United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION
TO DISMISS INDICTMENT (DKT. NO. 135)
G. MASTROIANNI, UNITED STATES DISTRICT JUDGE.
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.)
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
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
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).
Arguments Previously Addressed
repeats-in large part verbatim-arguments the court has
previously rejected when ruling on her prior
motions. (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.
Duplicity & Specificity
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
Sufficiency of Allegations Supporting Count 3
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).
Purported violations of Defendant's 6th Amendment
Speedy Trial Rights
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.
COUNT 1 - Failure to State Offense Due to
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.
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.)
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. § 160.103, to another ...