United States District Court, E.D. Missouri, Eastern Division
REPORT AND RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE
SHIRLEY PADMORE MENSAH, Magistrate Judge.
In accordance with the Memorandum filed herewith,
IT IS HEREBY RECOMMENDED that Defendant Devon North Golding, M.D.'s motion to strike certain allegations in the superseding indictment or, alternatively, to dismiss the superseding indictment as duplicitous (Doc. No. 47) be DENIED.
The parties are advised that they have fourteen (14) days in which to file written objections to this recommendation and determination. Failure to timely file objections may result in waiver of the right to appeal questions of fact. Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990).
IT IS HEREBY ORDERED that Defendant Devon North Golding, M.D.'s motion to compel Brady and Giglio materials (Doc. No. 48) is DENIED IN PART, AND GRANTED IN PART. Consistent with the Memorandum filed herewith, on or before Friday, October 24, 2014, the United States must produce the reports summarizing Marletta Payne's interviews. The United States may, if it chooses, redact those portions of the reports that do not constitute Brady or Giglio material.
Trial in this case has been set on November 10, 2014 at 9:00 A.M. before the Honorable John A. Ross.
This matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C.§636(b). Defendant Devon Northon Golding, M.D. is charged with three counts of health care fraud (Counts 1-3) and two counts of false statements involving a health care benefit plan (Counts 4-5). The Defendant filed a motion to strike certain allegations in the superseding indictment or, alternatively, to dismiss the superseding indictment as duplicitous (Doc. No. 47). Defendant also filed a motion to compel Brady and Giglio materials (Doc. No. 48). The United States filed responses opposing the motions. (Doc. Nos. 53 & 57). On October 14, 2014, I held a hearing on Defendant's pretrial motions.
A. Motion to Strike Surplusage or to Dismiss the Superseding Indictment as Duplicitous (Doc. No. 47).
Defendant moves to strike paragraphs 35-44 of the Superseding Indictment as surplusage. Defendant contends those paragraphs are akin to propensity evidence that would be inadmissible under Rule 404(b) and should be stricken because they are irrelevant, inflammatory and prejudicial. Defendant contends, in the alternative, that the Superseding Indictment should be dismissed as duplicitous because the paragraphs assert separate and distinct offenses. Defendant argues that allowing the paragraphs to remain in the indictment creates a risk that the jury could convict the Defendant without unanimous agreement with respect to a particular offense.
Rule 7(d) of the Federal Rules of Criminal Procedure allows the Court, on motion of the Defendant, to strike surplusage from the indictment. "A motion to strike surplusage from an indictment... should be granted only where it is clear that the allegations contained therein are not relevant to the charge made or contain inflammatory and prejudicial matter." United States v. Michel-Galaviz, 415 F.3d 946, 948 (8th Cir. 2005)(quoting Dranow v. United States, 307 F.2d 545, 558 (8th Cir. 1962)). To the extent the Government's admissible evidence adduced at trial parallels the factual allegations in the indictment, the allegations cannot be properly characterized as inflammatory or prejudicial. See United States v. Figueroa, 900 F.2d 1211, 1218 (8th Cir. 1990)(holding allegations were neither irrelevant nor inflammatory and prejudicial because they closely paralleled the evidence adduced at trial). Here, the allegations Defendant seeks to strike are neither irrelevant nor inflammatory and prejudicial.
Paragraphs 35-44 of the Superseding Indictment allege that Defendant was investigated by the Missouri Bureau of Narcotics and Dangerous Drugs ("BNDD") in 1987 and 1993 (¶¶ 35-36), the Missouri State Board of Registration for the Healing Arts (the "Board") in 1998 (¶¶ 37-39), and the Missouri Board of Pharmacy ("Pharmacy Board") in 2008 (¶¶ 40-44). The allegations assert that Defendant entered into settlements with each of these regulatory agencies. The paragraphs related to the BNDD investigations and settlements assert that Defendant acknowledged that only a physician with a Missouri Controlled Substance Registration number may prescribe controlled substances. Those paragraphs also assert that Defendant was required to review materials pertaining to the proper distribution and dispensation of controlled substances, among other things.
The paragraphs related to the 1998 Board investigation and settlement assert that Defendant entered into a settlement agreement with the board in which Defendant stipulated that, among things, he permitted a physician assistant to examine, diagnose and treat patients when he was away even though the physician assistant was not authorized under Missouri law to provide such services. Defendant also stipulated in the Settlement Agreement that he permitted ...