USA v. Donatus O. Mbanefo

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13693
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONATUS O. MBANEFO,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:16-cr-00002-HL-TQL-6
____________________
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2 Opinion of the Court 21-13693
Before BRANCH , G RANT, and B RASHER , Circuit Judges.
PER CURIAM:
Almost three years after a jury convicted physician Donatus
Mbanefo for abusing his ability to prescribe controlled substances,
he filed a motion for new trial. The district court denied the
motion, holding that his claims of error lacked merit and were not
based on newly discovered evidence. After careful review, we
affirm.
I.
Donatus Mbanefo was convicted by a jury of conspiracy to
unlawfully dispense Schedule II, III, and IV controlled substances
and unlawful dispensation of controlled substances. 21 U.S.C.
§§ 846; 841(a)(1), (b)(1)(C), (b)(1)(E), (b)(2). Mbanefo had worked
as a physician at the Relief Institute of Columbus. But that pain
management clinic, as revealed at Mbanefo’s trial, was merely a
façade for a pill mill, handing out prescriptions without legitimate
medical purpose. The Drug Enforcement Administration caught
on to the clinic because pharmacies and former physicians reported
the suspicious prescriptions and practices.
The DEA investigation revealed that patients would often
travel in groups from all over the country to be seen at the clinic,
receive large opioid prescriptions in exchange for cash payments,
and then travel to pharmacies in other states to fill the
prescriptions. The clinic would often schedule large numbers of
patients and stay open late into the night to accommodate all of
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21-13693 Opinion of the Court 3
them. Expert physician witnesses, reviewing records of patient
visits, testified at trial that Mbanefo failed to properly check
patients’ prescription histories, failed to perform sufficient physical
examinations or testing, and prescribed aberrant quantities of
opioids.
The government also introduced at trial evidence extracted
from over 75 boxes of patient files the DEA seized when it closed
the clinic. A DEA agent testified how a team of analysts uploaded
the medical and prescription data from the patient files into an
Excel spreadsheet. In Excel, the government used the “pivot table”
tool to make summary charts displaying the types and quantities of
prescriptions Mbanefo wrote—most of which were for Schedule II
drugs like oxycodone. Mbanefo through counsel objected to these
summary charts, arguing that they were not admissible because the
patient files had been neither “admitted nor presented to the jury.”
The district court asked whether the government had shared the
75 boxes of patient files and the Excel spreadsheet with him, and he
conceded that the government had, so the district court admitted
the summary charts.
Based on this and other evidence, the jury found Mbanefo
guilty, and the district court sentenced him to 96 months’
imprisonment. On direct appeal, Mbanefo argued that the
evidence was insufficient to sustain his conviction, that the district
court gave an improper jury instruction, and that the court’s drug-
quantity finding at sentencing was clearly erroneous.
United States
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4 Opinion of the Court 21-13693
v. Bacon, 809 F. App’x 757, 759–61 (11th Cir. 2020) (unpublished).
This Court affirmed his conviction and sentence.
Id. at 761.
Mbanefo launched a collateral attack a few months later,
filing a 28 U.S.C. § 2255 motion where he raised several claims of
ineffective assistance of counsel. The district court denied the
motion, then this Court granted a certificate of appealability as to
two claims. We do not address here the claims raised in that
separate appeal of the § 2255 motion.
While his § 2255 motion was still pending before the district
court, Mbanefo also filed a motion for new trial. The district court
denied that new-trial motion, and Mbanefo now appeals.1
II.
“We review a district court’s denial of a motion for new trial
for abuse of discretion.”
United States v. Campa, 459 F.3d 1121,
1151 (11th Cir. 2006) (en banc).
III.
“Motions for a new trial based on newly discovered
evidence are highly disfavored in the Eleventh Circuit and should
be granted only with great caution. Indeed, the defendant bears
the burden of justifying a new trial.”
Id. (quotation omitted). “Any
motion for a new trial grounded on any reason other than newly
discovered evidence must be filed within 14 days after the verdict
1 Mbanefo asks this Court for leave to file an amended reply brief because the
original exceeded the word limit. That motion is GRANTED.
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21-13693 Opinion of the Court 5
or finding of guilty.” Fed. R. Crim. P. 33(b)(2). Mbanefo filed his
new-trial motion nearly three years after trial and thus must base
his motion on newly discovered evidence. Fed. R. Crim. P.
33(b)(1). To do so, he must establish that: (1) the evidence was
discovered after trial, (2) is material, and (3) is not merely
cumulative or impeaching.
United States v. Caldwell, 963 F.3d
1067, 1078–79 (11th Cir. 2020). He must also show that (4) his
failure to discover the evidence was not due to lack of diligence and
(5) the evidence is of such a nature that a new trial would probably
produce a different result.
Id.
Mbanefo makes three main arguments: a juror misconduct
claim; a suppression claim under
Brady v. Maryland, 373 U.S. 83
(1963) and
Giglio v. United States, 405 U.S. 150 (1972); and a
selective prosecution claim. Because the claims are not premised
on newly discovered evidence and he forfeited the selective
prosecution claim, none of them justify a new trial.
According to Mbanefo, five months after trial he learned
that his trial counsel knew a juror “personally”—several years
earlier, counsel had brought a successful 42 U.S.C. § 1983 case
against the juror’s “brother who was a Georgia State Trooper.”
Mbanefo argued that “with this background knowledge” his
counsel was wrong to allow her “to be empaneled” on the jury and
that the juror was biased against him because she hid the fact that
“she was related to a law enforcement officer” and “was familiar
with the trial counsel.”
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6 Opinion of the Court 21-13693
But as Mbanefo admits, these facts were not discovered after
trial. In fact, he protests that his attorney recognized her at trial
and chose not to strike her from the jury. Mbanefo claims only that
his attorney did not share the information with him until after the
trial. And that lack of communication does not amount to newly
discovered evidence. A “defendant is ‘deemed bound by the acts
of his lawyer-agent and is considered to have notice of all facts,
notice of which can be charged upon the attorney.’”
New York v.
Hill, 528 U.S. 110, 115 (2000) (quoting
Link v. Wabash R.R. Co.,
370 U.S. 626, 634 (1962)). Because Mbanefo through his counsel
was fully aware of any juror misconduct before trial, it is not newly
discovered evidence.2
And the claim would have failed on the merits regardless. A
dishonest juror response to “a material question on
voir dire”
warrants a new trial only when the defendant also presents proof
of “actual bias,” either “by express admission or by proof of specific
facts showing such a close connection to the circumstances at hand
that bias must be presumed.”
United States v. Carpa, 271 F.3d 962,
967 (11th Cir. 2001). Mbanefo has not even shown that the juror
recognized his trial counsel’s connection to the prior § 1983 action,
let alone any actual bias. And the fact that her brother worked in
law enforcement is not so related to Mbanefo’s unlawful
2 Mbanefo also raises an “actual innocence” claim, restyled before this Court
as an “insufficient evidence” claim, but it fails for the same reason—it is not
based on newly discovered evidence.
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21-13693 Opinion of the Court 7
prescribing that we must presume bias exists. The district court
thus did not abuse its discretion when it denied the motion for new
trial based on juror misconduct.
Mbanefo also argues that the government unlawfully
suppressed
Brady evidence because it did not share the “Pivot
Table” that summarized the clinic physicians’ prescribing data. He
claims that the table would have proved that Mbanefo was not
“one of the top 2 prescribers at the time [he] was charged in the
original indictment” and that he was not “one of the top 3
prescribers at the time the superseding indictment was returned.”
To make out a
Brady claim, a defendant must show that (1) the
government withheld evidence favorable to the defendant; (2) the
defendant did not possess and could not obtain that evidence with
any reasonable diligence; and (3) had the government disclosed the
evidence, there is a reasonable probability that the outcome would
have been different.
United States v. Vallejo, 297 F.3d 1154, 1164
(11th Cir. 2002).
Mbanefo relatedly claims that the failure to produce the
table resulted in
Giglio error. He says it would have revealed that
the prosecutor made false statements that Mbanefo was one of the
clinic’s “top three prescribers.” To establish
Giglio error, a
defendant must (1) “identify evidence the government withheld”
that would have revealed that the statements were false, (2)
establish that the government “knowingly used perjured
testimony” or failed to correct what it “subsequently learned was
false testimony,” and (3) show that “such use was material” to the
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8 Opinion of the Court 21-13693
judgment.
United States v. Stein, 846 F.3d 1135, 1147 (11th Cir.
2017) (quotation omitted).
Both claims fail for the same reason: the government did not
withhold the evidence, despite what Mbanefo says to the contrary.
As the government’s witness explained, a “pivot table” is “a tool”
built into Excel “that helps you summarize or visualize” data in a
spreadsheet. And no one disputes that the government provided
both the 75 boxes of patient data and the Excel spreadsheet
compiling that patient data to Mbanefo. Because that spreadsheet
contained all the data Mbanefo wanted from the “Pivot Table”—
including the prescribing records for the other physicians at the
clinic—his
Brady claim and his
Giglio claim fail. Mbanefo cannot
complain because, with reasonable diligence, he could have
analyzed the spreadsheet data himself.
See United States v. Jordan,
316 F.3d 1215, 1253 (11th Cir. 2003).
Mbanefo finally argues for a new trial on selective
prosecution grounds, claiming that he “was prosecuted because of
his age and race.” But “a claim of selective prosecution is not the
proper subject of a Rule 33(b)(1) motion for a new trial” because it
“has no bearing on the integrity of the trial or the verdict.”
United
States v. Scrushy, 721 F.3d 1288, 1305 (11th Cir. 2013).
Besides that, Mbanefo forfeited the claim by failing to raise
it before trial. The defense of selective prosecution “must be raised
by pretrial motion if the basis for the motion is then reasonably
available.” Fed. R. Crim. P. 12(b)(3)(A)(iv). If a defendant fails to
do so, “the motion is untimely” and may not be considered unless
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21-13693 Opinion of the Court 9
he can show “good cause” for the delay. Fed. R. Crim. P. 12(c)(3).
Mbanefo argues that the government withheld necessary
information about whether other doctors worked at the clinic for
a similar period or produced similar quantities of unlawful
prescriptions. But as we explained above as to his
Brady and
Giglio
claims, Mbanefo had access to these facts before trial. He thus
cannot show good cause for failing to raise a timely selective
prosecution defense.
See Scrushy, 721 F.3d at 1306.3
* * *
Because Mbanefo seeks a new trial without producing newly
discovered evidence to support his request, the court properly
exercised its discretion to deny the motion. The district court’s
order is AFFIRMED.
3 Along with the motion for new trial, Mbanefo also filed a motion for both
discovery and dismissal of the indictment, which focused largely on his
selective prosecution claim. Because the selective prosecution claim was
forfeited and the other underlying claims lack merit, we also affirm the denial
of that motion.
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