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United States v. Luthra

United States District Court, D. Massachusetts

April 13, 2018

UNITED STATES OF AMERICA
v.
MARGARET LUTHRA a/k/a Rita Luthra, Defendant.

          MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION TO DISMISS INDICTMENT (DKT. NO. 135)

          MARK G. MASTROIANNI, UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Before the court is Margaret Luthra's (“Defendant”) Motion to Dismiss the superseding indictment, the government's opposition, and Defendant's reply. (Dkt. Nos. 135, 138, 141.) The indictment charges Defendant with three counts and she challenges each. Count 1 alleges wrongful disclosure of individually identifiable health information in violation of the Health Insurance Portability and Accountability Act (“HIPPA”), 42 U.S.C. § 1320d-6. (Dkt. No. 89 ¶¶ 11-14.) Count 2 alleges “witness tampering” in violation of 18 U.S.C. § 1512(b)(3). (Id. ¶¶ 15-17.) Count 3 alleges obstruction of a criminal investigation of a health care offense in violation of 18 U.S.C. § 1518. (Id. ¶¶ 18-21.)

         Defendant argues for dismissal on numerous grounds, some levied at particular counts and some as a basis for dismissal of the entire indictment. As to Count 1, Defendant contends the government “flat out fails to state an offense” under HIPPA and that dismissal is also warranted under the doctrine of duplicity and for lack of specificity. (Dkt. No. 136 at 3.) Regarding Count 2, Defendant contends dismissal is warranted under the doctrine of duplicity and because the government failed to allege that she “corruptly persuaded” her assistant-the allegedly “tampered” witness-to withhold facts from a law enforcement officer of the United States as required by the statute. (Id. at 19-21.) Regarding Count 3, Defendant contends dismissal is warranted in light of the government's failure to state an offense (i) “because of lack of mens rea and materiality . . . as count three fails to allege that [Defendant's] statements had the ‘natural and probable effect' of obstructing an investigation, ” (ii) for lack of specificity, and (iii) under the doctrine of duplicity. (Id. at 25-28.) Defendant also moves for dismissal of all counts on two additional grounds: violation of her Sixth Amendment right to a speedy trial and alleged prosecutorial misconduct before the grand jury. (Dkt. No. 136 at 29-39.)

         The court DENIES the motion for the reasons below. Because the majority of Defendant's arguments have been addressed and rejected in prior orders, those arguments are only briefly discussed below. The remaining arguments are addressed in turn.

         II. STANDARD

         Indictments must contain a “plain, concise and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). Generally, “an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 114, 94 (1974). “An indictment that tracks the language of the underlying statute generally suffices to meet this standard; provided, however, that the excerpted statutory language sets out all of the elements of the offense without material uncertainty.” United States v. Troy, 618 F.3d 27, 34 (1st Cir. 2010) (citing United States v. Serino, 835 F.2d 924, 929 (1st Cir.1987)). An indictment must, nevertheless, “be accompanied [by] a statement of the facts and circumstances [sufficient to] inform the accused of the specific offence [sic], coming under the general description, with which he is charged.” Id. (citing Hamling, 418 U.S. at 117-18). “[I]n the ordinary course of events, a technically sufficient indictment handed down by a duly empaneled grand jury is enough to call for trial of the charge on the merits.” United States v. Guerrier, 669 F.3d 1, 4 (1st Cir. 2011) (quoting Costello v. United States, 350 U.S. 359, 363 (1956)). For that reason, defendants challenging the sufficiency of an indictment bear “a heavy burden, ” United States v. Perry, 37 F.Supp.3d 546, 550 (D. Mass. 2014) (citing United States v. Troy, 618 F.3d 27, 34 (1st Cir. 2010)), and courts reserve dismissal for “extremely limited circumstances” to avoid “directly encroach[ing] upon the fundamental role of the grand jury.” Whitehouse v. U.S. Dist. Court, 53 F.3d 1349, 1360 (1st Cir. 1995).

         III. ANALYSIS

         A. Arguments Previously Addressed

         Defendant repeats-in large part verbatim-arguments the court has previously rejected when ruling on her prior motions.[1] (See Dkt. No. 100 (Sept. 26, 2017 Memorandum and Order denying first motion to dismiss) and Dkt. No. 120 (Jan. 12, 2018 Electronic Order granting government's motion to exclude delay and rejecting Defendant's Sixth Amendment arguments); compare Dkt No. 88 (Def.'s Memo. of Law In Support of Mot. to Dismiss the Indictment) with Dkt. No. 136 (Def.'s Memo. of Law In Support of Mot. to Dismiss the Superseding Indictment).) For the sake of clarity, the relevant holdings from prior orders are repeated below.

         (1) Duplicity & Specificity

         The court has already held that the doctrines of duplicity and specificity do not require dismissal of any challenged count. (Dkt. No. 100 at 205.) To quote the court's prior opinion: specificity does not merit dismissal of count 2 because “the relevant [HIPPA] allegations sufficiently track the language in 42 U.S.C. § 1320d-6 . . . and sufficiently ‘inform [Defendant] of the specific offense, coming under the general description, with which [s]he is charged.'” (Id. at 2 (quoting United States v. Troy, 618 F.3d 27, 34 (1st Cir. 2010)(other citations omitted).) Likewise, “[t]he Superseding Indictment sufficiently tracks statutory language . . . [and] provide[s] sufficient notice by asserting that Defendant ‘gave information she knew to be false' to United States Department of Health and Human Services (‘HHS') agents who were investigating violations of 42 U.S.C. § 1320a-7b, the federal ‘Anti-kickback Law.'” Id. at 2-3. As for the doctrine of duplicity, the court has already explained that “duplicitous counts are generally cured by jury charges requiring unanimous agreement on underlying offense(s) or by government election between different offenses contained in a single count, and not by dismissal.” Id. at 4-5 (citing United States v. Place, 757 F.Supp.2d 60, 61 (D. Mass. 2010)); see also United States v. Robinson, 651 F.2d 1188, 1194 (6th Cir.1981) (“dismissal of the indictment is not the proper remedy”).

         (2) Sufficiency of Allegations Supporting Count 3

         The court has also already rejected the remaining arguments levied at Count 3: putative failures to allege “falsehoods, ” “Mens Rea and Materiality, ” and “the required nexus” purportedly required under United States v. Aguilar, 515 U.S. 593 (1995). (Dkt. No. 100 at 5-7.) Relevant “allegations fairly and straightforwardly imply several falsehoods, contrary to Defendant's broad construal, most obviously that Defendant misrepresented that she had been paid to write a research paper. These allegations are enough to state an offense.” Id. “Defendant's remaining arguments all involve holdings in Aguilar [and progeny] that have no applicability here.” Id. at 6, n.2. Those holdings all concerned the broad reach of statutory “omnibus” clauses that prohibited interference with, inter alia, “the due administration of justice” or the “due administration of the Tax Code.” Marinello v. United States, -- S.Ct. --, No. 16-1144, 2018 WL 1402426, at *2-4 (U.S. Mar. 21, 2018) (citations omitted). Contrary to such omnibus clauses, 18 U.S.C. § 1518(a), under which Defendant is charged here, “more narrowly prohibits ‘attempts to . . . mislead, or delay the communication of information or records relating to a violation of a Federal health care offense to a criminal investigator.'” (Dkt. No. 100 at 6-7.) Thus “the concerns for breadth and ambiguity at issue in Aguilar” are not similarly implicated. (Id. at 6, n. 2.) Moreover, even if the Aguilar and progeny's nexus requirement did extend to section 1518(a), there would still be no reason to impose the heightened pleading requirements urged by Defendant here. See United States v. Ho, 651 F.Supp.2d 1191, 1196 (D. Haw. 2009) (rejecting the argument that Aguilar and Anderson created “additional element[s]” beyond statutory language that must be pled).

         (3) Purported violations of Defendant's 6th Amendment Speedy Trial Rights

         Both this court and Magistrate Judge Robertson have already rejected Defendant's Sixth Amendment arguments. While it is true, as Defendant contends, the argument was rejected in the context of her assertion of statutory speedy trial rights, the constitutional arguments she asserted in the statutory context are identical-verbatim in all material respects-to those she asserts here as a basis for dismissal. Defendant's motion to dismiss on these grounds is therefore denied for the reasons put forward in prior orders. (See Dkt. Nos. 118, 120.) As Judge Robertson soundly explained, Defendant's constitutional right to a speedy trial was not violated because Defendant in large part caused the delays complained of and has not suffered the requisite prejudice. (Dkt. No. 118.) Defendant simply repeats the same arguments previously rejected by this court and Judge Robertson. The court's renewed analysis under Barker v. Wingo, 407 U.S. 514 (1972), thus inalterably leads to the conclusion that the argument still lacks merit.

         B. COUNT 1 - Failure to State Offense Due to “Express” Authorization

         Defendant also contends the superseding indictment fails to state an offense under section 1320d-6 of HIPPA because certain regulations promulgated by the Secretary of HHS expressly allow the disclosures she is alleged to have made. (Dkt No. 136 at 7.) The court disagrees and holds the government has sufficiently stated an offense under section 1320d-6.

         As relevant to Count 1, the indictment alleges as follows. Many insurance companies, including those from whom Defendant receives payments, list covered prescription drugs in a “formulary.” (Dkt. No. 89 ¶ 9.) If a drug is not listed in the formulary, insurers will not pay for it (or will pay less) unless the prescribing physician first completes a “Prior Authorization Form” (“PA”) certifying that the drug is “medically necessary” for the insured patient. (Id. ¶ 10.)

         In January 2011, Warner Chilcott launched Atelvia, a medication to which cheaper generic alternatives were readily available. (Id. ¶ 12.) In light of those alternatives, Atelvia was not included in most insurer formularies. (Id.) After receiving “numerous” denials for Atelvia prescriptions, Defendant asked the Warner Chilcott sales representative to assist her medical assistant with PAs. (Id. ¶ 14.) The sales representative agreed and assisted by filling out the PAs directly; during that process he “had access” to and “used” Defendant's patient's protected health information to fill out the PA forms. (Id.) On the basis of those allegations, count 1 charges Defendant with aiding and abetting a violation of 42. U.S.C. § 1320d-6. Specifically, Count 1 charges that Defendant:

did knowingly and without authorization disclose protected individually identifiable health information relating to an individual, that was maintained by a covered entity, as defined in C.F.R. ยง 160.103, to another ...

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