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United States v. Clarkson

United States District Court, S.D. West Virginia, Beckley Division

November 6, 2019

UNITED STATES OF AMERICA
v.
MARK A. CLARKSON, D.O., and BRIAN GULLETT, D.O.

          ORDER

          Omar J. Aboulhosn, United States Magistrate Judge

         Pending before the Court is Defendant Clarkson's Second Motion for Bill of Particulars (ECF No. 625) filed on October 15, 2019 which motion has been joined by Defendant Gullett (ECF No. 642). On October 22, 2019, the Government filed the Response of the United States to Defendants' Second Motion for Bill of Particulars in opposition (ECF No. 690).[1]

         Background

         As noted above, this is the second time Defendant Clarkson filed a motion for a bill of particulars.[2] This Court denied his initial motion on September 3, 2019 (ECF No. 601). These motions pertain to two of twelve defendants indicted collectively in February 2018 on several felony violations of the Controlled Substances Act as employees and/or operators of the HOPE Clinic. Initially, Defendants Clarkson and Gullett were indicted on eight and six counts, respectively. In March 2018, these twelve defendants were indicted for additional felony violations in a superseding indictment. Defendants Clarkson and Gullett were indicted for an additional eight and six counts, respectively. In June 2018, these twelve defendants were indicted on a second superseding indictment; again, Defendants Clarkson and Gullett were indicted for an additional eight and six counts, respectively. In November 2018, eleven of these defendants were indicted in a third superseding indictment; again, Defendants Clarkson and Gullett were indicted for an additional eight and six counts, respectively.

         Defendants' Motion for Bill of Particulars

         With regard to Count One of the Third Superseding Indictment, Defendants move for an order from this Court that compels the Government to disclose with greater specificity:

whether the Government contends they were ever owners/operators of HOPE or PPPFD or whether they were ever executives and/or occupied policy making positions for these entities;
as to ¶ 2, what is alleged to constitute a “large amount of controlled substances” and what is alleged to constitute “a significant number”;
as to ¶ 22, the names of the patients treated by these Defendants who the Government believed to have been engaged in “doctor shopping”;
as to ¶ 25, does the Government contend that during the period of the alleged conspiracy that the laws of the United States, West Virginia or Virginia require pain clinics to bill insurance companies for patient accounts payable, not accept cash in settlement of patient accounts, not accept new patients without a referral from a physician independent of HOPE, not accept new patients who cannot present a certain statutorily specified type or quantity of medical history documentation, to prescribe and provide certain types of treatment under any specified circumstance to the specified exclusion of opioid therapy, and to hire only practitioners with statutorily or rule-specified credentials or background in pain management;
as to ¶ 31, the names of the patients with whom Defendants allegedly directed to a particular pharmacy to have their prescriptions filled; and
as to ¶ 32, the Government's definition of “commercially available drugs” and the statutory or regulatory basis for the Government's allegations that the prescribing of a compounded medication by a practitioner is in se a criminal act.

         As to Counts 1, 19, and 30[3] of the Third Superseding Indictment, Defendant Clarkson further requests the Government to state with specificity the statute, rule, or case law wherein the following are defined: “legitimate medical purpose”; “the usual course of professional medical practice”; and “not within the bounds of medical practice”. Further, Defendant Clarkson requests the Government to state with specificity the statute, rule, or case law where the meaning of “not for legitimate medical purposes in the course of professional medical practice and not within the bounds of medical practice” is established.

         As to Count 37 of the Third Superseding Indictment which concerns conspiracy, Defendant Clarkson requests the Government to state with specificity the amount of money HOPE paid him as salary, the amount of money HOPE paid him as a bonus or bonuses, the quantity of money allegedly laundered by this Defendant, whether such money was paid to him for any reason other than salary or bonus, and to provide the citation of any federal or state/commonwealth ...


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