Doctor convicted in pharmacy scheme gets more time to request new trial

Doctor convicted in pharmacy scheme gets more time to request new trial
Diaz will be sentenced on May 22. (Photo source: WDAM)

HATTIESBURG, MS (WDAM) - U.S. District Judge Keith Starrett has granted Biloxi-based physician Albert Diaz an extension to file a motion for a new trial. Diaz's lawyers filed a motion on March 20, saying they didn't have the trial transcript, thus preventing them from completing the motion request.

"…To ensure that the record is complete and to eliminate the possibility of piecemeal argumentation across multiple pleadings, the court will further extend the Defendant's deadline to file a motion for new trial," said Starrett in the court order.

The order outlined the various transcripts from the trial that were provided to Diaz's lawyers by the court.

"Defendant first requested a complete copy of the trial transcript for the court reporter on March 16, 2018--- his initial deadline to file a motion for new trial. According to the court reporter, defendant has already obtained the transcripts of the testimony of Jason May and Gerald Schaar, the transcripts of the jury inquiries on the final day of trial, the transcript of the charge conference, and the transcript of the Government's opening statement."

Court records state his lawyers "waited until the last minute to request a copy of the transcript," but did in fact "obtain a partial transcript."

On March 2, Diaz was found guilty on a 16-count federal indictment. 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.

During the trial, the government argued that 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 more than $2.3 million for medications prescribed by Diaz. The indictment also stated he falsified patient records by indicating that he examined individuals before prescribing them compounded medications, which he admitted to doing on the witness stand.

According to court documents, the motion for a new trial that was filed on March 20  has been stricken from the record. The extension for the new motion is set for April 5.

"From this point forward, any requests for extensions of time from any party will be very closely scrutinized, as the court intends to address defendant's motion for new trial before the sentencing currently scheduled for May 22."

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.

Day 2: Witness: Doctor prescribed meds without evaluating patients

Day 4: Prosecution, defense rest in Diaz trial