BECKLEY - U.S. District Judge Irene C. Berger has ruled on six motions less than a week before the criminal trial for Michael Kostenko is set to begin.

Kostenko is charged with 19 counts of distributing oxycodone not for legitimate medical purposes and two counts of distributing oxycodone, as well as maintaining a drug involved premises.

On the motion regarding a death scene photograph wherein a patient who died in her home of a drug overdose with a pill bottle with the defendant’s name on it near her hand, Berger said the court finds it appropriate to view the contested photographs prior to ruling and no reference to or publication of the same shall occur prior to the ruling.

“The motion to suppress the death scene photographs will be held in abeyance pending the United States providing the photographs to the court for review,” the decision states.

On the motion in limine regarding patient deaths, Berger said the court finds that the potential for unfair prejudice and confusion substantially outweighs the probative value of the uncharged patient deaths, and, therefore, the motion in limine to exclude evidence of uncharged patient deaths should

be granted.

On the motion in limine relating to confidential informant recordings, Berger stated that the motion should be terminated as moot.

On the motion to suppress references of drug use, the court found that evidence of illegal drug use by the defendant in the presence of patients and/or with patients is relevant to the question of whether he prescribed medication to those patients for legitimate medical purposes in the usual course of professional medical practice and within the bounds of medical practice.

“Therefore, the motion to suppress such evidence should be denied,” she wrote.

On the motion in limine regarding administrative actions, Berger wrote that the evidence from administrative proceedings may be admissible to show the defendant’s knowledge that his practices fell outside the usual course of professional medical practice and beyond the bounds of medical practice.

“However, evidence of the findings and conclusions of administrative bodies, such as the revocation of the defendant’s license to practice medical, may be unfairly prejudicial,” Berger wrote. “There is a risk that the jury will feel conscribed to accept the judgment of the Board of Osteopathic Medicine with regard to whether the defendant practiced within the bounds of medicine, rather than making their own judgment based on the evidence presented, pursuant to the standards and instructions provided by the court.”

Therefore the court directs the United States to make no reference to such evidence during opening statement and to approach the bench prior to presenting any evidence relating to administrative proceedings to allow the court to rule on admissibility of such evidence while considering the context in which it is offered.

On the motion to strike surplusage, Berger wrote that the court finds that the administrative proceedings are relevant, but may be unfairly prejudicial.

“It is not this court’s practice to provide the jury with a copy of the superseding indictment, therefore preventing any potential prejudice to the defendant should the court find that evidence inadmissible,” Berger wrote. “Because the contested allegations are relevant, and in view of the court’s other rulings regarding this evidence, the court finds that the motion to strike surplusage should be denied.”

Jury selection is expected to begin Friday, and the trial is scheduled to begin April 24 at 9 a.m. in Beckley.

The United States is represented by Miller Bushong III, Eric Patrick Bacaj and Joshua C. Hands of the U.S. Attorney’s Office.

Kostenko is represented by Derrick W. Lefler of Gibson Lefler & Associates and E. Ward Morgan.

U.S. District Court for the Southern District of West Virginia case number: 5:16-cr-00221

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U.S. District Court for the Southern District of West Virginia Beckley Division
110 North Heber Street
Beckley, WV - 25801

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