United States District Court, M.D. Alabama, Northern Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
M. BORDEN UNITED STATES MAGISTRATE JUDGE
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
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).
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.
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.
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.
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.
Motions to Dismiss
Drug Conspiracy Count
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
Substantive Drug Counts
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.
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 § 841 does not require
willfulness, the defendants argue that the accomplice
liability statute, 18 ...