Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Kostenko

United States District Court, S.D. West Virginia, Beckley Division

April 17, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL KOSTENKO, D.O., Defendant.

          MEMORANDUM OPINION AND ORDER

          IRENE C. BERGER UNITED STATES DISTRICT JUDGE.

         The Court has reviewed the following pretrial motions filed by the Defendant: Motion to Suppress Death Scene Photographs (Document 48), Motion in Limine Regarding Administrative Actions (Document 51), Motion in Limine Regarding Patient Deaths (Document 52), Motion in Limine Relating to Confidential Informant Recordings (Document 53), Motion to Suppress References of Drug Use (Document 63), and Motion to Strike Surplusage from the Superseding Indictment (Document 65). The Court has also reviewed the Response of the United States to Defendant's Pretrial Motions (Document 72).

         The Defendant, Michael Kostenko, was a Doctor of Osteopathic Medicine at all relevant times. On November 29, 2016, the United States indicted him on seventeen counts of distribution of oxycodone not for legitimate medical purposes in violation of 21 U.S.C. § 841(a)(1), and three counts of distribution of oxycodone not for legitimate medical purposes, resulting in a death, in violation of 21 U.S.C. § 841(a)(1). Following a plea agreement that Mr. Kostenko signed, but declined to finalize during a plea hearing, the grand jury returned a Superseding Indictment (Document 54) on March 22, 2017. The superseding indictment charges Mr. Kostenko with maintaining a drug involved premises in violation of 21 U.S.C. § 856(a)(1), nineteen counts of distribution of oxycodone not for legitimate medical purposes in violation of 21 U.S.C. § 841(a)(1), and two counts of distribution of oxycodone not for legitimate medical purposes, resulting in a death, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). Though some motions were filed prior to the superseding indictment, the Court will address all motions as applied to the superseding indictment.

         A. Motion to Suppress Death Scene Photographs

         The Defendant argues that photographs allegedly showing patients who had died of drug overdoses are not relevant to the cause of death and do not “establish a nexus between Defendant's actions and their deaths.” (Mot. to Suppress Death Scene Photos, at 1.) The United States indicates that it intends to offer photographs of one patient who died in her home of a drug overdose, with a pill bottle with the Defendant's name on it near her hand. An expert who reviewed and relied upon the photos will testify regarding cause of death.

         Rule 403 of the Federal Rules of Evidence provides that relevant evidence may be excluded “if its probative value is substantially outweighed by danger of…unfair prejudice.” The Court finds it appropriate to view the contested photographs prior to ruling and no reference to or publication of the same shall occur prior to ruling. The motion to suppress the death scene photographs will be held in abeyance pending the United States providing the photographs to the Court for review.

         B. Motion in Limine Regarding Patient Deaths

         The Defendant seeks to preclude the United States from introducing evidence of uncharged deaths of patients as irrelevant under Rule 402, unduly prejudicial under Rule 403, and improper evidence of other bad acts under Rule 404(b). The United States indicates that it intends to offer evidence regarding the overdose deaths of patients 1 and 5, whose deaths he is charged with causing. It also intends to offer evidence of the overdose deaths of patients 4, 8, 14, 15, and 19, to whom he is charged with illegally distributing oxycodone, and each of whom died of an overdose between 2013 and 2016.[1] It argues that patient overdose deaths are red-flag evidence supporting a finding that a doctor is acting outside the bounds of medicine, and it intends to offer related expert testimony. The United States asserts that the evidence is admissible as substantive evidence under Rule 401, and is not introduced pursuant to Rule 404(b).

         The Court finds that the patient deaths are potentially relevant to the requirement that the jury find that the distribution was “not for legitimate medical purposes in the usual course of professional medical practice and beyond the bounds of medical practice.” See, e.g., United States v. Hurwitz, 459 F.3d 463, 475 (4th Cir. 2006); 21 C.F.R. § 1306.04 (regulations affecting controlled substance prescriptions). Patient deaths could also be relevant to rebut a “good faith” defense and to show knowledge that the prescriptions were outside the standards of medical practice. However, the United States has charged Mr. Kostenko with causing the deaths of Patients One and Five. Evidence regarding other, uncharged overdose deaths has the potential to be both unfairly prejudicial and confusing to the jury. The Fourth Circuit has recognized the risk of convictions based on “association” in cases with many related charges-that a jury will see a pattern of behavior and convict for individual counts that were not properly proved. United States v. Tran Trong Cuong, 18 F.3d 1132, 1141 (4th Cir. 1994) (“it concerns us that, as to these 80 counts, defendant may have been found guilty of some counts by association-the association of the counts properly proved with those that were not”). The Court finds that the potential for unfair prejudice and confusion substantially outweighs the probative value of the uncharged patient deaths, and, therefore, the motion in limine to exclude evidence of uncharged patient deaths should be granted.[2]

         C. Motion in Limine Relating to Confidential Informant Recordings

         The Defendant requests an order barring the United States from introducing recordings made by confidential informants, primarily in 2010. The United States indicates that it “does not intend to use confidential informant or undercover recordings during its case in chief, ” but “reserves the right to use such evidence on cross examination of defendant or in its rebuttal case.” (Resp. at 19.) Accordingly, this motion should be terminated as moot.

         D. Motion to Suppress References of Drug Use

         The Defendant moves, pursuant to Rules 401 and 403, to exclude any reference to the Defendant's purported illegal drug use. The United States describes the proposed evidence as testimony from former employees and former patients (whose prescriptions are included in the superseding indictment) that the Defendant used “marijuana and/or cocaine with active patients during relevant dates within the Superseding Indictment, ” including while prescribing them oxycodone. (Resp. at 20; emphasis in original.) The Court finds that evidence of illegal drug use by the Defendant in the presence of patients and/or with patients is relevant to the question of whether he prescribed medication to those patients for legitimate medical purposes in the usual course of professional medical practice and within the bounds of medical practice. Therefore, the motion to suppress such evidence should be denied.

         E. Motion in Limine Regarding ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.