United States v. Dixon

UNITED STATES OF AMERICA v. DUANE DIXON

Case No. 6:20-cr-00006

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA LYNCHBURG DIVISION

May 7, 2021

MEMORANDUM OPINION

Pending before the court are the government's motion to exclude time under the Speedy Trial Act (Dkt. No. 33), motion to dismiss without prejudice (Dkt. No. 35), and second motion to exclude time under the Speedy Trial Act (Dkt. No. 49). In addition, Duane Dixon has filed a motion to dismiss with prejudice (Dkt. No. 36) and a motion for disclosure of government information (Dkt. No. 65). These matters have been fully briefed, the court has held a hearing on the motions. For the reasons stated below, the court will grant the government's motion to dismiss without prejudice, deny Dr. Dixon's motion to dismiss with prejudice, deny the government's first motion to exclude speedy trial time, grant the government's second motion to exclude speedy trial time, and deny Dr. Dixon's motion for disclosure of government information.

I. BACKGROUND

In November 2015, the government began investigating Duane Dixon, a medical doctor practicing in Lynchburg, Virginia. (Dkt. No. 5 at 4.) The government initiated the investigation after receiving information from local pharmacists that Dr. Dixon was prescribing unusually large amounts of narcotics. (Id.)

On May 12, 2020, the government filed a two-count information against Dr. Dixon. (Dkt. No. 1.) The information alleges that in May 2015, Dr. Dixon issued a prescription for fentanyl and oxycodone to a patient, without a legitimate medical purpose and beyond the bounds of medical practice. (Id.) Further, the use of these prescriptions resulted in the patient's death. (Id.) On June 12, 2020, Dr. Dixon made an initial appearance before the court and was placed on bond. (Dkt. No. 14.)

On July 2, 2020, Dr. Dixon filed his first motion to dismiss the information, arguing that the prosecution was barred by the statute of limitations. (Dkt. No. 26 at 1.) In addition, Dr. Dixon and the government filed a joint motion to exclude from the Speedy Trial Act calculations the time between July 2, 2020, and the disposition of Dr. Dixon's the motion to dismiss. (Dkt. No. 27.) The court granted the motion to exclude time. (Dkt. No. 29.)

The court held a hearing on Dr. Dixon's first motion to dismiss on September 16, 2020, but the motion remained under advisement until the court's decision on October 26, 2020. Thirty days after the hearing on the motion, on October 16, 2020, the government moved for an exclusion of speedy trial time. (Dkt. No. 33 at 1.) The government explained that the court's prior order (Dkt. No. 29) only excluded time until "hearing on or prompt disposition of the motion [to dismiss]." (Id at 1.) The government filed its second motion to ensure that the time excluded from speedy trial calculations would include all time after the hearing until the disposition of the motion to dismiss and not just thirty days. (Id.)

On October 26, 2020, the court denied Dr. Dixon's motion to dismiss on statute of limitations grounds. (Dkt. No. 34.) The same day, the government filed a motion to dismiss without prejudice "because the parties, notwithstanding efforts, ha[d] not reached any agreement whereby Defendant [was] willing to consent to a jury trial or guilty plea [] in the absence of an indictment" and defendant had not been indicted. (Dkt. No. 35.) On November 2, 2020, Dr. Dixon filed another motion to dismiss, this time seeking dismissal with prejudice pursuant to the Fifth and Sixth Amendments of the United States Constitution, Federal Rule of Criminal Procedure 48(b),and the Speedy Trial Act. (Dkt. No. 36.) Briefing followed and, on January 26, 2021, the court held a hearing on the pending motions, but it did not issue a decision. (Dkt. No. 45.)

On February 25, 2021, the court held a telephonic hearing to discuss a potential conflict of interest involving the court. (Dkt. No. 46.) Judge Moon, then presiding over the case, learned of ongoing grand jury information through a conversation with one of his family members. (Dkt. No. 55 at 3.) Judge Moon explained that he did not believe this to create a conflict in the instant case, but the government sought to have the hearing about this potential conflict on an ex parte basis. (Id. at 4-6.) Dr. Dixon and his counsel were and remain unaware of the subject matter of the potential conflict. (Dkt. No. 65 at 7.)

Shortly after the telephonic hearing and before Judge Moon issued a decision on the pending motions, the court reassigned the case to the undersigned. (Dkt. No. 47.) The government then filed another motion to exclude speedy trial time until the resolution of the pending motions. (Dkt. No. 49.) Dr. Dixon filed a response opposing the new motion to exclude speedy trial time and a motion seeking disclosure of government information. (Dkt. No. 65.) Dr. Dixon argues that he "is entitled to know the subject matter of the information which was the subject of the discussion between the Government and Judge Moon during the hearing on February 25, 2021." (Dkt. No. 65 at 10.) The government opposes disclosure of this information which pertains to an ongoing grand jury matter. (Dkt. No. 69.)

On February 26, 2021, the court held a status conference and set a hearing on the pending motions, which was continued until after briefing. (Dkt. Nos. 50, 54, 66, 68.) On April 7, 2021, the undersigned held a hearing on the pending motions, which are now ripe for resolution.

II. DISCUSSION

A. Motions to Dismiss

Pursuant to Federal Rule of Criminal Procedure 48(a), "[t]he government may, with leave of court, dismiss an indictment, information, or complaint." In addition, "[t]court may dismiss an indictment, information, or complaint if unnecessary delay occurs in . . . presenting a charge to a grand jury." Fed. R. Crim. P. 48(b). Here, both parties seek to dismiss the case under Rule 48 due to the lack of an indictment. However, the parties dispute whether the case should be dismissed with or without prejudice. Dr. Dixon argues that the case should be dismissed with prejudice due to: (1) his rights under the Fifth Amendment Due Process Clause of the United States Constitution; (2) the broad discretion of the court under Rule 48(b); and (3) his rights to a speedy trial. The government argues that the case should be dismissed without prejudice under Rule 48(a). For reasons stated below, Dr. Dixon has failed to show actual prejudice that warrants dismissal with prejudice. Therefore, the court will deny Dr. Dixon's motion to dismiss with prejudice and grant the government's motion to dismiss without prejudice.

1. The Fifth Amendment

The Fifth Amendment of the United States Constitution provides that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . ." The Supreme Court has held that the Fifth Amendment "would require dismissal of the indictment if it were shown at trial that the pre-indictment delay . . . caused substantial prejudice to [defendant's] rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused." United States v. Marion, 404 U.S. 307, 324 (1971). The Fourth Circuit applies "a two-pronged inquiry to evaluate a defendant's claim that pre-indictment delay violated his right to due process." United States v. Uribe-Rios, 558 F.3d 347, 358(4th Cir. 2009) (citing United States v. Automated Med. Labs., Inc., 770 F.2d 399, 403 (4th Cir. 1985)). First, the court evaluates "whether the defendant has satisfied his burden of proving 'actual prejudice.'" Id. "Second, if that threshold requirement is met, [the court] consider[s] the government's reasons for the delay, 'balancing the prejudice to the defendant with the Government's justification for delay.'" Id. (citing Automated Med. Labs., Inc., 770 F.2d at 404).

"[T]he burden of proving [actual] prejudice is clearly on the defendant." Automated Med. Labs., Inc., 770 F.2d at 403. "This is a heavy burden because it requires not only that a defendant show actual prejudice, as opposed to mere speculative prejudice, but also that he show that any actual prejudice was substantial—that he was meaningfully impaired in his ability to defend against the state's charges to such an extent that the disposition of the criminal proceeding was likely affected." United States v. Shealey, 641 F.3d 627, 634 (4th Cir. 2011) (quoting Jones v. Angelone, 94 F.3d 900, 907 (4th Cir. 1996)).

Here, Dr. Dixon fails to meet his burden to prove actual prejudice. Dr. Dixon does not describe any specific examples of prejudice he has suffered from the delay in indictment; instead, he speaks generally to the "loss of memory on the part of the various witnesses involved, the potential for the loss of significant evidence, and difficulty in locating witnesses who may no longer even be in the area." (Dkt. No. 36 at 5.) At this time, there is no evidence of any witnesses who cannot be located, any witnesses who cannot remember, or any evidence that is now lost. Rather, these allegations of prejudice are speculative. Even if such prejudice did exist, there has been no showing of substantial prejudice that would meaningfully impair Dr. Dixon's defense. In addition, Dr. Dixon argues that the "unavailability of patient records after the passage of five years makes it quite difficult for [him] to establish his good faith defense and demonstrate that prescriptions were written within the standards of medical practice." (Dkt. No. 41 at 2.) However, the governmentexplains that Dr. Dixon's lack of access to his former patients' medical records is not a result of the delay in indictment but rather that Dr. Dixon no longer works at the medical practice that holds those records. (Dkt. No. 40 at 4-5.) Moreover, Dr. Dixon makes no allegation that these medical records are at risk of loss or destruction. For these reasons, Dr. Dixon has failed to...