United States v. Raheja

UNITED STATES OF AMERICA, PLAINTIFF, v. DEEPAK RAHEJA, et al., DEFENDANTS.

CASE NO. 1:19-cr-559

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

February 8, 2021

JUDGE SARA LIOI

MEMORANDUM OPINION AND ORDER

On September 18, 2019, plaintiff United States of America (the "government") caused an 83-count indictment to issue charging defendants, Deepak Raheja ("Dr. Raheja" or "Raheja"), Gregory Hayslette ("Hayslette"), Frank Mazzucco ("Mazzucco"), and Bhupinder Sawhny ("Dr. Sawhny" or "Sawhny") with conspiracy to solicit, receive, offer, and/or pay healthcare kickbacks; receipt and/or offer to pay kickbacks in connection with a federal healthcare program; and other crimes associated with healthcare fraud. (Doc. No. 1 (Indictment ["Ind."]).) The charges relate to the promotion, distribution, and administration of the drug Nuedexta.

Now before the Court are the following fully briefed motions:

• The government's to quash subpoenas issued pursuant to Fed. R. Crim. P. 17(c) (Doc. No. 115 ["Quash Mot."]), which Raheja opposes (Doc. No. 123 ["Quash Opp'n"]), and to which government has replied (Doc. No. 128 ["Quash Reply"]);

• Raheja's motion for relief from prejudicial joinder (Doc. No. 118 ["Severance Mot."]), which the government opposes (Doc. No. 129 ["Severance Opp'n"]);

• Raheja's motion to dismiss Counts 1, 42, and 77 of the indictment (Doc. No. 121 ["MTD"], for which the government has filed an opposition (Doc. No. 133 ["MTD Opp'n"]); • Raheja's motion to compel Brady disclosures (Doc. No. 119 ["Brady Mot."]), which the government opposes (Doc. No. 131 ["Brady Opp'n"]);

• Raheja's motion to compel discovery pursuant to Fed. R. Crim. P. 16(a)(1)(E) (Doc. No. 120 ["Rule 16 Mot."]), which the government opposes (Doc. No. 132 ["Rule 16 Opp'n"]); and

• Raheja's motion for a bill of particulars (Doc. No. 122 ["Mot. Bill"]), which the government also opposes (Doc. No. 130 ["Opp'n Bill"]).

The Court heard oral argument on the pending motions during a video hearing on January 15, 2021 and, at the conclusion of the hearing, the Court took the motions under advisement.

For purposes of framing the present motions, it is sufficient to note that Avanir Pharmaceuticals, Inc. ("Avanir") developed and manufactured Nuedexta, a medication approved by the Food and Drug Administration ("FDA") solely for the treatment of Pseudo Bulbar Affect ("PBA"). PBA is a neurological condition characterized by involuntary, sudden, and frequent episodes of uncontrollable laughing and crying. Nuedexta is contraindicated for patients with certain medical conditions, including heart rhythm disorders.

Hayslette was employed by Avanir as a pharmaceutical sales representative and was responsible for the marketing of Nuedexta. Mazzucco was his supervisor. Hayslette and others promoted Nuedexta through a speaker program designed to encourage medical providers to prescribe Nuedexta for their patients. Drs. Raheja and Sawhny are medical doctors. Dr. Raheja specializes in psychiatry and neurology, and Dr. Sawhny is a neurosurgeon. It is alleged that Dr. Raheja received speaker fees and other things of value for symposiums that either never took place or had no educational value, and that both Drs. Raheja and Sawhny received kickbacks for prescribing Nuedexta to patients who were falsely diagnosed with PBA and, in some cases, for whom the drug was contraindicated.

I. MOTION TO QUASH

In October and/or November 2020, Raheja caused subpoenas duce tecum to issue to United States Attorney ("USA") Justin Herdman,¹ the law firm of Baker Hostetler, and two of the firm's attorneys—Edmund Searby, Esq, and Justin Withrow, Esq. (See, e.g., Doc. No. 115-1 (10/26/2020 Subpoena Dues Tecum issued to USA Justin Herdman ["Herdman Subpoena"]).) The subpoenas seek any and all documents and communications evidencing former USA Steven Dettelbach's involvement in the criminal investigation and charging of Raheja. They also seek documents and communications relating to Baker Hostetler's brief pre-indictment representation of Raheja.

The subpoenas are premised on the fact that on March 27, 2015, while Dettelbach was the USA for the Northern District of Ohio, he purportedly received in his capacity as USA a courtesy copy of a qui tam action filed against Raheja and Avanir. (See USA ex rel. et al. v. Avanir Pharm., Inc. et al., Case No. 5:15-cv-611, Doc. No. 1 at 34² (Complaint, Certificate of Service)). After Dettelbach left the United States Attorney's Office ("USAO"), he joined the Baker Hostetler law firm wherein he was briefly retained by Raheja (beginning on March 1, 2017) to represent Raheja before he was charged in the instant action.

In his opposition brief, Raheja suggests that Dettelbach might have had an undisclosed conflict created by the fact that he had received the courtesy copy of the qui tam complaint andthat he should not have agreed to represent Rahej as a result. He opines that "the constitutionality of the Indictment ... may be implicated by Dettelbach's representation of Dr. Raheja despite having a conflict of interest." (Quash Opp'n at 1262.) At the motion hearing, defense counsel clarified that Raheja was not accusing Dettelbach or any other attorney of wrongdoing or unethical behavior. Defense counsel underscored the fact that Raheja has no idea whether Dettelbach had an undisclosed conflict or whether he played any role in the investigation that led to the issuance of the present indictment. Nevertheless, counsel suggested that Raheja has the right to explore whether a conflict of interest existed and is entitled to use Fed. R. Crim. P. 17(c) to make this determination.

The Supreme Court has repeatedly emphasized that Rule 17(c) was not intended to expand the scope of discovery in criminal cases. United States v. Nixon, 418 U.S. 683, 698-99, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974). In Nixon, the Supreme Court required parties moving for a pretrial subpoena duces tecum in a criminal matter to show: "(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the parties cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general 'fishing expedition.'" Id. at 699-700 (footnote omitted). Distilled to its essence, the Supreme Court required a showing of relevancy, admissibility, and specificity before issuance of a pretrial subpoena duces tecum. Id. at 700.

As an initial matter, the subpoenas issued to Baker Hostler and its attorneys fail to satisfy the second Nixon factor. At the motion hearing, defense counsel agreed that Raheja, like anyindividual represented by a lawyer in the State of Ohio, has the right to request his client file from any attorney who has previously represented him. See Ohio Prof. Cond. R. 1.4(a)(4). And it is an ethical violation for an attorney to fail to produce a client's file upon request. See, e.g., Cleveland Metro. Bar Ass'n v. Fonda, 7 N.E.3d 1164, 1168 (Ohio 2014). Because Raheja can obtain his client file from Dettelbach or any other attorney who has previously represented him, which would certainly contain much of the information he seeks (if such information actually exists), Raheja cannot demonstrate that the requested documents are not "otherwise procurable reasonably in advance of trial by exercise of due diligence[.]" Nixon, 418 U.S. at 699. These subpoenas are quashed.³

This leaves the Herdman Subpoena. The government insists that this subpoena seeks materials that are neither relevant nor admissible and that the requests contained therein further lack the necessary specificity. The Court agrees on all fronts. Relevant evidence is evidence having "any tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the action." Fed. R. Evid. 401. In United States v. Wittig, 250 F.R.D. 548, 550-51 (D. Kan. 2008), a defendant issued a Rule 17(c) subpoena to his former employer seeking evidence regarding his former employer's role in the criminal investigation that led to his indictment. In quashing the subpoena on relevance grounds, the court noted that the "documents defendant seeks do not relate to whether or not he committed any of these or other acts alleged in the [indictment]." Id. at 553; see also United States v. Skeddle, 178 F.R.D. 167, 170 (N.D. Ohio 1996) (subpoenas seeking extent to which companywas exercising control over criminal investigation were improperly being used to develop a record to challenge the exercise of prosecutorial discretion leading to the indictment). Likewise, that the possibility exists that Attorney Dettelbach might have disregarded a conflict by virtue of any participation (which is highly speculative) that he may have had in the charging process in this case—which was not indicted until after Dettelbach left the USAO—does not make it any more probable or less probable that Raheja committed the charged crimes.

Raheja also fails to demonstrate how the requested materials would be admissible at a trial on the charges in the indictment. See United States v. Cuthbertson, 652 F.2d 189, 192 (3d Cir. 1981) (noting that "only materials that are 'admissible as evidence' are subject to subpoena under [Rule 17(c)]"). Again, the presence or absence of a potential conflict of interest by a former attorney has no bearing on the charges in the indictment and could not be introduced as evidence to rebut those charges. Rule 17(c) is not available to pursue documents and other materials that are not admissible at trial. See United States v. Rand, 835 F.3d 451, 463 (4th Cir. 2016) ("The right to defend oneself does not extend to using the power of the Court to compel third parties to provide information that may not...