Sixth Circuit Finds Case Agent’s Unfounded Testimony That Defendant & Co-Conspirator “May Even Have Been Lovers” Had No Place at Trial, But Didn’t Warrant Reversal
Should a defendant be entitled to a new trial when the case agent baselessly testifies at trial that his alleged co-conspirator and he “may even have been lovers” despite the defendant seeking to distance himself from the co-conspirator? That was the question addressed by the Sixth Circuit in its recent opinion in United States v. Clay, 162 F.4th 757 (6th Cir. 2025).
In Clay,
Kevin Clay and his best friend founded Theramedical, a pharmaceutical sales company that specialized in compounded prescriptions. But unlike other pharmaceutical companies, Theramedical marketed its compounds to prospective patients, not doctors. The pitch: the patient would receive a “commission”—a cut of the insurance reimbursement—for each prescription filled. To facilitate this payment scheme, Theramedical partnered with a pharmacy that agreed to give Theramedical a portion of the insurance reimbursements. Theramedical then heavily recruited potential patients, or “sales representatives,” from a local employer, whose insurance plan covered the prescriptions. And Theramedical directed the representatives to a doctor who readily doled out the prescriptions. Within just two years, Theramedical made millions of dollars. To minimize his taxable income, Clay established a public charity but treated its funds as if they were his own. Eventually, authorities caught wind of Theramedical’s activities and indicted Clay, along with others. A jury convicted Clay of conspiracy to commit healthcare fraud, healthcare fraud, and making a false statement to the Internal Revenue Service (IRS). The district court sentenced him to 51 months’ imprisonment and ordered him to pay nearly $7 million in restitution.
After he was convicted, Clay appealed, claiming, inter alia, that the case agent improperly testified without foundation that he and his alleged co-conspirators “may even have been lovers.” The court dispensed with the issue as follows:
Clay next argues that he was harmed by Marciniak’s statements that Maluchnik and Clay were “always together,” and may even have been “lovers.” These statements, he says, “undermine[d] Clay’s defense that Maluchnik, not Clay, handled the day-to-day operations.”…But many witnesses, other than Marciniak, testified to how close the two men were. Maluchnik and Clay had been best friends since 2002 and were in each other’s weddings. Clay used to attend Maluchnik’s family dinner on Sundays. The two friends lived “50 to a hundred feet” apart and saw each other daily; indeed, law enforcement officials found Clay’s tax documents in Maluchnik’s apartment….What’s more, Clay and Maluchnik “[s]eemed like they had no secrets from each other” and were “living parallel lives in some respects.”…This uncontested testimony conveyed to the jury how intertwined Clay’s and Maluchnik’s lives were. To be sure, no one else testified that Clay and Maluchnik were rumored to be lovers. And Clay is right that Marciniak’s speculations about his sexual relationships “ha[d] no place in [his] criminal trial.”…Yet Marciniak’s stray comment of that nature was not so prejudicial as to merit reversal. Clay argues that the government tried to emphasize the closeness of the two men’s relationship in order to undermine his defense that Maluchnik, not he, closely oversaw Theramedical’s operations. But a wealth of evidence painted the two men as inseparable; and whether they were best friends or romantic partners would have little bearing on this defense. Because other testimony conveyed just how close the two friends were, Marciniak’s testimony on the matter did not affect Clay’s substantial rights.