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United States of America v. Gustave Drivas

July 19, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
GUSTAVE DRIVAS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Roanne L. Mann, United States Magistrate Judge:

MEMORANDUM AND ORDER

In this Medicare fraud prosecution, defendants Gustave Drivas ("Drivas") and Yuri Khandrius ("Khandrius") (collectively, "defendants") have each moved for a bill of particulars pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure. See Khandrius Motion for Bill of Particulars and Other Requested Relief ("Khandrius Mot.") ¶¶ 64-75, Electronic Case Filing Docket Entry ("DE") #244-1; Drivas Motion for Bill of Particulars ("Drivas Mot.") ¶¶ 64-72, DE #252.*fn1 The Government opposes both motions. See Government's Memorandum of Law in Opposition to Defendants' Pretrial Motions ("Gov. Opp.") at 15-19, DE #262. On June 19, 2012, the Honorable Nina Gershon referred defendants' respective motions for particulars to the undersigned magistrate judge. See Order (June 19, 2012), DE #267.

For the reasons set forth below, the Court denies defendants' motions.

BACKGROUND

On July 16, 2010, federal agents raided Bay Medical Care P.C. ("Bay Medical"), a medical clinic in Brooklyn, and arrested seven individuals, including defendant Drivas. See Motion for Leave to Appeal Bail Conditions at 3-4, DE #158 (detailing procedural history). The arrests stemmed from an alleged scheme by Drivas and others to defraud Medicare by paying kickbacks to patients to agree to undergo unnecessary medical treatments and by billing Medicare for treatments that were never provided, as detailed in a 31-page Complaint and Affidavit in Support of an Application for Arrest Warrants ("Criminal Complaint"). See Criminal Complaint, DE #158-1. Although Drivas was named in the Criminal Complaint, defendant Khandrius was not. See generally id.

Three months later, the Government secured a sealed indictment against 11 individuals, including Drivas and Khandrius, charging them with a series of crimes, including conspiracy to commit health care fraud, arising out of the alleged Medicare scheme. See Indictment (filed Oct. 7, 2010), DE #1. The original indictment was superseded by another indictment in October 2011 (hereinafter, the "Superseding Indictment"). See Superseding Indictment (Oct. 28, 2011), DE #83.

The Superseding Indictment alleges, inter alia, that Drivas was the owner and rendering physician of Bay Medical, as well as the managing employee and/or owner of two related medical clinics, which, along with Bay Medical (collectively, the "Clinics"), were certified to participate in the Medicare program. See Superseding Indictment ¶¶ 8-12. In addition, Khandrius is identified in the Superseding Indictment as "an employee" of the Clinics. See id. ¶ 13. According to the Superseding Indictment, from approximately March 2005 to July 2010, defendants and others "paid cash kickbacks to Medicare beneficiaries to induce those beneficiaries to receive unnecessary physicians' services, physical therapy and diagnostic tests," and "created fraudulent medical records" and "caused the submission of false and fraudulent claims to Medicare" on behalf of the Clinics. Id. ¶ 18. Although the Superseding Indictment charges Drivas and Khandrius with various crimes, it does not attribute any specific overt act to them. See generally Superseding Indictment.

After the filing of the Superseding Indictment, the Government and defendants engaged in discovery. See, e.g., Rule 16 Discovery Letter (Dec. 2, 2011), DE #148 (disclosing Medicare billing data to defendants' attorneys). As part of this discovery, the Government provided defendants with, among other things, patient records seized from Bay Medical pursuant to a search warrant, as well as "a list of Medicare beneficiaries whom were paid cash kickbacks for whom defendant Gustave Drivas was the rendering physician[.]" Rule 16 Discovery Letter (Mar. 2, 2012), DE #201.

On May 18, 2012, Khandrius filed his motion for a bill of particulars, pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure. See Khandrius Mot. ¶¶ 64-75. Two weeks later, Drivas filed a nearly verbatim motion for a bill of particulars. See Drivas Mot. ¶¶ 64-72. Neither motion explicitly specifies what additional information defendants are seeking from the Government. See id.; Khandrius Mot. ¶¶ 64-75. The Government, in opposition, notes the absence of any specific request and argues that defendants "have already been provided numerous sources of information that, viewed together, belie any claim that they are unaware of the nature of the charges against [them]." Gov. Opp. at 18.

Given the lack of any particularized request for further information, this Court issued an order directing Drivas and Khandrius "to identify in writing," by July 9, 2012, what "additional information they claim that they need to understand the nature of the charges against them." Order (July 2, 2012) ("7/2/12 Order"), DE #284. Neither defendant has responded to the Court's Order.

DISCUSSION

"Rule 7(f) of the Federal Rules of Criminal Procedure permits a defendant to seek a bill of particulars in order to identify with sufficient particularity the nature of the charge pending against him, thereby enabling defendant to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense." United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987); accord, United States v. Rigas, 490 F.3d 208, 237 (2d Cir. 2007). The law is clear, however, that a bill of particulars may not be used by the defense as a discovery device or general investigative tool. See United States v. Barret, 824 F.Supp.2d 419, 438 (E.D.N.Y. 2011) (collecting cases).

Ultimately, it is the defendant who bears the burden of showing that the requested information is necessary, not simply that it would be helpful to the defense. See, e.g., United States v. Shteyman, No. 10-CR-347(SJ), 2011 WL 2006291, at *2 (E.D.N.Y. May 23, 2011); United States v. Rivera, No. 09-CR-619 (SJF), 2011 WL 1429125, at *8 (E.D.N.Y. Apr. 13, 2011). Furthermore, where the indictment and/or pretrial discovery provide the defendant with sufficient information as to the nature of the charges, a bill of particulars is unnecessary.

See United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999); United States v. Solomonyan, 451 F.Supp.2d 626, 641-43 (S.D.N.Y. 2006) (complaint and discovery were sufficient to put defendants on notice of charges against them). Whether to allow a bill of particulars is a matter committed to the sound discretion of the district court. See ...


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