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United States v. Nasher-Alneam

United States District Court, S.D. West Virginia, Charleston

July 29, 2019

UNITED STATES OF AMERICA
v.
MUHAMMED SAMER NASHER-ALNEAM, M.D.

          MEMORANDUM OPINION

          David A. Faber Senior United States District Judge.

         On July 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 ruling.

         Factual Background

         Defendant 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.

         On July 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. § 1956(a)(2)(B)(ii).

         Trial 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

         After 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 Twenty-four);
2) health care fraud resulting in death, in violation of 18 U.S.C. § 1347 and § 2 (Counts Twelve through Fourteen);
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); and
6) international money laundering, in violation of 18 U.S.C. § 1956(a)(2)(B)(ii) (Counts Forty-four through Forty-seven).[1]

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”).[2] The health care fraud counts, Counts One to Twenty-Four, are all new.

         On the 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[3] 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.

         Defendant's 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.[4]

         Defendant's 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.

         After 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.

         I. The Search Warrant

         On 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 asNeurology & 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 criminal offense;
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. § 841(a)(1).

ECF No. 258-1 at 3.

         Of the electronic evidence to be seized, Agent King's affidavit further provided:

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.

         United 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.

         II. Agent King's Testimony

         At the 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.[5] 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 efforts.

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.

         As for 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 fraud?
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?
A: Yes.

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 ...

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