United States v. Ritchey

1

UNITED STATES OF AMERICA v. KENNETH BRYAN RITCHEY

No. 1:21-cr-6-HSO-RPM-1

United States District Court, S.D. Mississippi, Southern Division

July 27, 2022

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT KENNETH BRYAN RITCHEY'S MOTION [93] TO SUPPRESS

HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.

BEFORE THE COURT is Defendant Kenneth Bryan Ritchey's Motion [93] to Suppress. This Motion is fully briefed. After due consideration of the Motion [93], the parties' submissions, the record, and relevant legal authority, the Court finds that the Motion [93] should be denied.

I. BACKGROUND

On January 12, 2021, a Grand Jury returned a four-count Indictment [3] against Defendant Kenneth Bryan Ritchey (“Defendant” or “Ritchey”) charging him with conspiracy to commit mail fraud and wire fraud in violation of 18 U.S.C. § 1349 (Count 1); conspiracy to defraud the United States in violation of 18 U.S.C. § 371 (Count 2); conspiracy to hoard designated scarce materials in violation of 18 U.S.C. § 371 (Count 3); and hoarding designated scarce materials in violation of 50 U.S.C. §§ 4512 and 4513 (Count 4). Ind. [3] at 15-24. These charges related to Ritchey's alleged participation in a scheme to defraud the United States and other health care providers through the acquisition and resale of personal protective equipment (“PPE”) and other designated materials at excessive prices (the “PPE scheme”). Id at 9-15. The Indictment [3] alleged that Ritchey was the operator of Gulf Coast Pharmaceuticals Plus, LLC (“GCPP”), “a wholesale pharmaceutical distributor,” and that his co-conspirators worked for GCPP. Id. at 11.

The Government continued its investigation of Ritchey, which included conducting interviews with his alleged co-conspirators. On January 27, 2021, Government agents interviewed a former GCPP sales representative, subsequently identified in the Superseding Indictment [33] as Co-Conspirator 12. Ex. 1 [49-1] at 1. During this interview, Co-Conspirator 12 revealed information relating to an invoice backdating scheme at GCPP. Id. at 5-9. Specifically, Co-Conspirator 12 described a scheme in which GCPP, through Ritchey and other employees, allegedly backdated invoices for use in audits of pharmacies it sold products to in order to conceal that these pharmacies did not dispense, or carry in stock, the medications for which the pharmacies had billed insurance companies (the “invoice backdating scheme”). Id.

On March 2, 2021, Government agents conducted an interview with GCPP's head buyer, later identified in the Superseding Indictment [34] as Co-Conspirator 3. Ex. 2 [93-2] at 1. Although he initially denied any knowledge of this scheme, CoConspirator 3 admitted to playing a role in the invoice backdating scheme. Id. at 8; see also Ex. 3 [49-3] at 8. On May 11, 2021, Co-Conspirator 3 again met with a Government agent and agreed to record conversations between himself and Ritchey. Ex. 4 [93-4] at 1. Co-Conspirator 3 was provided a recording device “in order for him to make recorded phone calls at the direction of agents.” Id. The Government asserts that it instructed Co-Conspirator 3 “not to elicit any privileged information” from Ritchey, but it has not submitted any evidence to support this assertion. Resp. [98] at 3; see also Ex. 4 [93-4] at 1. Two days later, the Government met with Ritchey's attorneys and informed them that the Government was investigating Ritchey's involvement in the invoice backdating scheme. Mot. [93] at 9; Resp. [98] at 3.

On August 3, 2021, Co-Conspirator 3 once again met with Government agents and divulged that he had recorded every conversation, consisting of approximately 100 recordings, between himself and Ritchey since receiving the recording device. Ex. 3 [93-3] at 2. The Government collected the recordings and turned them over to its filter team for “review and further analysis.” Id. at 10. The Government states that these recordings were released to the prosecution team after its filter team determined that “no privileged information or information relating to the PPE [s]cheme was captured on the recordings.” Resp. [98] at 4.

On September 21, 2021, the Grand Jury returned a Superseding Indictment [33] in this case, charging Ritchey in six counts: (1) conspiracy to commit health care fraud and wire fraud in violation 18 U.S.C. § 1349 (Count 1); (2) false statements relating to health care matters in violation of 18 U.S.C. §§ 1035 and 2 (Count 2); (3) conspiracy to commit wire fraud and mail fraud in violation of 18 U.S.C. § 1349 (Count 3); (4) conspiracy to defraud the United States in violation of 18 U.S.C. § 371 (Count 4); (5) conspiracy to hoard designated scarce materials in violation of 18 U.S.C. § 371 (Count 5); and (6) hoarding designated scarce materials in violation of 50 U.S.C. §§ 4512 and 4513 (Count 6). Sup. Ind. [33] at 23-35. Counts 1 and 2 relate to Ritchey's alleged involvement in the invoice backdating scheme, whereas Counts 3 through 6 arise from Ritchey's purported participation in the PPE scheme. Id.

Ritchey has filed the present Motion [93] to Suppress, seeking to suppress all of the recordings made by Co-Conspirator 3 as obtained in violation of his Sixth Amendment right to counsel. Mot. [93] at 1, 15. Ritchey contends that his Sixth Amendment right to counsel attached prior to Co-Conspirator 3 recording their conversations, that Co-Conspirator 3 was acting as a Government agent, and that Co-Conspirator 3 deliberately elicited incriminating statements from him. Id. at 511. Ritchey asserts that the Government violated 28 U.S.C. § 530B and Mississippi Rule of Professional Conduct 4.2 by directing Co-Conspirator 3 to record his conversations with Ritchey when it knew he was represented by counsel. Id. at 1314. Finally, Ritchey requests a hearing to ensure that all recordings and any other evidence obtained as a result of the recordings is suppressed. Id. at 15.

The Government responds that Ritchey's Sixth Amendment rights were not violated because his right to counsel had not attached for the charges arising from the invoice backdating scheme. Resp. [98] at 6-7. Specifically, it contends that the Superseding Indictment [33] charges two separate schemes and that the charges in each scheme do not constitute the same offense under the test announced in Blockburger v. United States, 284 U.S. 299 (1932). Id. at 8-10. The Government also argues that Co-Conspirator 3's conduct did not violate any ethical or professional rules because it was “authorized by law.” Id. at 10-14.

II. DISCUSSION

A. Sixth Amendment right to counsel

1. Relevant legal standard

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). In McNeil, the Supreme Court explained that the Sixth Amendment right to counsel is “offense specific,” meaning that “it does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings-whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Id. at 175 (citations and internal quotation marks omitted). Although the Sixth Amendment right to counsel is offense specific, the “definition of an ‘offense' is not necessarily limited to the four corners of a charging instrument.” Texas v. Cobb, 532 U.S. 162, 172-73 (2001). Instead, the Supreme Court in Cobb held that the Sixth Amendment right to counsel extends to “offenses that, even if not formally charged, would be considered the same offense under the Blockburger test.” Id. at 173; see also id. (“We see no constitutional difference between the meaning of the term ‘offense' in the contexts of double jeopardy and of the right to counsel.”).^[1] Under the Blockburger test, “where the same act or transaction constitutes a violation of two distinct statutory provisions” the court determines “whether there are two offenses or only one” by considering “whether each provision requires proof of a fact which the other does not.” Blockburger, 284 U.S. at 304. Stated differently, “if each crime requires an element of proof not required by the other crimes charged,” meaning that they are “factually distinct,” then the crimes are not the same offense. United States v. Delgado, 256 F.3d 264, 272 (5th Cir. 2001).

When applying Blockburger to conspiracy cases, “the central issue . . . is whether there was one agreement and one conspiracy or more than one agreement and more than one conspiracy.” United States v. El-Mezain, 664 F.3d 467, 546 (5th Cir. 2011) (citation omitted). The United States Court of Appeals for the Fifth Circuit has identified five factors to assist courts in evaluating whether there was more than one agreement:

(1) time; (2) persons acting as co-conspirators; (3) the statutory offenses charged in the indictments; (4) the overt acts charged by the [G]overnment or any other description of the offense charged that indicates the nature and scope of the activity that the [G]overnment sought to punish in each case; and (5) places where the events alleged as part of the conspiracy took place.

Delgado, 256 F.3d at 272; United States v. Njoku, 737 F.3d 55, 69 (5th Cir. 2013) (applying these factors to a double jeopardy claim based on a previous conviction under 18 U.S.C. § 1349). In this analysis, no one factor is determinative. Njoku, 737 F.3d at 69.

2. The parties' arguments

Ritchey argues that Co-Conspirator 3, acting at the direction of the Government, elicited allegedly incriminating statements from him in violation of his Sixth Amendment right to counsel. Mot. [93] at 5-6. Although he had only been indicted and arraigned on the charges for the PPE scheme in the...