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United States v. Indivior Inc.

United States District Court, W.D. Virginia, Abingdon Division

December 23, 2019

UNITED STATES OF AMERICA
v.
INDIVIOR INC., ET AL., Defendants.

          Daniel P. Bubar, Albert P. Mayer, Kristin L. Gray, Joseph S. Hall, Garth W. Huston, Janine M. Myatt, and Carol L. Wallack, United States Attorney's Office, for United States

          Thomas J. Bondurant, Jr., and Jennifer S. DeGraw, Gentry Locke, Leigh A Krahenbuhl, James R. Wooley, James P. Loonam, and Peter J. Romatowski, Jones Day, for Defendants.

          OPINION AND ORDER DENYING OBJECTIONS

          James P. Jones, United States District Judge.

         The defendants, Indivior Inc. and Indivior PLC, have filed a Motion for Bill of Particulars and a Motion to Compel the government to provide additional discovery. The magistrate judge denied both motions, and the defendants have objected to her Memorandum Order. As I find that the magistrate judge's findings are neither clearly erroneous nor contrary to law, I will overrule the objections and affirm the Memorandum Order.[1]

         I.

         The defendants are alleged to have deceived health care providers and benefit programs into believing that the prescription medication Suboxone® (buprenorphine and naloxone) sublingual film (“Suboxone Film”) is safer and less susceptible to diversion and abuse than other similar drugs. The Superseding Indictment charges the defendants with: (1) one count of conspiracy to commit mail, wire, and healthcare fraud, all in violation of 18 U.S.C. § 1349; (2) one count of healthcare fraud, in violation of 18 U.S.C. §§ 2 and 1347; (3) four counts of mail fraud, in violation of 18 U.S.C. §§ 2 and 1341; and (4) twenty-two counts of wire fraud, in violation of 18 U.S.C. §§ 2 and 1343.

         In their request for a bill of particulars, the defendants seek a catalogue of information that ranges from “[e]very false or fraudulent statement or representation the government intends to introduce at trial” and “[t]he nature of any agreement or agreements supporting the asserted conspiracy charge” to “[a]ny actions attributable to Indivior PLC.” Defs.' Mot. Bill of Particulars 1-2, ECF No. 136. The defendants assert that such a bill of particulars is necessary to effectively prepare for trial and to avoid unfair surprise.

         In their Motion to Compel, the defendants argue that the government has an obligation to provide relevant and material information in the possession of “all agencies, ” regardless of whether the agency or its subdivision participated in the investigation. Mem. Supp. Mot. Compel 1, ECF No. 118. The defendants note that the government has not produced all such discovery. The defendants further contend that the government should be required to prepare an index of potentially exculpatory information due to the sheer volume of discovery.

         In opposition, the government argues that a bill of particulars is not necessary because the requested information has already been provided in the Superseding Indictment and in discovery. As for the Motion to Compel, the government maintains that existing precedent does not require the expansive discovery sought by the defendants. The government also emphasizes that the federal agencies and agency subdivisions listed in the defendants' motion did not participate in the underlying investigation. The government concludes that it produced the discovery materials in a searchable electronic format to defendants with substantial resources, and it therefore should not be required to identify potentially exculpatory material for the defense.

         In her Memorandum Order, the magistrate judge found that a bill of particulars was not necessary due to the details provided in the Superseding Indictment and the amount of discovery provided to the defendants. The magistrate judge further concluded that the government has no obligation to produce information known to be in the possession of an agency that neither participated in the underlying investigation nor the current prosecution. The magistrate judge noted that Rule 16 of the Federal Rules of Criminal Procedure only requires disclosure of exculpatory evidence or evidence material to the defense that is not publicly available or already known to the defense, rather than information that might be relevant to their defense. Finally, the magistrate judge held that the government is not required to specifically identify exculpatory or impeachment evidence contained within its disclosures under the circumstances of this case.

         II.

         Under Rule 59(a) of the Federal Rules of Criminal Procedure, when a party objects to a nondispositive order of a magistrate judge, I must review the order to determine whether it is contrary to law or clearly erroneous. Fed. R. Crim. P. 59(a). An order is clearly erroneous when “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Minyard Enters., Inc. v. Se. Chem. & Solvent Co., 184 F.3d 373, 380 (4th Cir. 1999).[2] An order is contrary to law “when it fails to apply or misapplies relevant statutes, case law, or rules of procedure.” United States v. Dunlap, 1:12CR00044-004, 2013 WL 30145, at *1 (W.D. Va. Jan. 2, 2013).

         Rule 7(f) of the Federal Rules of Criminal Procedure provides that a “court may direct the government to file a bill of particulars” upon a defendant's motion. A bill of particulars is intended “to fairly apprise the defendant of the charges against [them] so that [they] may adequately prepare a defense and avoid surprise at trial” but must “not . . . be used to provide a detailed disclosure of the government's evidence in advance of trial.” United States v. Automated Med. Labs., Inc., 770 F.2d 399, 405 (4th Cir. 1985). Instead, “[i]t merely amplifies the indictment by providing missing or additional information so that the defendant can effectively prepare for trial.” United States v. Fletcher, 74 F.3d 49, 53 (4th Cir. 1996).

         Discovery in federal criminal cases is governed by federal statute, the Federal Rules of Criminal Procedure, and case law. See, e.g., 18 U.S.C. § 3500; Fed. R. Crim. P. 12, 12.1, 12.2, 12.3, 16, 26.2, and 46(j); Giglio v. United States, 405 U.S. 150 (1972) (holding that the government must disclose potential impeachment information for its witnesses); Brady v. Maryland, 373 U.S. 83 (1963) (holding that the government must disclose potential exculpatory information). Rule 16(a)(1) requires the government to disclose certain evidence to a ...


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