Opinion
Case No. CR 2-02-130.
April 28, 2008
OPINION ORDER
I. INTRODUCTION
This matter is before the Court on remand from the Sixth Circuit. A jury found Defendant Mitchell V. Kaminski guilty of fifteen offenses under the Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. § 321. The Court enhanced Kaminski's sentence for obstruction of justice and abusing a position of trust. The Sixth Circuit vacated his sentence and remanded to this Court on the limited issue of whether Kaminski's letter to the FDA or purportedly false testimony at trial constituted obstruction of justice. For the reasons stated below, the Court finds that Kaminski committed perjury and enhances his sentence for obstruction of justice. After the application of a two-point enhancement for abuse of trust, Kaminski falls into Criminal History Catagory I and has a total offense level of 10. The appropriate range for his sentence is six to twelve months of imprisonment. The Court HEREBY sentences Kaminski to a term of probation of five (5) years, including six (6) months of confinement at a community treatment center, with work-relase only, and six (6) months of home confinement, which may include electronic monitoring. The Court orders Kaminski to pay a fine of $6,000 and a special electronic monitoring. The Court orders Kaminski to pay a fine of $6,000 and a special assessment of $375.
Defendants Kaminski, Coleman, and Ovimmune are jointly and severally liable for restitution in the amount of $33,604.12.
II. BACKGROUND A. FACTS
Kaminski and Marilyn Coleman were the sole owners and operators of Ovimmune, a for-profit corporation. Kaminski is a medical doctor and board-certified surgeon, while Coleman has a Bachelor of Science degree and a Doctor of Philosophy degree, but is not a medical doctor. Coleman and Kaminski theorized that chickens immunized against various diseases would produce antibodies to those diseases, that those antibodies would be transmitted to the yolks of the chickens' eggs, and that humans could then treat or prevent the diseases by eating the egg yolks. They formed Ovimmune for the purpose of "produc[ing] antibodies from hyperimmune hens for administration to man and animals to modify gut/organism or act as biologic response modifiers for the prevention and/or treatment of disease." (Art. of Inc. at 1).On March 17, 1998, Coleman requested a ruling from the United States Department of Agriculture ("USDA") regarding whether "hyperimmune" eggs are approved for human consumption. On March 25, 1998, the USDA notified Coleman that such eggs are "generally recognized as safe" for human consumption when produced in accordance with relevant regulations and, therefore, may be freely marketed as food products in the United States. (USDA Letter).
Coleman and Kaminski then acquired a brood of hens, which they inoculated for various diseases, including chlamydia and candida (a type of yeast that causes, inter alia, thrush). The eggs from the candida-inoculated hens were shipped to a processing plant, where their yolks were pasteurized and reduced to powder. The yolks of the eggs obtained from the chlamydia-immunized hens were collected in Coleman's basement and shipped to Ohio State University ("OSU"), where they were freeze-dried. Ovimmune sold the candida powder to retailer For Your Health, Inc. ("FYH"), which was owned by Ray Suen ("Suen"), for resale as a treatment for yeast infections. Coleman gave away and sold the chlamydia eggs and chlamydia and candida egg powders to individuals for treatment of various diseases and infections, including rheumatoid arthritis and toenail fungus. Suen and FYH subsequently pleaded guilty, in a related case, to felony conspiracy to distribute unapproved and misbranded drugs.
In the early part of 2001, Coleman also contacted Sally Wiley ("Wiley"), a school nurse who worked for Union County, Ohio, schools and inquired about the possibility of using the district's students as subjects in a study to determine the effectiveness of the egg products in treating yeast-caused and other ailments. Coleman invited Wiley to attend the volunteer meeting. On March 30, 2001, a teleconference took place among Coleman and Kaminski, representing Ovimmune, and officials of the FDA. During that teleconference, the FDA officials informed Coleman and Kaminski that FDA authorization was required before Ovimmune could conduct clinical trials involving human subjects or administer the egg products to humans for the purpose of treating diseases. Coleman and Kaminski agreed not to conduct any clinical trials and represented that they had given the eggs only to Kaminski's family members (though they also conceded that they had contracted with FYH for distribution of the candida product and that they had no control over the advertising of that product).
Notwithstanding the FDA's instructions and her own representations during the teleconference, Coleman went ahead the very next day with the previously arranged volunteer meeting, at which she passed out egg samples and suggested that participants collect data for her concerning the eggs' efficacy. Wiley, the school nurse, attended the meeting and took notes. She later provided the FDA with those notes and signed a sworn affidavit describing the meeting.
In May 2001, Coleman and Kaminski submitted an article to the American College of Nutrition in which they represented that they had distributed candida eggs free of charge to local residents over a seven-month period and collected data that suggested that consumption of the eggs lowered the incidence of toenail fungus. During a June 25, 2001, interview on the show "Well Being With Cindy Bryant," Coleman again described the Ovimmune egg products as effective in treating various human ailments, including "mastitis, toenail fungus, rheumatoid arthritis, CFS or chronic fatigue syndrome, fibromyalgia, . . . ADD, ADHD and autism" as well as "vaginitis . . . and candidiasis." (Trial Tr. at 1179-1180), 1092-93 (Broadcast Recording Labels). At trial, the interviewer for the program testified that she knew that medical claims could only be made by a licensed physician and that she had asked Coleman on-air questions that she would only have asked of a physician.
On July 23, 2001, Coleman sold eight plastic bags of the chlamydia product and one bag of the candida product to an undercover FDA case agent, who covertly made an audio recording of the transaction. During that transaction, Coleman stated that she possessed one M.D. and two Ph.D. degrees and that the egg products that the agent purchased had been tested and proven effective in treating rheumatoid arthritis and toenail fungus. She also told the agent that the candida powder would cure toenail fungus.
Coleman gave the agent a tour of her office, which was located in her home. In her basement "research lab," she showed the agent boxes of unrefrigerated eggs. (Gov't Ex. 21.2 (July 23, 2001 Tape Tr.) at 16). When volunteers began arriving to open the eggs and collect the yolks, the agent agreed to help them. The tape transcript reveals that all of the participants, including Coleman, were aware that many of the eggs were rotten and contaminated with mold. Coleman twice admitted that "[i]f we weren't so desperate for eggs, we'd throw out the whole thing, but we don't have any." Id. at 47. Upon leaving the Coleman residence, the undercover agent stated into the tape recorder:
I can't believe they're shelling rotten eggs for the yolks with disintegrated black mold in them. Some of them are dried all clumped up it['s] like they're almost dehydrated. It's absolutely disgusting. To think they're freeze-drying that stuff and feeding it to people. I wouldn't feed rotten eggs to my chickens, cooked or otherwise.Id. at 49.
The agent went on to describe the process by which the egg yolks were collected:
Right in that room were I would suggest a dozen pieces of 96 dozen eggs. There were insects, weevils, I saw a centipede, dozens of small spiders[,] several different varieties of species crawling all over the room. In it she's got the final product which she gave me some stuff from the egg for my wife for her toenail fungus which is stuff that she sells commercially to other people. It comes out of the dehydrating plant in Zanesville. The other bag is from the stuff we were shucking eggs on tonight. Those eggs[,] you break them open the egg yolks were either already broken or as soon as you jarred them in the least they fractured unless they had started to dehydrate. They looked like they were partially soft[-]cooked even though the yolk and the egg white was fully intact. So I don't know[,] it could have been fungus. A lot of the eggs had black spots from bacteria growing in them and if they weren't solid or if they didn't stick to the shell they went in the stuff to go to Ohio State to make the stuff for pain with my arthritis and all the other problems. That is the product she was desperate for.Id. at 50.
On July 31, 2001, a team led by FDA Special Agent Douglas Loveland ("Loveland") executed a search warrant at Coleman's home, where they seized egg products. Loveland also seized egg products, belonging to Coleman, that were stored at OSU. The products were subsequently tested and found to contain yeast, mold, and bacteria, including several forms of staphylococcus and at least one bacterium that produced a diarrheal endotoxin. Coleman sent a mass e-mail message following the raid, telling her friends and customers that the FDA had searched her house at gunpoint and intended to do the same to anyone who had purchased her egg products. Several of her associates began inquiring into Loveland's background, seeking his Social Security number, credit report, and information concerning his military service.
On November 30, 2001, Coleman filed a report with the Union County Sheriffs Office, alleging that the FDA was somehow preventing her e-mail and postal mail from reaching her. Coleman filed a second report on January 28, 2002, this time claiming that she had received several telephone calls from an anonymous caller who threatened her with bodily harm if she were to file "that suit." (Jan. 28, 2002 Police Report Attachments). Coleman did in fact file a civil suit in the Union County Court of Common Pleas on February 21, 2002, naming Wiley (the Union County school nurse), John Doe, and Jane Doe as defendants. The complaint alleged that Wiley had made false statements to Loveland about the informed-consent form that Coleman had distributed at the March 31, 2001 volunteer meeting. Coleman sought damages in the amount of $15 million. The lawsuit was the subject of a front-page article in the local newspaper.
One week after Coleman filed her suit, Loveland tried to interview Connie Davis ("Davis"), a participant in the volunteer meeting held by Coleman on March 31, 2001. According to Loveland, Davis was nervous about assisting in the investigation and agreed only to answer very general questions. Wiley testified at the sentencing hearing that at least one other person who had attended the meeting had expressed reluctance to speak to authorities for fear of publicity relating to the lawsuit.
On March 8, 2002, Coleman called the FDA's Office of Internal Affairs ("OIA") to complain that Loveland had purposely delayed her receipt of the warning letter that would otherwise have informed her in advance of the raid on her home; that the search warrant authorizing that raid was comprised of "38 pages of lies": that Loveland "pistol whipped" people to get them to tell those lies about Coleman in order "to harm her personally and professionally" and that Loveland had refused to return some of the seized items despite a court order commanding him to do so. (Mar. 8, 2002 Mem.) (internal quotation marks omitted). The OIA advised Coleman that "she and/or her attorney have recourse through the courts if she feels that the FDA is acting inappropriately" and decided to take no further action regarding the matter. (Mar. 8, 2002 Mem. at 2).
On March 13, 2002, Coleman forwarded to the OIA a copy of a document purporting to be a motion to hold the FDA in contempt of court for refusing to return the seized items. (Mar. 13, 2002 Letter Attachments). Coleman's letter mentioned that an OIA official had discussed the motion with Kaminski the previous week. The letter noted that the motion was only a draft and promised to "fax you the court[-]stamped copy when it is available." (Mar. 13, 2002 Letter). It is undisputed that the motion was never filed. Coleman filed a third report with the Union County Sheriff's Office on May 6, 2002, this time alleging that Loveland had poisoned Coleman's well with magnesium. Eight days later, Coleman reported a break-in at her home and a gas leak that she suspected was the result of deliberate tampering. A report completed by Detective Jeff Stiers ("Stiers") the following month reflects that the case arising from the alleged well contamination and gas leak was closed due to insufficient evidence of any wrongdoing.
In July and August 2002, Coleman's customers and associates mounted a letter-writing campaign directed to Tommy Thompson ("Thompson"), the Secretary of the United States Department of Health and Human Services, which oversees the FDA. The letters were nearly identical in tone and content, each complaining of the FDA's poor treatment of Coleman and warning that such actions were likely to result in scandal and embarrassment for the administration. One individual sent a similar letter to Lester Crawford ("Crawford"), the Director of the FDA; another wrote to United States Representative Deborah Pryce. Several of these letters mentioned Loveland by name and speculated that he was acting in collusion with Coleman's competitors or was otherwise corrupt. In September 2002, Kaminski sent a similar letter to the OIA.
B. PROCEDURAL BACKGROUND
On July 31, 2002, Kaminski was indicted in the United States District Court for the Southern District of Ohio and charged with conspiracy to introduce into interstate commerce an unapproved and misbranded drug and to defraud (one count per defendant); mail fraud (seven counts per defendant); introduction into interstate commerce of unapproved new drugs (five counts per defendant); introduction of misbranded drugs into interstate commerce (four counts per defendant); failure to register a drug manufacturing facility (one count per defendant); misbranding drugs while held for sale after shipment in interstate commerce (three counts per defendant); and holding and causing to be held for sale adulterated drugs (two counts per defendant).
Kaminski's trial began on June 23, 2003, and lasted a month. On July 23, 2003, the jury found Kaminski guilty on five counts of introduction into interstate commerce of unapproved new drugs; four counts of introduction of misbranded drugs into interstate commerce; one count of failure to register a drug manufacturing facility; three counts of misbranding drugs while held for sale after shipment in interstate commerce; and two counts of holding and causing to be held for sale adulterated drugs.
This Court sentenced Kaminski and Coleman on April 29, 2005, and issued a supplementary sentencing memorandum as to them on May 24, 2005. This Court grouped each of the two individual Defendant's convictions into a single count for purposes of sentencing, "because all of the crimes . . . are strict liability and had the same victim: society at large." (Sentencing Mem. at 27-28); see also U.S. Sentencing Guidelines ("U.S.S.G.") § 3D1.2(b). This Court applied the preponderance-of-the-evidence standard to facts regarding enhancements suggested by the probation office, except to the extent that an enhancement was premised upon conduct of which Kaminski was acquitted, which conduct the Court required to be proven beyond a reasonable doubt. Kaminski moved for a new trial and a judgment of acquittal following the verdict. This Court denied his motion on December 15, 2003.
This Court found that Kaminski, as "a medical doctor, occupied a position of trust." (Sentencing Mem. at 21) (citing McCollister, 96 Fed.Appx. at 976 ("A practicing physician enjoys perhaps the highest level of discretion afforded any professional.")). Kaminski abused that position, this Court reasoned, by providing patients (several of whom testified at trial) with Ovimmune egg products for the treatment of ailments. Accordingly, this Court enhanced Kaminski's offense levels by two points.
This Court further held, pursuant to § 3C1.1 of the Guidelines, that Kaminski obstructed justice by providing false testimony at trial. In its subsequently issued sentencing memorandum, however, this Court did not specifically identify Kaminski's allegedly perjurious testimony. Instead, this Court focused on a September 10, 2002, letter that Kaminski sent the OIA entitled: "OCI Special Agent Douglas Loveland . . . This addendum reports subsequent break-ins, attempted murder and computer crimes." This Court found that Kaminski's letter constituted an attempt to impede the FDA's investigation by petitioning the Acting Commissioner of the FDA, the Secretary of Health and Human Services, and Congresswoman Deborah Pryce. [Presentence Report ("PSR")] at ¶ 39. This Court elaborated that the "government proved by a preponderance of the evidence that Dr. Kaminski's actions were performed in a willful attempt to impede the FDA's investigation by throwing up roadblocks, including leveling malicious personal attacks against SA Loveland." (Sentencing Mem. at 25). The Court therefore found that his actions warranted a two-point enhancement for obstruction of justice.
After the application of the various enhancements, Kaminski fell into Criminal History Category I and had a total offense level of 10, giving rise to an advisory Guidelines range of six to twelve months of imprisonment. After noting that the Guidelines dictate a sentence of imprisonment or of probation with conditions of intermittent or community confinement or home probation, the Court imposed a sentence of five years of probation, "substituting imprisonment with six months of `community confinement' and six months of `home detention.'" (Sentencing Mem. at 32-33) (quoting U.S.S.G. § 5C1.1(c)(3)).
In explaining its choice of sentence, the Court stated as follows:
The Court finds that the nature and circumstances of the offense and the history and characteristics of Defendants are such that five years of probation, with special conditions of community confinement and home detention, are appropriate. It appears to the Court that profit was exhorted over science and that Ovimmune products were distributed to the public without proper regard for any ensuing negative health effects. It is compelling to the Court that notwithstanding the March 30, 2001 conference call with the Food and Drug Administration, during which FDA representatives told Coleman and Kaminski that they needed an investigational new drug application ("IND") in effect before beginning human testing, Defendant Coleman, the very next day, held a meeting in a local church and gave away Ovimmune products. Indeed, the evidence showed that Defendants consistently circulated this product, touting it as a talisman for whatever ails one.
Yet, while Defendants may have believed in their products' effectiveness as an immune booster and healer, evidence at trial, including corroborating photographs, demonstrated that the conditions in which at least some of the eggs were kept were unsanitary. The evidence included such details as rotten, moldy eggs; a dead cat stored less than three feet from raw eggs; live cats running around the basement; egg residue on surfaces; raw eggs remaining unrefrigerated for long periods; and raw eggs covered with blood and manure. This sentence balances the nature and circumstances of the offense with the Defendants' lack of any prior criminal history. Moreover, it allows Defendants, who are well-educated and very connected to their communities and families, to maintain these bonds throughout the period of confinement.
(Sentencing Mem. at 33-34). The Court further stated that the confinement component of the sentences "reflects the seriousness of the offenses and accomplishes the goals associated with both specific and general deterrence." (Sentencing Mem. at 34).
Kaminski appealed his sentence. The Sixth Circuit first noted that although this Court found that "Kaminski perjured himself at trial . . . the subsequently issued sentencing memorandum [did] not reflect the perjury finding, and so [the district court] presumably did not rely upon that finding." United States v. Kaminski, 501 F.3d 655, 672 (6th Cir. 2007). Nor did the appellate court find "support in the record for [this Court's] finding that Kaminski participated in any petitions to the government entities listed in the memorandum." Id. Therefore, it rejected the finding that Kaminski impeded the investigation through communications to the Commissioner, Secretary, or Congresswoman.
As a result, the appellate court narrowed its review to whether Kaminski's September 10, 2002 letter to the FDA constituted a false statement to law enforcement qualifying Kaminski for an obstruction-of-justice enhancement. Id. The court construed the applicable law such that an "attempt that takes the form of a false but unsworn statement to a law-enforcement officer does not suffice to trigger the enhancement-or phrased in another way, that an unsworn statement to a law-enforcement officer cannot constitute obstruction of justice under § 3C1.1 unless it significantly obstructs or impedes the investigation or prosecution of the offense." Id. (citing United States v. Jarman, 144 F.3d 912, 914 (6th Cir. 1998). Because Loveland testified unequivocally that the letter had no impact whatsoever on the investigation, the court held that Kaminski's September 10 letter did not constitute obstruction of justice and was not, by itself, sufficient to support an enhancement. The Sixth Circuit vacated Kaminski's sentence and remanded his case to this Court for resentencing.
III. SCOPE OF REVIEW
Appellate courts may grant general or limited remands pursuant to 28 U.S.C. § 2106. United States v. Moore, 131 F.3d 595, 597 (6th Cir. 1997). A general remand permits the district court to resentence Defendant de novo. Should the district court so decide, it may consider new evidence and issues. See, e.g., United States v. Hebeka, 89 F.3d 279, 284 (6th Cir. 1996). By contrast, a "limited remand constrains the district court's resentencing authority to the issue or issues remanded." Moore, 131 F.3d at 597. The rationale is simple. Repetitive hearings, "followed by additional appeals, waste judicial resources and place additional burdens on parole officers and personnel and on hardworking district and appellate judges. . . ." United States v. Santonelli, 128 F.3d 1233, 38 (8th Cir. 1997).
28 U.S.C. § 2106 provides:
The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any j udgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.
In the "absence of an explicit limitation, the remand order is presumptively a general one." Moore, 131 F.3d at 598. Accordingly, "where an appellate court simply vacates a sentence and remands to the district court for resentencing, that order is considered a general one that allows the district court to resentence the defendant de novo." Id. A limited remand "must convey clearly the intent to limit the scope of the district court's review." United States v. Campbell, 168 F.3d 263, 267 (6th Cir. 1999). In light of the "general principle of de novo consideration at resentencing, [the appellate] court should leave no doubt in the district judge's or parties' minds as to the scope of the remand. The language used to limit the remand should be, in effect, unmistakable." Id.
In this case, the Sixth Circuit vacated Kaminski's sentence and remanded to this Court on the limited question of whether enhancement is warranted for obstruction of justice. The Sixth Circuit explicitly narrowed the scope of review:
[b]ecause the district court's application of the September 10 letter as an attempt at obstruction — and, thus, the district court's application of the § 3CI.I enhancement on this basis — was erroneous, resulting in an improperly calculated guidelines range, we VACATE Kaminski's sentence and REMAND his case to the district court for resentencing consistent with this opinion. On remand, the district court may consider all relevant record evidence in determining whether an application of the § 3C1.1 enhancement is warranted.Kaminski, 501 F.3d at 673. Such language unmistakenly limits resentencing to whether Kaminski's conduct merited an obstruction-of-justice enhancement.
IV. LAW AND ANALYSIS
On remand, the government proffers two bases for an obstruction-of-justice enhancement of Kaminski's sentence: that he (1) attempted to intimidate FDA witnesses by sending a letter to the FDA Office of Internal Affairs ("OIA") and other high-profile figures accusing the investigating agents of criminal misconduct; and (2) testified falsely that he disclosed the negative results of animal tests to an investor before that investor committed additional funding to develop and market the product.A. WITNESS INTIMIDATION
The government contends that Kaminski's September 10, 2002, letter to the OIA, copied to the Secretary of Health and Human Services Tommy Thompson, Chief Counsel of the FDA Dan Troy, and Acting Commissioner of Food and Drugs Lester Crawford, constituted an attempt intimidate government witnesses, which is grounds for an obstruction-of-justice enhancement of Kaminski's sentence under the Sentencing Guidelines. U.S.S.G. § 3C1.1. Kaminski's letter accused FDA agents of "break-ins, attempted murder, and computer crimes" during the course of their investigation. The government argues that Kaminski attempted to instigate an investigation of the FDA agents in order to deter government witnesses from testifying against him.
The Sixth Circuit held on appeal that a "characterization of the September 10 letter as an attempt at obstruction and . . . enhancement on this basis" constituted reversible error. Kaminski, 501 F.3d at 673. It is difficult to surmise how the Sixth Circuit could have been more clear. There is nothing in the record to support the contention that the Sixth Circuit failed to fully consider the letter or whether it constituted an witness intimidation. The Sixth Circuit has spoken to this issue and rejected the government's position.
Regardless, the government's characterization of the letter as witness intimidation is specious. There is nothing in the record to indicate that Kaminski had any such intention or that his letter had any such effect. Notably, Kaminski did not send the letter to any potential witnesses. It is unlikely, and there is no evidence to suggest, that Kaminski believed a strongly worded letter to the government was sufficient to scare professional law enforcement officers from testifying at his trial.
Other circumstantial evidence militates against a finding that the September 10 letter constituted attempted witness intimidation. Kaminski's co-defendant had already filed multiple police reports, initiated a civil suit, and wrote to the OIA several times complaining of the FDA's misconduct. The effect of a letter reiterating these complaints would be de minimis. In fact, the Sixth Circuit found unequivocally that the letter "had no impact whatsoever on the investigation." Kaminski, 501 F.3d at 673. Because there is no evidence to indicate that Kaminski's letter constituted an attempt to intimidate potential witnesses or that his letter had any such effect, it is not a sufficient basis for an obstruction-of-justice enhancement under § 3C.1.1.
B. PERJURY
The government also seeks an obstruction-of-justice enhancement for perjury. The Sixth Circuit did not reach this issue, noting that the "sentencing memorandum does not reflect the perjury finding, and so the district court presumably did not rely upon that finding." Kaminski, 501 F.3d at 673. The Sentencing Guidelines mandate an obstruction-of-justice enhancement for "committing, suborning, or attempting to suborn perjury." Application Note 4(b) to U.S.S.G. § 3C.1.1. A witness perjures himself if he "gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory." United States v. Dunnigan, 507 U.S. 87, 94 (1993).
Procedurally, to enhance Kaminski's sentence for perjury under § 3C1.1, the Court must: (1) identify those particular portions of his testimony that it considers to be perjurious; and (2) either make a specific finding for each element of perjury or, at least, make a finding that encompasses all of the factual predicates for a finding of perjury. United States v. Sassanelli, 118 F.3d 495, 501 (6th Cir. 1997). The government alleges that Kaminski testified falsely at trial that he disclosed the negative results of animal tests to an investor in Ovimmune, Ray Suen, in October 1999.
Kaminski and Coleman solicited Suen, owner of the retailer For Your Health, to invest in Ovimmune's products. To that end they commissioned a noted researcher from the University of Texas at Houston, Dr. John H. Rex ("Dr. Rex"), to test the effectiveness of their product in treating an animal infection. In July 1999, Dr. Rex notified Coleman and Kaminski that he had failed to find a statistically significant effect in the first round of animal trials. Despite the setback, Dr. Rex hypothesized that the application of the product to treat a less severe infection could yield positive results. In January 2000, after completing these studies, he concluded that the treatment was ineffective. Critically, Dr. Rex communicated exclusively with Kaminski and Coleman. The government charged both Defendants with mail fraud on the grounds that they intentionally concealed the negative results of Dr. Rex's animal trials from Suen in order to secure a $40,000 investment for the marketing and development of their product.
At trial, Kaminski testified that he disclosed the negative results of the animal testing to Suen before the investor committed additional funds. Kaminski testified on direct examination as follows:
Q: So as of the time that Mr. Suen made the commitment to go to phase 2 in October of 1999, had you withheld any information from him concerning the Rex testing?
A: No, sir, we were working closely.
(Tr. Vol. XVI at 95). The government alleges that Kaminski lied because, in fact, both he and his co-defendant withheld from Suen the negative results of the first round of Dr. Rex's animal tests for fear that Suen would not invest further in their product. As a result of Kaminski's perjury, the government argues that the jury acquitted both Defendants of the mail fraud charges.
Kaminski counters that Suen's testimony on cross-examination belies the government's accusation:
Q: At the time that you wrote that check, did you believe that you had heard the final word about [the Rex studies] in November of 1999, if you can recall?
A: 1 believe 1 received some e-mail from Dr. Coleman informing me the study wasn't that great but he's going to look at the data again.
Q: If you hadn't gotten the final results from the proof of concept study, what was this $40,000 check for?
A: I think all along we talk about perhaps the animal study was not the right one to use, but everything else in the human clinical trials were turning out pretty good results. So we were going to count on those data to proceed with the production.
(Tr. Vol. VIII 69:5-17). This testimony suggests that Coleman notified Suen that the results of Dr. Rex's study were not positive before his $40,000 investment. Kaminski therefore concludes that he did not commit perjury. He is mistaken.
Suen's vague notion of the negative results of the animal study does not undermine the government's contention that Kaminski withheld critical information from the investor and then lied about it at trial. Dr. Rex told Kaminski in no uncertain terms that the treatment failed. (Tr. Vol. V 59:6-15). Rather than tell Suen the truth, Kaminski told the investor that the negative results of the study arose from experimental problems, particularly with the controls. This was not so. Although Dr. Rex testified to having problems with the controls in one study, he conducted multiple other clean experiments showing that Ovimmune's product was ineffective. (Tr. Vol. V 66:5-18). Kaminski did not disclose these results to Suen, who only learned that the animal trials had failed in 2001. As such, Kaminski testified falsely when he stated that he did not withhold any information regarding the trials before Suen committed $40,000 in Octobert 1999 to market and develop the product.
Kaminski insists that even assuming that he testified falsely, it was immaterial and therefore insufficient to constitute perjury. See Dunnigan, 507 U.S. at 94 (holding that Defendant must testify falsely to a material matter in order to qualify for an obstruction-of-justice enhancement for perjury). Suen testified that he decided to commit the additional $40,000 before any of Dr. Rex's results were available. (Tr. Vol. IX 58:16-19). Kaminski argues that his failure to disclose Dr. Rex's findings was therefore irrelevant to Suen's decision to further invest.
Although Suen testified that he had already decided to commit S40,000 in the spring of 1999, for whatever reason he waited until the fall. Had he known the truth, the results of the Dr. Rex's experiments over the summer might have given him pause. Kaminski gave Suen the impression that Dr. Rex was struggling with his controls. This was a lie. It is unclear whether Suen would have committed additional funding had he known that the experiments were reliable and the treatment had simply failed. At the very least, Kaminski's false testimony is material to whether he fraudulently induced further investment in Ovimmune. Accordingly, the Court finds that Kaminski committed perjury.
IV. CONCLUSION
For the foregoing reasons, the Court enhances Kaminski's sentence for obstruction of justice. After the application of a two-point enhancement for abuse of trust, Kaminski falls into Criminal History Catagory I and has a total offense level of 10. The appropriate range for his sentence is six to twelve months of imprisonment. The Court HEREBY sentences Kaminski to a term of probation of five (5) years, including six (6) months of confinement at a community treatment center, with work-relase only, and six (6) months of home confinement, which may include electronic monitoring. The Court orders Kaminski to pay a fine of $6,000 and a special assessment of $375.
Defendants Kaminski, Coleman, and Ovimmune are jointly and severally liable for restitution in the amount of $33,604.12.