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United States v. Kumar

United States District Court, E.D. North Carolina, Eastern Division

June 18, 2018

UNITED STATES OF AMERICA,
v.
SANJAY KUMAR, Defendant.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE.

         This matter is before the court on defendant's motions to dismiss (DE 116, DE 118) and the government's motion for interlocutory sale (DE 130). The issues raised have been briefed fully and are ripe for ruling. For the reasons that follow, defendant's motions and the government's motion are denied.

         STATEMENT OF THE CASE

         On February 22, 2018, defendant was named in a forty-five count second superseding indictment charging defendant with the following:

• conspiracy to unlawfully proscribe, dispense, and distribute oxycodone, oxymorphone, hydromorphone, and alprazolam in violation of 21 U.S.C. § 846 (count one);
• possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (count two);
• unlawful prescription, dispensation, and distribution of oxycodone in violation of 21 U.S.C. § 841(a)(1) (counts three through twenty-three);
• possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. 924(c)(1)(A)(i) (count twenty-four);
• unlawful prescription, dispensation, and distribution of alprazolam in violation of 21 U.S.C. § 841(a)(1) (counts twenty-five through thirty);
• engaging in monetary transactions in property derived from specified unlawful activity in violation of 18 U.S.C. § 1957 (counts thirty-one through thirty-two);
• laundering of monetary instruments in violation of 18 § U.S.C. 1956(a)(1)(B)(i), (ii) (counts thirty-three through forty-two); and
• attempt to evade and defeat tax in violation of 26 U.S.C. §7201 (counts forty-three through forty-five).

(DE 86).

         On April 8, 2018, defendant filed the instant motion to dismiss “for violation of the speedy trial act, ” arguing that his indictment should be dismissed in full due to 1) pre-indictment delay and 2) post-arrest delay. (DE 116 at 1). On April 9, 2018, defendant filed the instant motion to dismiss “for failure to state a crime, lack of subject matter jurisdiction, due process, and outrageous government conduct, ” arguing that his indictment should be dismissed in part[1] for 3) failure of the government to properly bring a claim against defendant for violations of the Controlled Substances Act (“CSA”), 21 U.S.C. §§ 801 et seq., and 4) outrageous government conduct. (DE 118 at 1).

         Additionally pending and referred to United States Magistrate Judge Robert T. Numbers are the following motions filed by defendant: motion for evidence under Rule 404(b) (DE 97), motion for release of Brady materials (DE 98), motion for disclosure of confidential informants (DE 99), motion for disclosure of officer's rough notes and recordings (DE 100), motion for disclosure of exculpatory evidence (DE 101), motion for disclosure of surveillance (DE 102), motion for discovery (DE 103), motion to compel discovery unproduced (preservation) (DE 104), motion for bill of particulars (DE 113), motion for return of property/pretrial (DE 114), and motion to suppress (DE 120).

         The government filed omnibus response to all pending motions on May 25, 2018. (DE 126). On May 29, 2018, the court granted parties' consent motion to hold in abeyance motions in limine filed by defendant (DE 115, DE 121), providing for a deadline for filing of all motions in limine by September 3, 2018. (DE 127). On June 6, 2018, the government filed the instant motion for interlocutory sale, seeking authorization from the court to conduct an interlocutory sale of defendant's vehicles seized in accordance with Fed. R. Crim. P. 32.2(b)(7) and Supplemental Rule G(7)(b), to which defendant filed opposition on June 12, 2018.

         Arraignment is scheduled to occur during the court's August 14, 2018 term, and trial is scheduled to begin October 1, 2018.

         STATEMENT OF THE FACTS

         The facts as pertinent to the resolution of defendant's instant motions to dismiss, as forecast by the government, may be summarized as follows. For more than ten years, defendant operated a purported pain management clinic in New Bern, North Carolina called “New Bern Medicine and Sports Rehabilitation.” (DE 126 at 5). From approximately 2011 to 2016, defendant prescribed more than one million pills containing Schedule II and Schedule IV controlled substances, and allegedly received more than $1, 000, 000.00 in cash for those pills. (Id.).[2]

A. Initiation of Investigation

         Around 2012 or 2013, New Bern Police Department (“NBPD”) investigators learned from pill users and pill dealers that defendant was someone whom pill seekers could “go to, pay a cash fee, [and] get prescription[s] without [a] proper medical check.” (Id. at 8 (citing transcript of detention hearing (DE 27) at 7)). NBPD investigators also began receiving complaints from pharmacies in the New Bern area; they were concerned about the legitimacy of defendant's practice because of the extremely high volume of Schedule II controlled substances that defendant was prescribing. (Id.).

         In 2013, one of defendant's patients, Amber Sandvig Garris, crossed the center line while driving and crashed. (Id.). Garris's six-year-old daughter, Alanna, died in the wreck, and at the time of the crash, Garris had oxycodone in her system. (Id.).

         Based on the information learned from street-level drug investigations and complaints from local pharmacies, as well as the wreck in which Garris' daughter died, investigators decided to open a multi-agency investigation into defendant's practice. (Id. at 9). The investigation involved the Drug Enforcement Administration (“DEA”), the Internal Revenue Service (“IRS”), the State Bureau of Investigation (“SBI”), the Craven County Sheriff's Office, and NBPD. (Id.). The investigation was complex, including: interviews of multiple pharmacists; interviews of dozens of defendant's patients; interviews of pill users and pill distributors; interviews of various associates of defendant; the installation of a pole camera outside of defendant's office; subpoenas for records; trash pulls; attempted undercover operations; multiple federal search warrants and federal seizure warrants; analyses of financial records; and analyses of prescription records. (Id.).

         B. Interviews of Patients

         Agents interviewed dozens of patients regarding defendant's purported pain management practice. (Id.). At least two well-known drug dealers in the New Bern area stated that an “intermediary” had suggested that they go to defendant. (Id. (citing transcript of detention hearing (DE 27) at 12)). They “were never checked out physically ”; in other words, they never received a medical examination from defendant. (Id. (citing transcript of detention hearing (DE 27) at 12)). They met with defendant, paid him $200 in cash, and received a prescription for oxycodone, which one of those patients then filled and sold on the street. (Id. at 10).

         Other drug-selling “patients” stated that they would go in, make a complaint of some pain, and pay $200 in cash. (Id.). Defendant would give little or no medical examination. (Id.). At first, the patient would receive a prescription for 10-milligram oxycodone pills, and the prescription might later be increased to 15- or 20-milligram pills. (Id.).

         After a few months of “treatment” by defendant, several individuals seeking actual medical care felt that they were becoming addicted to the pills that defendant was prescribing. (Id.). Some raised concerns with defendant about their feelings of addiction, and some even asked for referrals to other doctors. (Id.). Defendant refused to give referrals to other doctors. (Id.). Individuals sometimes asked for non-narcotic pain treatment options. (Id.). Defendant, however, would provide only narcotic pills and wholly unsupervised “physical therapy.” (Id.).[3]

         One “patient”stated that during one “exam, ” defendant asked to see her arms. (Id. at 13). The person stated that at the time, she had very visible “track marks” on her arms as a result of injecting drugs into her veins. (Id.). Defendant looked at the track marks and would have seen them, but defendant did not ask about them nor did he discontinue prescriptions of Schedule II controlled substances to that patient. (Id. at 13-14).

         Another person came in with the goal of obtaining Schedule II pills and made a complaint of back pain, which was not true. (Id. at 14). Defendant asked the patient to obtain an X-Ray of his back. (Id.). The person did obtain the X-Ray; defendant looked at it briefly and said that there was “nothing wrong” with that patient. (Id.). As a result, defendant stated that he could only prescribe Schedule II controlled substances to the person for five or six months, and then the person would have to pause briefly; a month or two later, defendant would be able to re-start the flow of pills to the “patient.” (Id.). The “patient” admitted to investigators that he either sold or abused the pills. (Id.).

         Interviews also established that defendant had a “recruiter” who was working in the community to send patients to him. (Id.). The person would regularly tell other drug users and dealers that defendant was an easy source of supply for pills. (Id.). One “patient” indicated that he gave the recruiter the $200 fee, and the recruiter then gave the “patient” a prescription ...


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