convicts a defendant and the
defendant “succeeds in getting his first conviction set aside,” then the Clause does not apply.
Lockhart, 488 U.S. at 38; accord Green, 355 U.S. at 189. So when a “district court grants [a] Rule
29 motion after the jury renders a guilty verdict, double jeopardy does not bar appeal by the
government” because the appellate court can just order that the jury’s verdict be reinstated.
Baggett, 251 F.3d at 1093.
That’s what happened in Paulus I. The jury convicted Paulus and then the district court
set aside that conviction by granting Paulus’s Rule 29 motion. We reversed the district court and
reinstated the conviction. At that point, the Double Jeopardy Clause was not implicated.
B.
Paulus’s successful litigation of his Brady claim didn’t implicate the Double Jeopardy
Clause either. Under Brady, prosecutors must disclose material evidence favorable to a defendant.
Brady v. Maryland, 373 U.S. 83, 87 (1963); see Paulus II, 952 F.3d at 724. When a court finds
that prosecutors did not disclose such evidence, “[w]e . . . vacate [the] conviction and remand for
a new trial.” United States v. Tavera, 719 F.3d 705, 708 (6th Cir. 2013). We don’t order the case
to be dismissed on double jeopardy grounds. Sanborn v. Parker, 629 F.3d 554, 580 (6th Cir. 2010)
(“What the Double Jeopardy Clause manifestly does not do, however, is protect a defendant from
2
Paulus argues that this rule applies to his case because Paulus II effectively overruled Paulus I, thereby reinstating
the district court’s judgment of acquittal. He reasons that “the first appellate review of this case would have been
fundamentally different” if the government disclosed the Shields Letter, concluding that we “would never have
reinstated the jury verdict in the first place.”
Paulus’s arguments make little sense. In Paulus I, we held that there was sufficient evidence (without the
Brady evidence) for the conviction. In Paulus II, we held that the government violated Brady. Paulus II does not
have the effect of invalidating Paulus I, nor should it—the issues were entirely distinct. In other words, our holding
in Paulus I that the evidence was sufficient (without the Shields Letter) has no bearing on whether the evidence at a
new trial would be sufficient—that trial hasn’t happened yet and we are not the factfinder. Even if the government
disclosed the Shields Letter before us in Paulus I, the remedy for the Brady violation would have been a new trial.
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retrial after he has succeeded in obtaining a reversal on appeal because of errors committed at trial
. . . .”). This case is no different.
“The decisions which have construed the Brady doctrine make it absolutely clear that the
remedy for a Brady violation is a new trial . . . .” Presser, 844 F.2d at 1286; see Kyles v. Whitley,
514 U.S. 419, 422 (1995) (noting that when a defendant proves a Brady violation, they are “entitled
to a new trial”). So after Paulus “succeeded in getting his first conviction set aside” on Brady
grounds, the Double Jeopardy Clause was not implicated. Lockhart, 488 U.S. at 38.
C.
Paulus argues that the alleged prosecutorial misconduct in Paulus I, considered together
with his vacated judgment of acquittal and the Brady violation, require dismissal under the Double
Jeopardy Clause. We disagree.3
Prosecutorial misconduct and double jeopardy sometimes intersect. See Kennedy, 456 U.S.
at 676. The intersection, at least as currently explored, concerns mistrials. The general rule is that
when a defendant moves for a mistrial, the defendant waives his right to have his “trial completed
before the first jury empaneled to try him.” Id. at 673. The Kennedy exception is that a defendant
3
Paulus argues that the district court incorrectly held that he “waived” his double jeopardy objections by “consenting”
to a new trial. As far as waiver is concerned, the district court focused on cases involving mistrials and acquittals.
See, e.g., United States v. Scott, 437 U.S. 82, 99 (1978) (holding that the Double Jeopardy Clause doesn’t prohibit
retrial of a defendant after a defendant successfully moves for a mistrial because “[the defendant] was . . . neither
acquitted nor convicted, because he himself successfully undertook to persuade the trial court not to submit the issue
of guilt or innocence to the jury”). To Paulus, Burks v. United States disallows such waiver. In Burks, the Supreme
Court held that “the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence
legally insufficient.” 437 U.S. 1, 18 (1978). The Court said that one could not “waive his right to a judgment of
acquittal by moving for a new trial.” Id. (cleaned up).
But here, the jury found Paulus guilty and we held that the evidence was legally sufficient. There is no
judgment of acquittal for Paulus to waive because we reinstated the guilty verdict in Paulus I, and there was no
mistrial. Thus, Burks does not directly apply, and we don’t reach whether Paulus waived any double jeopardy
objection because we hold his substantive arguments to be without merit. See Ball v. United States, 163 U.S. 662,
672 (“[I]t is quite clear that a defendant who procures a judgment against him upon an indictment to be set aside may
be tried anew . . . for the same offense of which he had been convicted.”); see also United States v. Dinitz, 424 U.S.
600, 609 n.11 (1976) (“This Court has implicitly rejected the contention that the permissibility of a retrial following
a mistrial or a reversal of a conviction on appeal depends on a knowing, voluntary, and intelligent waiver of a
constitutional right.”).
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cannot be retried if the government intentionally “goads” a defendant’s mistrial motion because
the government wants a new trial. Id.; see Phillips, 668 F.3d at 811. But the bar is high. See
United States v. White, 914 F.2d 747, 752 (6th Cir. 1990) (holding that deliberate conduct borne
from prosecutorial inexperience that elicits a mistrial is insufficient). The question is whether the
government intentionally maneuvered in “an attempt . . . to seek a second bite at the apple.” United
States v. Foster, 945 F.3d 470, 475 (6th Cir. 2019).
We construe Paulus’s argument as encouraging us to import the Kennedy exception into
the Brady context and beyond the mistrial context. We decline the invitation for two reasons.
First, “we do not believe the [Double Jeopardy Clause] may be invoked to supplement the remedies
contemplated by Brady.” United States v. Coleman, 862 F.2d 455, 458 (3d Cir. 1988). The two
strands of case law cannot be combined in this way because they have different underpinnings.
Double jeopardy “places a premium upon the defendant’s right to one prosecution” while “due
process [(Brady)] simply requires that the defendant be treated fairly.” Id. at 458. Under Brady,
a defendant is treated fairly when the evidence is ultimately disclosed, so “the most an invocation
of Brady c[an] accomplish [is] the ordering of a new trial” that includes the new information.4
United States v. Davis, 578 F.2d 277, 280 (10th Cir. 1978); accord United States v. Lewis, 368 F.3d
1102, 1107 (9th Cir. 2004). Otherwise, the Double Jeopardy Clause would effectively prohibit
retrials after all Brady violations.
Second, even if we applied the Kennedy exception here, Paulus wouldn’t meet it. Courts
have discussed extending Kennedy beyond mistrials in dicta, but the intent requirement would
4
We recognize that in Government of Virgin Islands v. Fahie, the Third Circuit noted that “[w]hile retrial is normally
the most severe sanction available for a Brady violation, where a defendant can show both willful misconduct by the
government, and prejudice, dismissal may be proper.” 419 F.3d 249, 255 (3d Cir. 2005). But the court was quick to
note that the Double Jeopardy clause was likely not implicated. “[T]he Double Jeopardy Clause normally will not
limit the range of remedies available for a Brady violation” because a defendant would need to show that “the
government intentionally triggered a mistrial by withholding documents.” Id. n.8 (citing Kennedy, 456 U.S. at 676).
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remain. See United States v. Wallach, 979 F.2d 912, 916 (2d Cir. 1992) (assuming that a
prosecutor would have to intend to “prevent an acquittal that the prosecutor believed at the time
was likely to occur in the absence of his misconduct”). “[P]rosecutorial behavior will bar a second
trial only where such behavior was intentionally calculated to cause or invite mistrial.” United
States v. Thomas, 728 F.2d 313, 318 (6th Cir. 1984) (cleaned up), abrogated on other grounds by
United States v. Carroll, 26 F.3d 1380 (6th Cir. 1994); see Smith v. Coleman, 521 F. App’x 444,
448 (6th Cir. 2013) (noting Wallach’s dicta about the reach of Kennedy but reaffirming that “the
only relevant intent to the double jeopardy inquiry is the prosecutor’s intent to terminate the trial,
not intent to secure a conviction” (cleaned up)).
It’s hard to see how a Brady violation could meet the intent requirement. That would
necessitate a finding that the government failed to disclose material evidence (usually before trial)
to save a potential “second bite at the apple” (but only if necessary). See Foster, 945 F.3d at 475;
United States v. Ivory, 29 F.3d 1307, 1310 (8th Cir. 1994) (restating the district court’s reasoning
that “even if Oregon v. Kennedy applied [to Brady], [the] defendant made no showing that the
prosecution had attempted to invoke a mistrial” and holding that the defendant failed to state a
colorable double jeopardy claim); United States v. Colvin, 138 F. App’x 816, 821 (6th Cir. 2005)
(applying Kennedy’s intent test to a Brady violation and holding the test unmet).
But we need not decide whether the Kennedy exception can ever apply to Brady violations
because this case involves neither a mistrial nor intent by the prosecutor to place Paulus under new
jeopardy. First, the prosecution did not try to trigger a mistrial. Paulus focuses on the
prosecution’s nondisclosure of the Shields Letter to us in Paulus I. But in Paulus I, a jury had
already convicted Paulus. So the prosecution did not intend to trigger a new trial, thus putting
Paulus in new jeopardy, because they were seeking a reinstatement of the original conviction.
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Case No. 20-6017, United States v. Paulus
Second, as far as the potentially offensive prosecutorial misconduct that was the original Brady
violation, it was not intentional. The record shows that the prosecution wanted to disclose the
Brady material, but the district court ordered them not to. Paulus II, 952 F.3d at 722. That is not
intentional prosecutorial misconduct designed to trigger a new trial. So even if we applied the
Kennedy exception here, Paulus would not meet it.
IV.
The district court is AFFIRMED.
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