The Gulfport doctor convicted in a multi-million dollar compound pharmacy fraud scheme has filed for a new trial.
Attorneys for Albert Diaz, M.D., filed the motion Tuesday evening, citing implied juror bias, not enough evidence to support the convictions and the lack of cross-examinations of witnesses.
Diaz was found guilty on all 16 charges in a federal indictment on March 2 for his role in a scheme to defraud TRICARE, which included signing prescriptions for patients without seeing them and falsifying patient records through a Hattiesburg-based pharmacy.
Diaz's charges include conspiracy, wire fraud, distributing and dispensing a controlled substance and falsification of records in a federal investigation.
The motion states the implied bias of the jury deprived Dr. Diaz of a fair trial, citing the juror that was dismissed during the trial. Juror 1 told the court she believed Dr. Diaz and his supporters were stalking or harassing her, leading to her dismissal.
According to the document, fellow members of the jury would wait to meet her outside the courthouse, which the defendant states "both Juror 1 and the remained of the jury did not follow the Court's instructions but rather engaged in self-help instead of reporting issues to the CSOs or the Court."
"The jury's emotional engagement against him deprived Dr. Diaz of a neutral jury and thereby violated his Fifth Amendment right to due process and his Sixth Amendment right to an impartial jury."
The motion also states there is not enough evidence to support the numerous counts of conviction, citing Dr. Diaz "had no intent to unlawfully enrich anyone" and he had "no knowledge of, nor interest in, the reimbursement paid to the pharmacy or anyone else by Tricare."
The motion also includes reference to Jay Scharr, a marketing representative who went to Dr. Diaz to have the prescription signed for the compounded creams and medications. Schaar pleaded guilty on July 25, 2017 to conspiracy to commit health care fraud in a scheme to defraud TRICARE and served as a witness for the prosecution. Schaar, working with the government, provided video evidence of a conversation in his Diaz's office, discussing his role in the alleged scheme.
"Dr. Diax did not intend to distribute a controlled substance outside of a legitimate medical purpose. Rather, he intended to provide medication to people he believed need it, a belief instilled in him by Schaar."
Diaz was denied bond in a hearing last week. Currently, he is scheduled to be sentenced on May 22nd in Hattiesburg. Diaz faces up to 305 years in prison and fines in excess of $7 million.