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United States v. Chester

United States District Court, M.D. Alabama, Northern Division

April 20, 2018

UNITED STATES OF AMERICA
v.
JULIO DELGADO AKASH KUMAR WILLIE CHESTER, JR.

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          GRAY M. BORDEN UNITED STATES MAGISTRATE JUDGE

         Various pretrial motions are pending before the court. Defendant Julio Delgado filed two motions to dismiss certain charges against him (Docs. 41 & 111), two motions to strike language from the indictments (Docs. 42 & 112), and two motions for a bill of particulars (Docs. 43 & 113). Defendant Akash Kumar filed his own motion for a bill of particulars (Doc. 128), and Defendant Willie J. Chester, Jr. filed a motion to dismiss certain counts of the Second Superseding Indictment (Doc. 204). For the reasons stated herein, the Magistrate Judge RECOMMENDS that the motions be DENIED.

         I. BACKGROUND

         On November 30, 2017, a Grand Jury sitting within the Middle District of Alabama returned an indictment naming Delgado and three co-defendants in a conspiracy to distribute controlled substances and to commit healthcare fraud. Doc. 1. Generally, the defendants are alleged to have worked in various capacities for a medical office known as “Family Practice” that dispensed prescriptions for opioids and other controlled substances illegitimately and for profit. Delgado had been one of the physicians employed by the medical practice. Doc. 1 at 3. Following his arraignment, Delgado filed three motions seeking, respectively, to dismiss the indictment (Doc. 41), to strike certain language from the indictment (Doc. 42), and to require the Government to file a bill of particulars (Doc. 43).

         The Government opposed the motions (Doc. 45), and the court ordered Delgado to file a reply in support of his requested relief. Before he could do so, however, the Grand Jury returned a Superseding Indictment on January 10, 2018. Doc. 58. This indictment named three additional defendants, including Kumar. Doc. 58 at 1. Delgado later filed his reply in support of the initial motions, but did not address the procedural impact of the intervening Superseding Indictment on those motions. Doc. 67. As a result, the court convened the parties for a telephone conference on January 23, 2018, and thereafter ordered Delgado to file any motions addressing the Superseding Indictment no later than January 26. Doc. 91. Delgado then filed his motions to dismiss the Superseding Indictment (Doc. 111), to strike certain language from the Superseding Indictment (Doc. 112), and to require the Government to file a bill of particulars (Doc. 113), all of which largely restate the arguments made in his previous filings. Meanwhile, Kumar was arraigned on the charges in the Superseding Indictment, which identified him as a member of the billing department for Family Practice. Doc. 58 at 5. Kumar later filed his own motion for a bill of particulars. Doc. 128.

         Before the court could resolve these motions, however, the Grand Jury again returned charges on February 23, 2018 against these and other defendants. This time, the Second Superseding Indictment named Chester as an additional defendant, identifying him as a doctor of osteopathy who had been affiliated with Family Practice. Doc. 146 at 5. In response, Chester filed the pending motion to dismiss the charges against him. Doc. 204. As to the other defendants, the court recognized that the Second Superseding Indictment addressed some of the purported deficiencies of the earlier charging instruments. Accordingly, the parties were ordered to show cause why the motions at issue were not mooted, or alternatively why the motions should not be construed as challenges to the newest charging instrument. Doc. 156. Delgado responded that only one of his arguments for dismissal was resolved and that his motions should be construed as challenges to the Second Superseding Indictment. Doc. 176.

         II. DISCUSSION

         A. Procedural Considerations

         As discussed above, Delgado filed three motions directed to the original indictment (Docs. 41-43), then three essentially parallel motions directed to the Superseding Indictment (Docs. 111-113). In as much as the later-filed motions seek the same relief but merely relate to the amended charging instrument, Delgado's position is that the second batch of motions should supersede the first batch. Doc. 176 at 5. The court agrees and therefore RECOMMENDS that the earlier-filed motions (Docs. 41-43) be DENIED as MOOT.

         However, Delgado's second group of motions preceded the Second Superseding Indictment. Even so, his counsel has represented that the intervening indictment does not materially impact these motions except for mooting one argument contained in the motion to dismiss, as addressed below. Accordingly, the court RECOMMENDS that the Motion to Dismiss Superseding Indictment on Multiple Grounds (Doc. 111) and the Motion to Strike Certain Language from the Superseding Indictment (Doc. 113) be CONSTRUED as challenges to the Second Superseding Indictment rather than the Superseding Indictment. The remaining motion for a bill of particulars (Doc. 112) is not explicitly tied to any charging instrument.

         B. Motions to Dismiss

         1. Drug Conspiracy Count

         In Delgado's pending motion to dismiss (Doc. 111), he alleges a number of pleading deficiencies ostensibly justifying the dismissal of the charges against him. The first is the indictment's failure to include an explicit allegation of willful conduct in the overarching charge for conspiracy to distribute controlled substances. Doc. 111 at 2. Delgado concedes that the Second Superseding Indictment cures this defect. Doc. 176 at 7. Accordingly, the court RECOMMENDS that his motion to dismiss on this basis be DENIED as moot.

         2. Substantive Drug Counts

         Delgado's second dismissal argument is that the substantive drug distribution counts fail to allege the proper mens rea-again, willfulness. He claims that this failure mandates the dismissal of Counts 15 through 21 of the Second Superseding Indictment. Compare Doc. 111 at 3 (challenging Counts 3, 4, 7, 8, 9 and 13 on this basis), with Doc. 176 at 8 (identifying the affected charges in the Second Superseding Indictment). Chester makes the same argument with respect to Counts 13, 17, 18, 20 and 21 of the Second Superseding Indictment. Doc. 204 at 1.

         The argument advanced by both defendants is a straightforward one. The charges in question are 21 U.S.C. § 841 drug distribution counts naming Delgado, Chester, or both men as defendants. In each count, the Second Superseding Indictment charges that the named defendant or defendants were “aided and abetted by others and aiding and abetting others.” Doc. 146 at 15-20. None of the counts use the words “willful” or “willfulness.” Instead, they allege that the defendants and their associates acted “knowingly and intentionally.” See Doc. 146 at 15-20. While ยง 841 does not require willfulness, the defendants argue that the accomplice liability statute, 18 ...


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