United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski, Chief United States District Judge
matter comes before the court on the government's Motion
to Dismiss Without Prejudice (the "Motion"), ECF
No. 80, which asks the court to dismiss the Indictment, ECF
No. 3, against defendants Christopher Dean East, Joann
Kathleen Patterson, Alfred Lloyd Robrecht, William Barclay
Allison, Ryan Thomas Greene (collectively, "Individual
Defendants"), and East Mental Health ("EMH,"
and collectively with Individual Defendants,
"Defendants") without prejudice, under Federal Rule
of Criminal Procedure 48(a). Defendants oppose the Motion and
ask the court to dismiss the Indictment with prejudice. See
Def.'s Resp. U.S.'s Br. Supp. Mot. Dismiss
Without Prejudice ("Robrecht Opp."), ECF
No. 90; Def. William Barclay Allison's Resp., ECF No. 91;
Def.'s Resp. U.S.'s Br. Supp. Mot Dismiss Without
Prejudice ("Patterson Opp."), ECF No. 92; Br. Resp.
Gov'ts Mot. Dismiss Without Prejudice & Supp.
Dismissal With Prejudice ("Greene Opp."), ECF No.
93; Mot. Dismiss Pursuant Rule 48(b)(1) & (3) & Opp.
Gov'ts Mot. Dismiss Pursuant Rule 48(a) ("EMH
Opp."), ECF No. 94. For the reasons discussed below, the
court will GRANT the Motion and
DISMISS the Indictment without
the parties disagree over the import of the government's
delay in prosecuting this case, the underlying timeline is
a Roanoke-based mental health care provider. EMH Opp. 2. East
founded EMH, id, and Patterson, Robrecht, Allison, and Greene
were high-level managers of EMH. Br. U.S. Supp. Mot. Dismiss
Without Prejudice ("Mot. Br."), ECF No.
89, at 2. EMH used Allison Small Business Solutions, LLC
("ASBS") as its contract Medicaid biller.
Id. at 11.
to the genesis of the government's investigation, several
EMH employees (the "Whistieblowers") brought a
brought a separate qui tam action. See Complaint,
United States ex rel. Switzer v. E. Mental Health Servs..
LLC. Civ. No. 7:13-cv-00498 (W.D. Va. Oct. 24, 2013),
ECF No. 3. The qui tam suit remains pending.
government's investigation of Defendants began in
December 2013, after the Whistieblowers brought alleged
fraudulent billing practices by EMH to the government's
attention. ECF No. 89, at 11. On January 28, 2015, the
government executed a search warrant at EMH's Roanoke and
Rocky Mount, Virginia locations and at ASBS. Id. The
government collected 400 boxes of physical materials and
imaged myriad digital materials. Id.
after execution of the search warrant, the government and
former counsel for EMH began a series of communications
regarding access to the materials collected in the search.
See February 27, 2015 Letter, ECF 89 Ex. 1, at 1. As part of
that discussion, the government offered to provide EMH with a
digital copy of all of the materials taken in the search, but
only if EMH agreed to share the costs with the government.
Id. at 3. The government estimated that digitization
would cost approximately $175, 000. Id. Apparently,
no cost sharing agreement was reached.
August 12, 2015 and July 21, 2016, the government shipped the
physical boxes to a third-party vendor for digitization. Mot.
Br. at 14. Additionally, the government avers that it spent
2, 606 hours reviewing materials in Relativity, an online
document review service, and 8, 488 investigative hours.
Id. at 15. The government does not detail why this
case required over 11, 000 hours before the charges were
brought before the grand jury.
investigation continued through June 26, 2018, when
Defendants were indicted on health care fraud charges.
Id. at 2. On July 11, 2018, the court entered a
Pretrial Order, ECF No. 52, setting the case for trial
beginning September 4, 2018, in accordance with speedy trial
requirements. On July 20, 2018, Defendants received all grand
jury transcripts, the lead investigating agent's summary
of the case with exhibits, and approximately 140 memoranda of
interview. Mot. Br. 3. On August 14, 2018, the government met
with defense counsel and arranged to provide each Defendant
with access to digital evidence. Id. at 3-4.
August 21, 2018, two weeks before trial, the government filed
a Motion to Designate Case as Complex Case, and Excludable
Delay, and to Continue the Jury Trial, ECF No. 73. Initially,
most, but not all, defendants consented to the designation.
At an August 24, 2018 hearing, counsel for the government
stated that "the government is fully aware that it has
failed to comply with its discovery obligations in this case
as mandated by the Court, and we have failed to comply with
the scheduling order for filing pretrial motions." Aug.
24, 2018 Hrg. Tr. At 4. The government stated that if the
case was not designated as complex and the trial continued,
it would move to dismiss the case without prejudice as it
could not try the case on schedule given that 3.5 million
pages of discovery had not yet been produced. Id. at
5-7. As a result of the government's position, the
defendants asked that the case be dismissed with prejudice.
The court ultimately denied the motion to continue, and
requested that the parties brief the issue of whether the
case should be dismissed with or without prejudice. As a
result, the government filed the instant Motion, which asks
the court to dismiss the Indictment without prejudice under
Rule 48(a). Defendants have each filed oppositions to the
Motion and ask the court to dismiss the Indictment with
prejudice under Rule 48(b).
dismissal of indictments is governed by Federal Rule of
Criminal Procedure 48, which provides:
(a) By the Government. The government may, with leave of
court, dismiss an indictment, information, or complaint. The
government may not dismiss the prosecution during ...