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Date: 12-08-2021

Case Style:

United States of America v. Richard E. Paulus

Case Number: 19-5532

Judge: David McKeague


Appeal from the United States District Court for the Eastern District of Kentucky at Ashland.

Plaintiff's Attorney: David Lieberman, UNITED STATES DEPARTMENT OF JUSTICE

Defendant's Attorney:

Cincinnati, Ohio - Best Criminal Defense Lawyer Directory


Cincinnati, Ohio - Criminal defense lawyer represented defendant with healthcare fraud and making false statements relating to healthcare matters chargeS.

For years Paulus was a successful cardiologist at King’s Daughters Medical Center
(KDMC). He performed an incredible number of angiograms and was “first in the nation for the
total amount billed to Medicare for these procedures.” United States v. Paulus, 894 F.3d 267,
272 (6th Cir. 2018) (Paulus I). But not all was well. Complaints emerged that Paulus was
performing medically unnecessary procedures. And several audits indicated that in multiple
cases Paulus had reported a higher degree of blockage in his patients’ arteries than their
angiograms reflected. Id. at 272–73. Meaning, in some cases, the patient’s angiogram showed a
low degree of blockage and thus that the patient didn’t need a stent inserted. Yet Paulus reported
a much more severe blockage, inserted a stent, and then billed patients and their insurance
companies for the stent procedure. See id. at 273.1
Eventually, these allegations reached the federal government. At first, the government
considered entering into a civil settlement with Paulus. In a letter setting forth its demands, the
government stated that its consultants had reviewed 496 of Paulus’s procedures and concluded
that 146 of them (or about 30%) were unnecessary because the patients’ angiograms showed
minimal arterial blockage. The government further noted that its experts weren’t the only ones
who found Paulus’s procedures to be problematic: the letter explained that KDMC’s “consultants
[had] also reviewed a random selection of Dr. Paulus’ procedures, and found 75 angiographic
films with [minimal blockage] in the artery he stented.” But after some back-and-forth, the
attempts at a civil settlement fell through, and the government obtained an indictment.
1We gave a more thorough background on the medical science and Paulus’s conduct in our earlier opinion.
Paulus I, 894 F.3d at 271–74.
No. 19-5532 United States v. Paulus Page 3
At trial the government called three expert witnesses, Drs. Ragosta, Morrison, and
Moliterno, who showed angiograms from 72 different patient files to the jury. Id. at 273–74.
While displaying each angiogram, the doctors diagnosed the amount of blockage in the patient’s
artery and contrasted their diagnosis with that stated in Paulus’s report. Based on the differences
between what the government’s experts saw in the angiograms and what Paulus reported, the
experts concluded that Paulus overstated his patients’ arterial blockage and inserted medically
unnecessary stents. They also emphasized that this was not “an isolated case[.]” Instead,
Ragosta presented evidence of overstatements in 62 out of the 250–300 cases he reviewed, and
he called the 62 cases a “representative sample”; Morrison noted that over half of the
11 randomly selected procedures he reviewed were unnecessary; and Moliterno asserted that all
of the stent procedures he reviewed were unnecessary. Based on this testimony, the government
argued that Paulus “saw one thing on the angiogram and consciously wrote down another.” Id.
at 276. And he didn’t just do it occasionally. According to the government’s closing argument,
Paulus did it “frequently, repetitive[ly], daily.”
After 23 days of trial, four days of jury deliberations, one judicial pep talk, and one Allen
charge, the jury convicted Paulus of one count of healthcare fraud and ten counts of making false
statements relating to healthcare. But the case didn’t proceed to sentencing. The district court
vacated the convictions, finding that there was insufficient evidence both that Paulus made false
statements and that he had fraudulent intent. But that didn’t stand. We disagreed with the
district court’s reasoning and reversed its order. Paulus I, 894 F.3d at 280.
The plot twisted once more. After remand and before sentencing, the government
disclosed to Paulus for the first time the “Shields Letter.” According to the letter, when KDMC
was facing its own legal trouble, it hired a team of independent experts to review Paulus’s work
(“KDMC Review”). KDMC’s consultants reviewed 1,049 of Paulus’s cases and flagged 75 of
his procedures as unnecessary. In the Shields Letter, KDMC’s attorneys explained to the
No. 19-5532 United States v. Paulus Page 4
government their consultants’ findings and offered to refund Medicare for the payments the
hospital had collected for the 75 flagged procedures.
While Paulus already knew that KDMC had identified 75 of his procedures as
problematic, he did not know that KDMC consultants had reviewed 974 other procedures that
they apparently found non-problematic. The defense viewed this evidence as exculpatory
because it meant that the KDMC Review found that the rate of unnecessary surgeries, 75 out of
1,049, or about 7%, was far lower than what the government experts had testified at trial; this
lower percentage was less consistent with systemic and purposeful fraud and more consistent
with occasional mistakes or diagnostic differences of opinion between cardiologists. Seeking
more information, Paulus moved to compel the government to produce all information related to
the letter.
It was only then that the defense got the full picture. The government disclosed to Paulus
a series of events that had taken place before his trial. Long before Paulus was indicted, KDMC
sent the government the Shields Letter. And when the government later elected to charge
Paulus, it planned to use the Shields Letter in its case-in-chief and to disclose the letter to Paulus.
But KDMC objected, arguing that the letter was both privileged and inadmissible. So, about a
month before trial, the government brought the dispute to the district court, and the court
scheduled an ex parte hearing, so as to protect KDMC’s asserted privilege.
But even though privilege was ostensibly the reason for holding the hearing ex parte, the
district court made no decision regarding the privilege issue. The court opened the hearing by
saying it would put privilege aside and decide instead whether the information was inadmissible
under Federal Rule of Evidence 408. The government argued that the letter was admissible.
And to its credit, the government also argued that even if the letter wasn’t admissible, the
government was obligated to disclose it to Paulus under Brady. Although the government
wished to introduce evidence of the KDMC Review at trial for its inculpatory value, it also
recognized that the review had exculpatory value to Paulus. But the district court was
unconvinced. It held that the information was inadmissible—a ruling that both parties now agree
was wrong—and that the government wasn’t obligated to turn it over to Paulus. And even
though it made no ruling on privilege, the district court concluded the hearing by inexplicably
No. 19-5532 United States v. Paulus Page 5
ordering that the parties “[we]re not to disclose” any more information about the KDMC Review
to Paulus.
Having discovered this information after his trial, conviction, and remand from this court,
Paulus moved for a new trial. The district court rejected Paulus’s arguments and proceeded to
sentencing. It sentenced Paulus to five years’ imprisonment and ordered him to pay
$1,156,102.23 in restitution.
On appeal, Paulus challenges the ex parte hearing as violating his Sixth Amendment right
to counsel, the ruling on the admissibility of the Shields Letter as a reversible evidentiary error,
and the failure of the government to disclose the letter as a violation of his due process rights
under Brady. He also challenges the district court’s Allen charge and restitution order. We start
and end by addressing his constitutional claims.
Paulus argues that the ex parte hearing in the district court violated his Sixth Amendment
rights. Under the Sixth Amendment, criminal defendants have the right to the assistance of
counsel for their defense. U.S. Const. amend. VI. Thus, when defense counsel is excluded from
a critical stage of a criminal proceeding, it is a per se Sixth Amendment violation. United States
v. Cronic, 466 U.S. 648, 659 n.25 (1984). In Van v. Jones, we explained that a stage is critical
when “there [is] a reasonable probability that [the defendant’s] case could suffer significant
consequences from his total denial of counsel at that stage.” 475 F.3d 292, 313 (6th Cir. 2007).
Paulus contends that the ex parte hearing in the district court was just such a critical stage. The
government doesn’t disagree; rather, the government argues that ex parte hearings are generally
permissible to resolve privilege disputes.
There is something to the government’s argument. According to our precedent, the
government can sometimes justify ex parte proceedings that would otherwise violate the Sixth
Amendment. Relevant to this case, the government can justify ex parte proceedings by showing
that there was a compelling state interest for holding the proceedings ex parte, United States v.
Barnwell, 477 F.3d 844, 850 (6th Cir. 2007); United States v. Minsky, 963 F.2d 870, 874 (6th
Cir. 1992); the proceedings were narrowly tailored to that compelling state interest, Barnwell,
No. 19-5532 United States v. Paulus Page 6
477 F.3d at 851; and the defendant was not prejudiced by the ex parte proceedings, id; Minsky,
963 F.2d at 874.2 The government contends that the court had to hold the hearing ex parte,
because there is a compelling state interest in protecting attorney-client privilege.
We are not convinced that the ex parte hearing in this case was permissible for at least
three reasons.
First, even if we assume that attorney-client privilege is a compelling state interest that
can justify ex parte communications, the district court said from the outset that it would not
decide the privilege issue. It put privilege to the side and decided issues of admissibility and
discoverability instead. And “[i]f ex parte communications are to be allowed at all, they must
continue no further than the extent to which they are absolutely necessary to protect the state’s
compelling interest.” Barnwell, 477 F.3d at 851. This hearing continued much further than
necessary. The district court put aside the issue that would have determined whether a state
interest existed at all. And as it turns out, the parties agree that the letter was neither privileged
nor inadmissible.
Second, the district court made no attempt to involve the defense. The court could have
ordered the government to give Paulus a broad outline of the privilege and admissibility issues,
without disclosing the Shields Letter. With limited information, the defense could have mounted
arguments that the letter was both non-privileged and admissible. See United States v. Lloyd,
400 F.2d 414, 416 (6th Cir. 1968); see also Moeller v. Harris, 428 F. App’x 771, 773–74 (9th
Cir. 2011). Privilege logs aren’t unheard of in criminal proceedings, and one could have been
used here. Cf. In re Grand Jury Subpoenas, 454 F.3d 511, 524 (6th Cir. 2006). Further, without
telling the defense any details at all, the court could have asked the defense to explain its trial
strategy, which would have provided helpful context for the court’s Brady analysis. See United
States v. Amawi, 695 F.3d 457, 472 (6th Cir. 2012) (“We should stress that the district court also
2Arguably, this prejudice prong is in tension with Van’s per se violation holding. Van, 475 F.3d at 311–12
(“It is settled that a complete absence of counsel at a critical stage of a criminal proceeding is a per se Sixth
Amendment violation warranting reversal of a conviction, a sentence, or both, as applicable, without analysis for
prejudice or harmless error.” (emphasis added)). At oral argument, Paulus cited Van for the proposition that he did
not need to show prejudice and that we should not perform harmless error review. In response, the government cited
Minsky for the proposition that we do look to prejudice. Minsky, 963 F.2d at 874. However, we need not resolve
this tension (if there is any) because we are disposing of this case on other grounds. See infra Part III.
No. 19-5532 United States v. Paulus Page 7
held ex parte hearings with defense counsel in order to learn about their theories and prepare for
ex parte hearings with the government.”). Thus, without vitiating KDMC’s asserted privilege,
the district court could have sought the defense’s input in multiple ways. The court didn’t do
that. Instead, it kept Paulus in the dark about the issues and considered only the arguments made
by the government and KDMC, which had interests divergent from Paulus’s.
Third, the risks of proceeding ex parte were realized in this case. Ex parte hearings are
problematic because “the Court does not have available the fundamental instrument for judicial
judgment: an adversary proceeding in which both parties may participate.” Carroll v. President
& Comm’rs of Princess Anne, 393 U.S. 175, 183 (1968); see also United States v. Carmichael,
232 F.3d 510, 517 (6th Cir. 2000) (calling ex parte hearings with the government a “dangerous
procedure” (quoting Minsky, 963 F.2d at 874)). Thus, when a court rules on important issues
without hearing from the defense, it takes the risk of making erroneous decisions that will
unfairly disadvantage the defendant. That’s exactly what happened here. First, the district court
ruled that the Shields Letter was inadmissible. The parties agree that was wrong. Second, the
district court determined that because the letter was inadmissible, it couldn’t be Brady material.
That is flatly wrong. Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d 450, 465–66 (6th Cir.
2015). Third, the district court ordered the government and KDMC not to disclose the Shields
Letter to Paulus. That was wrong too: neither the erroneous admissibility ruling nor the
erroneous discoverability ruling could justify that instruction.
Thus, even if there are cases where attorney-client privilege claims can justify ex parte
hearings, we are not convinced that this was one of those cases. Nevertheless, we need not
decide whether the ex parte hearing was permissible, because we find that the evidence withheld
from Paulus, based on the district court’s erroneous order, violated his Fifth Amendment rights
under Brady.
Paulus alleges that the prosecution’s failure to disclose the Shields Letter violated his
Fifth Amendment due process rights under Brady. We agree. We review Brady claims de novo.
United States v. Tavera, 719 F.3d 705, 710 (6th Cir. 2013).
No. 19-5532 United States v. Paulus Page 8
The Brady inquiry has three prongs: “The evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is impeaching; that evidence must have
been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.”
Strickler v. Greene, 527 U.S. 263, 281–82 (1999). But there is “no Brady violation where a
defendant ‘knew or should have known the essential facts permitting him to take advantage of
any exculpatory information.’” United States v. Castano, 906 F.3d 458, 466 (6th Cir. 2018)
(quoting United States v. Clark, 928 F.2d 733, 738 (6th Cir. 1991)).
The government concedes that the Shields Letter had “potential exculpatory value,” and
that “[n]o dispute exists on the threshold prong.” It also admits that it failed to disclose “one
specific fact: ‘the sample size of stent procedures reviewed’ by KDMC.” Thus, there are two
issues for us to resolve on appeal: (1) whether Paulus knew or should have known the essential
facts about the KDMC Review and (2) whether the prosecution’s omission caused prejudice.
The prosecution is not obligated under Brady to disclose information to the defense that
the defense already “knew or should have known.” Castano, 906 F.3d at 466 (quoting Clark,
928 F.2d at 738). The government argues that Paulus knew the essential facts described in the
Shields Letter and that he could have gathered the missing detail (the sample size) with “minimal
investigation.” Jalowiec v. Bradshaw, 657 F.3d 293, 311 (6th Cir. 2011) (quoting Coleman v.
Mitchell, 268 F.3d 417, 438 (6th Cir. 2001)). The prosecution had informed Paulus in a letter
that KDMC consultants reviewed a random sample of Paulus’s procedures and flagged 75 as
unnecessary. According to the government, based on this information, Paulus could and should
have gathered the missing detail—the sample size—by simply asking KDMC.
We would have to completely ignore the record to accept the government’s argument
here. After all, it was KDMC that opposed the government’s disclosing the Shields Letter to
Paulus in the first place. And it was KDMC that argued that the Shields Letter was privileged
and inadmissible. Thus, it is not reasonable to assume that Paulus would only have had to ask
KDMC in order to get the missing details. The government points out that KDMC was wrong
and the Shields Letter wasn’t privileged; so presumably, even if the hospital initially refused to
No. 19-5532 United States v. Paulus Page 9
give Paulus the missing details, Paulus could have sought a subpoena. But even if the
government is right about that, the question is not whether Paulus could have eventually obtained
the omitted information. Brady “does not [allow] the State simply to turn over some evidence,
on the assumption that defense counsel will find the cookie from a trail of crumbs.” Barton,
786 F.3d at 468. Thus, the question is whether Paulus would have had to follow a long trail of
crumbs to get the missing details or whether he could have gotten the same information with
minimal investigation.
Our prior cases give helpful examples of what constitutes minimal investigation. The
government cites two in particular. In United States v. Castano, we held that a defendant who
knew about a witness’s indictments should have searched the public record to find the witness’s
convictions. 906 F.3d at 466. In Stojetz v. Ishee, we held that a capital defendant who knew he
had been stabbed in prison and that the prison had medical records should have acquired his own
prison medical records. 892 F.3d 175, 205–06 (6th Cir. 2018). These are examples of minimal
investigation, because a simple search or request, without more, would provide the information
sought. Seeking a subpoena and fighting KDMC’s privilege assertions rises to a level beyond
minimal investigation.
Moreover, it seems unreasonable to expect much investigation at all, given that Paulus
had no reason to think that the KDMC Review held exculpatory value. While Paulus knew that
KDMC had hired independent consultants to review his procedures, he had no idea that any
relevant information would be exculpatory. The information as given to him and used by the
government seemed facially inculpatory. All he knew was that the hospital had flagged
75 procedures as problematic and that the government was using that information to its
advantage. Paulus had no reason to follow the trail of crumbs in search of a cookie, unlike the
defendants in Castano and Stojetz to whom the potential for favorable evidence should have been
The government also argues that Paulus could have gotten his own expert to perform a
review of his procedures, but that is even further from minimal investigation. If its other
argument suggested that Paulus should have followed a trail of crumbs in search of a cookie, this
argument suggests that Paulus should have just made his own cookie, because he had the same
No. 19-5532 United States v. Paulus Page 10
ingredients. And even if we agreed that Paulus should have made his own cookie, that misses a
larger point: his own expert wouldn’t necessarily have provided Paulus the same information the
Shields Letter offered. The government’s argument is akin to saying that the prosecution doesn’t
have to disclose an exculpatory statement by one eyewitness because the defense could have just
asked another eyewitness. It’s not a given that two witnesses saw the same thing or that their
testimony would be equally exculpatory. So it is with experts. That experts can review samples
drawn from the same pool and reach different conclusions is clearly evidenced by the
dramatically different conclusions reached by the government’s experts compared to the
hospital’s experts.
Because Paulus had no reason to think the KDMC Review held any exculpatory value
and because he lacked a readily available means to get the missing details, we find that he didn’t
have the essential facts.
The other issue is prejudice. In order to prove that prejudice ensued from the
government’s withholding of the Shields Letter, Paulus must prove that the evidence was
material. Meaning, Paulus must prove that “there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been different.”
Strickler, 527 U.S. at 280 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).
“The question is not whether the defendant would more likely than not have received a different
verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence.” Id. at 289–90 (quoting Kyles v. Whitley, 514 U.S.
419, 434 (1995)). The revelation of the Shields Letter and the missing details from the KDMC
Review undermines our confidence in the verdict, and thus we find that withholding them
prejudiced Paulus.
The argument that the omitted details from the Shields Letter were material is fairly
simple. Because the KDMC Review found misdiagnoses in a much smaller percentage of cases
than the government experts found (around 7% compared to nearly 50%), the study tends to
refute the government’s evidence that Paulus systematically misdiagnosed the amount of
No. 19-5532 United States v. Paulus Page 11
blockage in his patients’ arteries. Instead, he may have made occasional mistakes or had
occasional differences of opinion. And if Paulus didn’t systematically overstate his patients’
arterial blockages, then that weakens the government’s evidence that Paulus intentionally
defrauded his patients, their health insurance companies, and the government.
Paulus also could have used the Shields Letter to impeach the government’s witnesses by
calling into question how representative their samples were. The government experts testified
that Paulus repeatedly and systematically overstated the degree of blockage in his patients’
arteries. Paulus I, 894 F.3d at 274. But Morrison and Moliterno each evaluated fewer than
20 procedures. Id. Given the Shields letter, Paulus could have pointed out that KDMC’s much
more extensive review found that Paulus misdiagnosed his patients less than 8% of the time.
And while Ragosta reviewed 250–300 of Paulus’s procedures, that is still far fewer than
the 1,049 reviewed by KDMC. Id. Furthermore, Ragosta’s sample was not random; 75 of the
250–300 files reviewed by Ragosta were selected for review because KDMC flagged them as
problematic. Armed with the fact that KDMC pulled those 75 from a sample of 1,049, Paulus
may have argued that Ragosta’s sample was cherry-picked.
This weakening of the government’s evidence regarding Paulus’s intent is especially
important because there are several indications in the record that Paulus’s intent was a close
issue. First, the jury deadlocked twice. Second, the district court vacated Paulus’s conviction, in
part because it found that the government had failed to prove Paulus’s fraudulent intent. United
States v. Paulus, No. CR 15-15-DLB-EBA, 2017 WL 908409, at *14 (E.D. Ky. Mar. 7, 2017).
And although this panel reversed the district court’s order and reinstated the jury’s verdict, we
still recognized that based on the evidence presented at trial—which did not include the Shields
Letter or KDMC Review, of which we had no knowledge—a reasonable jury could conclude that
Paulus didn’t have fraudulent intent. Paulus I, 894 F.3d at 276–77. We recognized that a
reasonable jury could have gone either way, but that in such cases, we uphold the jury’s verdict.
Id. Since Paulus’s intent was a close issue, and the Shields Letter would have given Paulus
ammunition to rebut the government’s evidence of his intent, we find that its omission
prejudiced him.
No. 19-5532 United States v. Paulus Page 12
The government disagrees; it argues that “[o]n balance, the [Shields Letter] would have
bolstered the government’s case and significantly damaged Paulus’s defense strategy.” The
government argues that the letter was inculpatory because it was another source confirming that
Paulus performed medically unnecessary stent procedures. But the government “presented a
phalanx of experts” at trial who testified to the same thing. Paulus I, 894 F.3d at 277. Thus, the
Shields Letter would have added only marginal value to the government’s case: it would be one
more voice chiming in to say that Paulus performed some medically unnecessary procedures.
Furthermore, this does nothing to bolster the government’s evidence of Paulus’s intent, which is
the close issue impacted by the exculpatory nature of the letter. The fact that the KDMC
consultants reviewed Paulus’s procedures and, like the government’s experts, determined that he
sometimes overstated his patient’s arterial blockage doesn’t add any additional proof that the
overstatements were intentional.
The government also argues that the Shields Letter would have “shattered Paulus’s key
storyline” that he was a brilliant doctor being treated unfairly by the government. But Paulus
could have changed his defense strategy if he’d been given this evidence before trial. In fact, the
government recognized this much at the ex parte hearing, as part of its argument that it was
obligated under Brady to disclose the Shields Letter to Paulus. Furthermore, it doesn’t seem that
the Shields Letter really is incompatible with the defense Paulus presented at trial. Paulus could
have plausibly argued both that he was an excellent doctor and that excellent doctors still make
mistakes sometimes or disagree with other excellent doctors. It’s hard to see why Paulus
couldn’t have successfully incorporated the Shields Letter into his defense at trial, and so the
government’s argument that the letter shattered his defense fails.
The government’s arguments that the Shields Letter was only minimally exculpatory are
similarly unconvincing. The thrust of the government’s arguments is that the jury wouldn’t have
credited the KDMC Review. First, the government argues that a jury wouldn’t have credited the
KDMC Review because it was done by the hospital “in order to mitigate its own liability.” But
that argument proves too much. After all, the government’s main expert, Dr. Ragosta, was
retained by an interested party (the government) in preparation for litigation. If the jury should
not have credited KDMC’s consultants, because they were retained by an interested party and
No. 19-5532 United States v. Paulus Page 13
therefore biased, then they also shouldn’t have credited Dr. Ragosta for the very same reason.
Moreover, if the government is right, then juries shouldn’t believe most experts who testify at
trial. The government also says a jury wouldn’t credit the KDMC Review because the KDMC
consultants reviewed a sample from 2009–2010, while Paulus’s criminal conduct spanned
between 2008–2013. But this isn’t persuasive, since a large majority of the procedures discussed
by the prosecution’s experts also came from 2009–2010.
We do sympathize with the prosecution, because we recognize that 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. But “[i]rrespective of the good faith or bad faith of the
prosecution,” the failure to disclose favorable, material evidence to the defense violates due
process. United States v. Agurs, 427 U.S. 97, 110 n.17 (1976) (quoting Brady, 373 U.S. at 87).
Because Brady is about the fairness of the trial and not about ferreting out the “misdeeds of a
prosecutor,” it doesn’t matter how blameless or blameworthy the prosecution might have been.

Outcome: Because we find that the proceedings in the district court violated Paulus’s Fifth
Amendment right to due process, we VACATE his conviction and REMAND for a new trial.

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