HATTIESBURG, MS (WDAM) - Attorneys for Albert Diaz, a Biloxi-based physician, are set to file a motion for a new trial on Friday. According to court documents, they believe a juror tainted their client's case.
Diaz was found guilty of all 16 charges in a federal indictment on March 2. His charges include one count of conspiracy to commit health care fraud and wire fraud, four counts of wire fraud, one count of conspiracy to distribute and dispense a controlled substance, four counts of distributing and dispensing of a controlled substance, one count of conspiracy to falsify records in a federal investigation and five counts of falsification of records in a federal investigation.
According to the Department of Justice, Diaz took part in a scheme to defraud TRICARE by "prescribing medically unnecessary compounded medications, some of which included Ketamine, a controlled substance, to individuals without first examining the individuals for the purpose of having a Hattiesburg-based compounding pharmacy dispense the medically unnecessary compounded medications and to have TRICARE reimburse the compounding pharmacy for dispensing the medications."
The federal indictment states that between Oct. 2014 and Dec. 2015, TRICARE reimbursed the pharmacy over $2.3 million for medications prescribed by Diaz. The indictment also says he falsified patient records by indicating that he examined individuals before prescribing them compounded medications.
One of the fourteen jurors, two of which were alternates, alleged that Diaz and his family made her feel uneasy on more than one occasion during the trial. The trial lasted over five days beginning Feb. 26.
"One juror said he was aware of it on Tuesday and the government acknowledges that in their response," said John Colette, one of Diaz's lawyers, in a bond hearing on Monday. "Then there were a few more said on Wednesday. Almost all of them (jurors) said they were well aware of these issues on Thursday. And again, no one told the court about it--- no one--- they didn't abide by their oath."
Colette says his team wasn't made aware of the allegations until the day they were set to deliver closing remarks to the jury on March 2.
"Judge Starrett has us in chambers for a charge conference," he said. "As we're leaving the charge conference, the law clerk says, 'judge, we've got a problem'." And the judge and law clerk leave unbeknownst to us. About 30 minutes later, Judge Starrett comes out and says, 'there's a juror who is crying in the bathroom. I'm not sure what it is, but we need to look into it'."
Court documents show that during a meeting with Starrett, the juror said a gray-haired man and his wife contacted her in the hallway of the William M. Colmer Federal Building. She also told Starrett that two ladies supposedly Diaz's daughters attempted to talk to her as she went through the metal detectors at the front entrance of the building.
"Well, I just felt very uncomfortable," the juror told the judge referring to both instances.
Additionally, the juror told court officials about another experience that concerned her.
"There was a guy with a notebook," she said. "I don't know who he was, but he followed me and he was within steps of me going to my truck. And I'm pretty independent, but I watch my surroundings. I felt uncomfortable with him doing what he did."
The juror admitted to confiding in other jurors about her lack of comfortability during the trial, which Colette says should've been acknowledged the moment she felt that way. Colette says despite jurors saying they could be fair in the case, their actions proved otherwise adding they didn't follow the judge's directions.
"…The judge instructs them every day if you are contacted or you talk to anybody, he tells the jury to tell it CSO, tell it to the marshal, tell it to me (judge)," said Colette. "And not one of them, not one of the 13 ever said, 'hey, one of these jurors is upset about being threatened or she thinks somebody tried to contact her--- not Tuesday, not Wednesday, not Thursday. It's not until Friday morning when this lady, now, is really freaking out in the bathroom."
Despite other jurors encouraging her to come forward with her concerns, she remained quiet. Therefore, some jurors "banded together" to go with her wherever she went and made plans to meet her in the parking lot of the courthouse for "precautions and safety."
"And then sure enough Friday morning, not only did she drive her son's truck, but she comes into the jury and she says, 'well at least I didn't get car bombed'," Colette said. "This is hours before we are fixing to make closing statements. This cannot be fair."
After learning of the juror's concerns, she was dismissed from her duties.
"I think it would be appropriate for me to excuse you from your service," said Starrett.
Court, which was scheduled to begin early Friday morning on March 2 was pushed back due to the incident. After closing remarks were delivered, jurors deliberated for a few hours before finding him guilty. As the charges were read, Diaz's wife wailed while other family members were emotional. Diaz offered his family members a handkerchief before being escorted out of the courtroom.
On March 13 in Gulfport, Magistrate Judge John Gargiulo denied Diaz bond following a hearing stating:
"defendant has not overcome the presumption, because he has not established that there is a substantial likelihood that a motion for new trial will be granted, the government has not recommended that no sentence of imprisonment be imposed; and defendant has not established by clear and convincing evidence that he is not a flight risk or a danger to any other person or the community."
Diaz faces up to 305 years in jail and up to $7.5 million dollars in fines. His sentencing is set for May 22 in Hattiesburg.