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United States v. Gyambibi

United States District Court, D. Connecticut

October 16, 2019

UNITED STATES OF AMERICA,
v.
KWASI GYAMBIBI, Defendant.

          ORDER DENYING MOTIONS FOR JUDGMENT OF ACQUITTAL

          Jeffrey Alker Meyer United States District Judge

         The Government charged Kwasi Gyambibi and his spouse, Dr. Kakra Gyambibi, with conspiracy to engage in healthcare fraud (18 U.S.C. § 1349) and with substantive counts of healthcare fraud (18 U.S.C. § 1347). In essence, the Government charged the Gyambibis with acting together to fraudulently cause the submission of claims for prescription drug benefits to health care benefit plans despite knowing that there was no valid prescription to support these claims.

         Although Dr. Gyambibi entered a plea of guilty to the conspiracy charge, Kwasi Gyambibi elected to proceed to trial. The jury heard trial evidence over the course of several days in February 2019 and then returned a mixed verdict: guilty on two counts (Counts 4 and 5), not guilty on seven counts (Counts 10 to 16), and no verdict at all on the remaining counts (Counts 1 to 3, 6 to 9, and 17 to 19).

         Gyambibi moved pursuant to Fed. R. Crim. P. 29 for a judgment of acquittal during trial and then again after trial. I will now deny the motions. Notwithstanding the jury's decision to acquit Gyambibi on numerous counts of the indictment, I conclude as to the remaining counts that the evidence was legally sufficient to allow for a jury verdict in the Government's favor.[1]

         Background

         The following facts are set forth based on the trial evidence as viewed in the light most favorable to the Government. The evidence at trial focused on Gyambibi's dealings with the Advantage Pharmacy in Mississippi, a pharmacy that specialized in making custom-made “compound” medications. Some of these compounds were very expensive. For example, the pharmacy made a skin cream for which it charged about $11, 000 for a large toothpaste-sized tube. This skin cream was priced inversely to its medical importance-to treat minor maladies such as stretch marks and keloids.

         The pharmacy used a sales force to promote its products nationwide. One of its sales agents was Leroy Prempeh, who was a close cousin of Gyambibi and who received a commission between 10% to 35% on pharmacy products he sold. During 2014 and 2015, Gyambibi coordinated with Prempeh to act as a sub-sales agent for the pharmacy's products.

         At the time Gyambibi had a day job with the student services office at the University of Connecticut. He recruited friends and workplace associates to persuade them to place orders for the pharmacy's high-priced products. He did not tell them how much the products cost. They gave him their health plan insurance information so that the product costs could be billed to their health plans. Gyambibi would ordinarily record this information on an order form that he faxed to the pharmacy in Mississippi. After the pharmacy received the order, it would contact Gyambibi's friend or associate to verify the order and then subsequently mail the product to the friend or associate while in turn billing the relevant healthcare benefit plan.

         Many of the orders included automatic refill requests. This meant, for example, that if an order had been placed for one of Gyambibi's friends or associates to receive a single tube of $11, 000 skin cream, the pharmacy would send and bill again for refill tubes every few weeks. Gyambibi's friends and associates generally did not use the products that they received from the pharmacy and sometimes did not even open the packages when they arrived from the pharmacy.

         Most significantly for purposes of this prosecution, the high-priced pharmacy products at issue required a prescription. The signature of a prescribing physician appeared on all the order forms that were faxed to the pharmacy. The trial evidence included many order forms bearing the signatures of either Dr. Gyambibi or Betty Exume, a physician's assistant who worked at the same hospital as Dr. Gyambibi.

         The problem was that none of Gyambibi's friends or associates were actually patients of Dr. Gyambibi or Exume. Neither Dr. Gyambibi nor Exume spoke or met with any of Gyambibi's friends or associates to determine if the medications would be safe or medically appropriate. For some of the forms that Gyambibi faxed to the pharmacy, he did not even bother to have Dr. Gyambibi or Exume sign the form; instead, he just filled out a blank order form that already had a photocopy of one of the doctor's signatures as the putative prescribing physician.

         The trial evidence included email communications reflecting that Dr. Gyambibi was well aware that her prescription signature was being used to dispense medications for people who were not her patients. Indeed, at one point when Dr. Gyambibi's office received a query about an order that had been placed under her prescription signature for a person that she had never met, she emailed Gyambibi (who is not a physician) to ask what medication he had prescribed to this unknown person.

         Trial testimony established that neither the pharmacy nor the insurance companies would have filled or paid for these prescription drug orders if they had known that the supporting prescription was issued by a physician who had never seen or treated the recipient of the medication. The insurance companies paid out more than $1 million as a result of the Gyambibis' actions in 2014 and ...


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