United States District Court, S.D. West Virginia, Charleston
A. Faber Senior United States District Judge.
22, 2019, the court held a hearing on defendant's motion
to suppress. (ECF No. 258). Present at that hearing were the
defendant, in person and by counsel, Isaac R. Forman, Michael
B. Hissam, and Katherine B. Capito, and Assistant United
States Attorneys Alan G. McGonigal, Jennifer Rada Herrald,
and Steven I. Loew. On the morning of July 23, 2019, in open
court, the court granted defendant's motion insofar as it
moved to suppress certain evidence related to Counts Fifteen
through Twenty-Four of the Third Superseding Indictment. This
Memorandum Opinion sets out more fully the reasons for that
Muhammed Samer Nasher-Alneam, M.D. (“Dr. Nasher) is a
medical doctor licensed to practice medicine in the State of
West Virginia. See ECF No. 223 at ¶ 1 (Third
Superseding Indictment). From on or about July 2013 through
February 2015, Dr. Nasher owned and operated a medical
practice called "Neurology & Pain Center,
PLLC," which, during that time, was located at 401
Division Street, Suite 202 in South Charleston, Kanawha
County, West Virginia. Id. at ¶¶ 2-3. From
about March 2015 through about February 2018, the
defendant's medical practice was located at 4501
MacCorkle Avenue SE, Suite A, in Charleston, Kanawha County,
West Virginia. See id. at ¶ 3. The defendant
leased the office spaces described above and was the only
practicing physician at Neurology & Pain Center, PLLC.
See id. During the relevant time period, Dr. Nasher
had an active Drug Enforcement Administration (DEA)
registration number that allowed him to prescribe controlled
substances, including Schedule II, III, IV, and V controlled
substances. See id. at ¶ 8.
26, 2018, the grand jury returned a 15-count indictment
against Dr. Nasher arising out of his activities in
connection with Neurology & Pain Center, PLLC.
See ECF No. 1. A twenty-two count second superseding
indictment was returned on November 21, 2018, charging
defendant with illegal drug distributions, in violation of 21
U.S.C. § 841(a)(1); illegal drug distributions resulting
in death, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C); maintaining a drug-involved premises, in violation
of 21 U.S.C. § 856(a)(1); and international money
laundering, in violation of 18 U.S.C. §
on the second superseding indictment began on April 16, 2019.
After the jury was unable to reach a verdict on any of the
twenty-two counts, a mistrial was declared on May 7, 2019.
Defendant invoked his rights under the Speedy Trial Act and
the retrial was scheduled for July 22, 2019
the declaration of a mistrial, on June 12, 2019, Dr. Nasher
was charged in a forty-seven count third superseding
indictment charging him with various offenses related to
operation of his medical practice. Specifically, defendant
was charged with the following:
1) health care fraud, in violation of 18 U.S.C. § 1347
and § 2 (Counts One through Eleven and Fifteen through
2) health care fraud resulting in death, in violation of 18
U.S.C. § 1347 and § 2 (Counts Twelve through
3) illegal drug distributions, in violation of 21 U.S.C.
§ 841(a)(1) (Counts Twenty-five through Thirty-eight);
4) illegal drug distributions resulting in death, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Counts
Thirty-nine through Forty-one);
5) maintaining a drug-involved premises, in violation of 21
U.S.C. § 856(a)(1) (Counts Forty-two and Forty-three);
6) international money laundering, in violation of 18 U.S.C.
§ 1956(a)(2)(B)(ii) (Counts Forty-four through
See ECF No. 223. The government maintains that its
decision to seek a third superseding indictment arose out of
adverse evidentiary rulings in the prior trial. See
ECF Nos. 248 and 215-2. (noting that “its objective in
seeking a third superseding indictment would be to address
new circumstances occasioned by adverse evidentiary rulings
during the trial of this case”). The health care
fraud counts, Counts One to Twenty-Four, are all new.
evening of July 15, 2019, less than a week before the second
trial was scheduled to begin, defendant filed the instant
motion to suppress. Because of the looming trial date, the
court suggested scheduling a suppression
hearing for the morning of July 22 and continuing
the trial to the next day. However, in order to accommodate
certain witness availability issues the government would have
if the trial were to be continued to July 23, the court held
the suppression hearing the morning of July 22 and proceeded
to jury selection that afternoon.
motion to suppress was two-pronged. First, defendant argued
that the search warrant was overbroad and that the affidavit
accompanying the application for the warrant contained
several false statements. The court denied defendant's
motion insofar as it alleged overbreadth and/or that the
legitimacy of the warrant was in question based upon alleged
misrepresentations in the affidavit.
second argument was that the government could not rely upon
the one and only search warrant in this case to conduct
searches in furtherance of its fraud investigation.
See ECF No. 258 at 4. According to defendant,
“the government's subsequent searches - in
furtherance of its fraud investigation - violate Rule
41(e)(2)(B).” Id. at 5. The government
contends that this argument fails because
the information and evidence reviewed by the United States in
formulating the Third Superseding Indictment was already in
its possession as a result of the previously issued warrant
and search. The health care fraud schemes now charged are
directly related to and arise out of the § 841 charges
that were the subject of the initial warrant. The evidence
the United States seeks to introduce in the second trial of
this matter includes information obtained within the scope of
SA King's original affidavit and the warrant signed by
Magistrate Judge Tinsley on February 21, 2018. The
warrant's fourteen-day limitation in no way prevents the
United States from analyzing or reviewing the evidence seized
outside of that fourteen-day window. The defendant's
argument to the contrary is meritless.
ECF No. 263 at 15.
hearing the evidence at the suppression hearing, reviewing
the cases cited by the parties, and conducting its own
research, the court granted the motion to suppress as to
evidence seized in support of the government's office
absence health care fraud theory charged in Counts Fifteen
through Twenty-Four. What follows are the court's
findings of fact and conclusions of law.
The Search Warrant
February 21, 2018, FBI Special Agent Jennifer L. King applied
for a warrant to search Dr. Nasher's medical office at
4501 MacCorkle Avenue SE for evidence of the commission of
violations of 21 U.S.C. § 841(a)(1). See ECF
No. 258-1. In support of its warrant application, the
government relied on the affidavit of Agent King. See
id. (hereinafter “King Aff. At ¶”);
see also In the Matter of the Search of Business known
as “Neurology & Pain Center, PLLC”
located at 4501 Maccorkle Ave SE, Suite A,
Charleston, Kanawha County, West Virginia, No.
2:18-mj-00021, ECF Nos. 3 and 10. Agent King's affidavit
and the application for a search warrant provided that there
was probable cause to believe that a search would reveal
evidence related to a violation of 21 U.S.C. §
841(a)(1), “distribution of controlled substances not
for legitimate medical purposes in the usual course of
professional medical practice and beyond the bounds of
medical practice.” See King Aff. at
¶¶ 2, 39; ECF No. 258-1 at 1. The particular items
to be seized were described as follows:
1. Property that constitutes evidence of the commission of a
criminal offense, specifically violations of 21 U.S.C. §
841(a)(1) (distribution of controlled substances not for
legitimate medical purposes in the usual course of
professional medical practice and beyond the bounds of
medical practice); and property designed or intended for use
or which is or have been used as a means of committing said
2. Patient files and medical charts for any patient who saw
Dr. Nasher in 2013, 2014, 2015, 2016, 2017, and/or 2018 (in
whatever form, including electronic medical records and audio
files); that is, 2013 - 2018 patient files/charts for
patients within Dr. Nasher's practice, which files and
charts are believed to contain evidence of the distribution
of controlled substances, such as oxycodone or hydrocodone,
Schedule II controlled substances, not for legitimate medical
purposes in the usual course of professional medical practice
and beyond the bounds of medical practice; and
3. Documents and other items tending to establish or hide the
whereabouts of proceeds and any items constituting proceeds
from violations of 21 U.S.C. § 21 U.S.C. §
ECF No. 258-1 at 3.
electronic evidence to be seized, Agent King's affidavit
Based on the foregoing, and consistent with Federal Rule of
Criminal Procedure 41(e)(2)(B), the warrant I am applying for
would permit seizing, imaging, or otherwise copying storage
media that reasonably appear to contain some or all of the
evidence described in Attachment B, and would authorize a
later review of the media or information consistent with the
warrant. The later review may require techniques, including
but not limited to computer-assisted scans of the entire
medium, that might expose many parts of a hard drive to human
inspection in order to determine whether it is evidence
described by the warrant.
King Aff. ¶ 35.
States Magistrate Judge Dwane L. Tinsley granted the
application, granted the government's motion to seal the
application and accompanying affidavit, and issued a search
warrant for Dr. Nasher's medical practice. See
ECF Nos. 2 and 4 in 2:18-mj-00021. The search warrant does
not mention health care billing fraud or Dr. Nasher's
absences from his office as evidence of a crime. Nor can
health care billing fraud be inferred from any of the
underlying documents, including the affidavit which does not
mention it either.
Agent King's Testimony
suppression hearing, Agent King testified about the execution
of the search warrant. See ECF No. 278. According to
her, paper patient files from the years 2013 to 2018 were
seized as well as the files of any known overdose victims.
See id. at 20. In terms of seizing the electronic
records of Dr. Nasher's practice, Agent King stated that
the server for the practice was “imaged.” See
id. at 22. Of efforts to segregate electronic data
that was responsive to the search warrant from data that was
nonresponsive, Agent King testified that there were no such
Q: So if the entire server was imaged, what was done to sort
out documents that were responsive included within the search
as opposed to documents that would have been nonresponsive
and not within the scope of the warrant?
A: I'm not really sure of the question.
Q: If the warrant was limited, for example, to patients who
had seen Dr. Nasher between 2013 and 2018, what was done to
limit the review of the - -if the entire server had been
seized and imaged, what was done to sort out the contents of
that server to be consistent with the scope of the warrant?
A: Well, I was not able to review like medical files that
were processed. We chose our patients. And then as we talked
to Jamie Swartwood, she would pull those specific
patients' files and those are the ones we reviewed.
Id. Of the process for deciding which patient charts
were pulled for review, Agent King stated that a DOMEX
analysis was used to tell the government “what patient
was getting high opioids, what patient was getting benzos and
opioids, and then we would have a list of patients that way.
. . . Based on that, we were like, hey, we want to look at A,
B, and C. And then they pulled up medical files and we'd
look at it.” Id. at 23-24. Agent King
testified that somewhere between 19 and 50 or so patient
files were eventually pulled for review. See id. at
25, 27. According to her, those charts were pulled somewhere
between the execution of the search warrant in February 2018
and the filing of the first indictment. See id. at
27-28. Agent King further testified that “[w]e might
have extracted additional ones after he was arrested.”
Id. at 28.
the timing of the search of medical records to support the
billing fraud charges, Agent King testified:
Q: Did you work with DOMEX on extracting any charts during
that time period on - - related to the issue of billing
A: Billing fraud, no. The billing fraud did not come - - we
weren't working on billing fraud at that time.
Q: When did you start working on billing fraud?
A: After the trial.
Q: After the first trial?
Id. at 28. Agent King later qualified her answer.
A: You know what. There was billing. And Donna Taylor of the
West Virginia Insurance Commission was working on a bunch of
this stuff throughout the case. I'm ...