United States v. Abellana

1

UNITED STATES OF AMERICA, Plaintiff, v. D-2 EDUARDO ABELLANA, M.D. Defendant.

Criminal No. 20-cr-20144

United States District Court, E.D. Michigan, Southern Division

April 29, 2024

OPINION AND ORDER DENYING DEFENDANT'S MOTIONS TO DISMISS (ECF NOS. 76, 78)

LINDA V. PARKER U.S. DISTRICT JUDGE

These matters are before the Court on Defendant Eduardo Abellana's (“Defendant”) motions to dismiss the five-count Second Superseding Indictment. (ECF No. 72.) Defendant argues for dismissal of Counts I-IV based on violations of his right to a speedy trial under both the Sixth Amendment of the United States Constitution and the Speedy Trial Act, 18 U.S.C. § 3161 et seq. (ECF No. 78.) He argues for dismissal of Count V based on vindictive prosecution. (ECF No. 76.)

The motions have been fully briefed. (ECF Nos. 76-78, 80, 82 84-85.) Finding the facts and legal arguments adequately presented in the parties' filings, the Court is dispensing with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f). See Local Crim. Rule 12.1(a) (“Motions in criminal cases shall be filed in accordance with the procedures set forth in LR 7.1.”). For the following reasons Defendant's motions are denied.

I. LEGAL STANDARD

Motions to dismiss criminal cases are governed by Rule 12 of the Federal Rules of Criminal Procedure. Rule 12 states that a defendant may move to dismiss an indictment alleging “a violation of the constitutional right to a speedy trial” and “selective or vindictive prosecution.” Fed. R. Crim. P. 12(b)(3)(A)(iii)-(iv). “A motion to dismiss is limited to the four corners of the indictment and [] the allegations are assumed to be true and viewed in the light most favorable to the Government.” United States v. Nwoke, No. 18-20686, 2020 WL 674345, at *2 (E.D. Mich. Feb. 11, 2020) (alteration added) (citation omitted); see also United States v. Landham, 251 F.3d 1072, 1080 (6th Cir. 2001) (stating that a trial court does not evaluate the evidence upon which the indictment is based in ruling on a motion to dismiss).

II. FACTUAL AND PROCEDURAL BACKGROUND

On September 9, 2021, Defendant, a licensed physician, and Auday Maki (“Maki”), a registered pharmacist, were indicted in a four-count superseding indictment with one count of conspiracy to commit health care fraud and wire fraud in violation of 18 U.S.C. § 1349 and three counts of health care fraud in violation of 18 U.S.C. §§ 1347 and 2. (ECF No. 22.)

The superseding indictment alleged that Defendant wrote prescriptions without examining patients and without notifying them that he was prescribing the medications. (Id. ¶ 32.) It further alleged that Defendant would have these prescriptions filled at City Drugs Pharmacy (“City Drugs”), a pharmacy partially owned by Maki. (Id. ¶ 33.) Maki and a co-conspirator, identified as Individual A, allegedly, would then file claims with Medicare, Medicaid, and others for the prescriptions written by Defendant, even though they were unnecessary, and City Drugs lacked inventory to dispense the medications. (Id. ¶ 34.)

The Court has addressed much of this matter's procedural history, as it relates to the Speedy Trial Act, in its Opinion and Order Granting the Government's Motion to Continue Trial Date and Find Excludable Delay. (See ECF No. 70.) To summarize, Maki was solely indicted on March 10, 2020, with three counts of health care fraud in violation of 18 U.S.C. §§ 1347 and 2. (ECF No. 1.) That same day, the Governor of the State of Michigan declared a State of Emergency due to an outbreak of COVID-19. (See E.D. Mich. Administrative Order 20-AO-021). As a result, “[a]ll civil and criminal matters scheduled for incourt appearance[s] before any district or magistrate judge in the Eastern District of Michigan [were] postponed pending further order of the Court.” (Id. (alterations added).)

On September 9, 2021, the Government filed the superseding indictment against Defendant and Maki. (ECF No. 22.) On March 4, 2022, the Court entered a scheduling order setting this matter for trial on June 28, 2022. (ECF No. 39.) Two stipulations and orders were jointly filed by the parties to extend deadlines based on COVID-19 concerns. (See ECF Nos. 41, 45.) These stipulations delayed the expected trial date from June 28, 2022, to January 25, 2023. (Id.)

On January 10, 2023, Maki pled guilty pursuant to a Rule 11 plea agreement. (ECF No. 53.) On January 19, 2023, the parties filed a third stipulation and order, advising that plea negotiations are ongoing, and a trial may not be necessary. (See ECF No. 56.) The trial was rescheduled to May 16, 2023. (Id.)

On April 25, 2023, the Court conducted a final pretrial conference where the Government advised that plea negotiations have failed and issues with electronic discovery, namely the imaging of cell phones, might further delay the trial. (See ECF No. 62.) On April 26, 2023, the Government filed a motion to continue the trial date to July 3, 2023, and to find excludable delay. (ECF No. 61.) Defendant opposed the motion, argung that “there is no reasonable basis” for granting a continuance because “[t]he government's failure to exercise due diligence in the investigation and prosecution of this matter is not a basis to find excludable delay.” (ECF No. 63 at PageID. 432.)

The Court granted the Government's motion. (ECF No. 70.) In granting the motion to continue, and addressing speedy-trial concerns, the Court held: (1) once Defendant was indicted as a co-defendant with Maki, he became subjected to the existing excludable delay already found for purposes of the Speedy Trial Act; (2) given the successive adjournments, the Speedy Trial clock has yet to run; and (3) delays by the Government in discovering that there were still cell phones that needed to be imaged, reviewed for privilege, and produced to Defendants did not amount to a lack of diligence. (Id. at PageID. 521-22.) The Court scheduled this matter for trial on August 22, 2023, as counsel for Defendant advised that a conflict prevented this matter from being scheduled in July. (Id. at PageID. 523.)

On June 13, 2023, citing new evidence from Maki's guilty plea and interviews with Defendant's colleague, the Government filed the Second Superseding Indictment which: (1) removed Maki as a co-defendant; (2) identified Individual A as Hassan Abdallah; and (3) added Count V - conspiracy to defraud the United States and Receive Kickbacks in violation of 18 U.S.C. § 371. (ECF No. 72.) The previous four counts remained intact.

On August 9, 2023, the parties filed a fourth joint stipulation and order to extend the deadlines and trial date, stating that a continuance is necessary in light of the new count in the Second Superseding Indictment. (ECF No. 79.) The Court scheduled this matter for trial on February 6, 2024. (Id.) On August 23, 2023, the parties filed a fifth joint stipulation and order to extend the deadlines and trial date, advising that a separate case in which counsel for both parties are involved was already scheduled for trial during that time. (ECF No. 83.) The matter is now set for trial on May 14, 2024. (Id.)

Parties' Arguments - Speedy Trial

Defendant seeks to dismiss Counts I-IV, with prejudice, arguing: (1) his statutory right to a speedy trial has been violated under the Speedy Trial Act, as the Government's previous motion to continue the trial was for tactical purposes, not discovery reasons, (see ECF No. 78 at PageID. 580-81); (2) his constitutional right to a speedy trial under the Sixth Amendment has been violated (see id. at PageID. 583); and (3) dismissal pursuant to Federal Rule of Criminal Procedure 48 is appropriate where, as here, there has been unnecessary delay in bringing the Defendant to trial (see id. at PageID. 587-88)

The Government argues that the Court considered, and rejected, these same arguments when the Court ruled on the Government's Motion to Continue Trial Date and Find Excludable Delay. (ECF No. 82 at PageID. 635.) The Government further argues that the only new argument Defendant raises, with regard to the Government misrepresenting the status of discovery resulting in delay for tactical purposes, is untrue. (Id. at PageID. 645.)

Parties' Arguments - Prosecutorial Vindictiveness

Defendant argues that Count V should be dismissed because he has been subject to a vindictive prosecution. (ECF No. 76.) He argues that the Government brought Count V in response to him rejecting the Government's plea offer and asserting his right to trial. (Id. at PageID. 557.)

Specifically he argues that: (1) the timing of the Second Superseding Indictment is objective evidence of vindictiveness as the Government uncovered no new evidence between May 16, 2023, the expected trial date and June 13, 2023, the date of the Second Superseding indictment, (see id. at PageID. 562-65); (2) the Second Superseding Indictment increases the maximum sentence by five years, (see id. at PageID. 565); (3) his alleged co-conspirators were never charged with an 18 U.S.C. § 371 kickback conspiracy, which is evidence of vindictiveness, (see id.); (4) the Government seeks to deter trials in favor of plea bargains as “it would be impossible to try these cases if even half of the defendants asserted their speedy trial rights,” (see id. at PageID. 566); and (5) the Government's conduct of seeking to introduce his gambling activity through a motion in limine is unreasonable, (see id. at PageID. 567).

The Government responds by arguing that: (1) Count V is not vindictive as it is the result of information not previously available, including co-defendant Maki accepting the Government's plea offer, and interviews with Defendant's colleague Dr. Emilio Limchoa, where Defendant allegedly asked Dr. Limchao if he would like to make...