The opinion of the court was delivered by: Judge Blanche M. Manning
Defendant Theresa Phillips faces five counts of defrauding the government out of more than $1 million dollars by billing Medicare for services never provided. She has filed ten pre-trial motions, which the court discusses in turn.
Motion for a Bill of Particulars
Phillips asks the court to order the government to file a bill of particulars because, she contends, the superseding indictment fails to "state the species,-descend to the particulars." (emphasis hers). The court may order a bill of particulars when the defendant needs more information than what is contained in the indictment in order to (1) enable her to prepare a defense; (2) avoid unfair surprise at trial; and (3) preclude a second prosecution for the same offense. United States v. Fassnacht, 332 F.3d 440, 446-47 (7th Cir. 2003); United States v. Caputo, 288 F. Supp. 2d 923, 925 (N. D. Ill. 2003). Additional information is necessary only if the indictment fails to set forth the elements of the charged offense. Fassnacht, 332 F.3d at 447; Caputo, 288 F. Supp. 2d at 925. In determining whether the indictment sufficiently sets forth the elements of the offense, relevant factors include: (1) the complexity of the charged offense; (2) the clarity of the indictment; and (3) the degree of discovery available in the absence of a bill of particulars. Caputo, 288 F. Supp. 2d at 925.
The court has reviewed the superseding indictment and, in its discretion, agrees with the defendant that she is due additional information about the charges she faces. Paragraph 11 of the superseding indictment alleges that during the period 1999 through 2003 she "defrauded Medicare out of more than $1,165,000." But later in paragraph 17 while delineating the individual counts she faces, the indictment alleges only five instances during 2002 in which Phillips allegedly received fraudulently-obtained Medicare funds. The amount allegedly bilked as detailed in paragraph 17 totals only $47,947.87, rather than the $1,165,000 alleged in paragraph 11. Adding to the confusion is a spreadsheet the government produced in response to Phillips' request for a bill of particulars. The government contends that the spreadsheet provides Phillips all she needs to know about the five instances in 2002 during which she fraudulently received Medicare check. However, the check numbers of the five checks listed on the spreadsheet do not match the check numbers listed in paragraph 17, even though they are supposed to be the same checks, and even though the dates of the checks match.
Given that the detailed allegations of paragraph 17 are at odds with the more general allegations of paragraph 11, the court grants Phillips' motion for a bill of particulars [69-1]. The government shall provide the bill by February 21, 2006.
Motion to Strike Surplusage
Phillips has also moved to strike paragraph 11 of the superseding indictment because it is "not relevant," "inflammatory" and "prejudical." Paragraph 11 reads as follows:
It was further part of the scheme that defendant Theresa Phillips knowingly accepted payment from Medicare for psychotherapy services which she knew had not been performed. Through the scheme, defendant Theresa Phillips defrauded Medicare out of more than $1,165,000 from approximately December 3, 1999 to March 17, 2003.
The court disagrees with Phillips that the allegations of paragraph 11 are irrelevant. To the contrary, they allege the very acts the government must prove, Phillips' knowing receipt of Medicare payments for services not provided. They also detail the dates of her alleged scheme and the amount allegedly bilked. Defendants are not entitled to have stricken allegations that are material to the government's case. United States v. Marshal, 985 F.2d 901, 906 (7th Cir. 1993) ("The language of the indictment can hardly be characterized as immaterial since it delineates with great specificity the numerous charges alleged by the government against each defendant.").
In the court's view, paragraph 11 is not surplusage, and therefore Phillips' motion to strike [77-1] is denied.
Motion for Production of Evidence Motion for Production of Favorable Evidence
Phillips has moved for disclosure of all favorable evidence including any exculpatory and impeaching information, and the existence and substance of any promises of immunity, leniency, or preferential treatment. In addition, Phillips has moved for the production of "[a]ll oral and written statements, notes, letters, memoranda or other documents made by any individuals regarding" Phillips. Phillips wants the information thirty days before trial.
In response, the government has acknowledged its continuing obligations under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972) to disclose information that may be exculpatory or impeaching and has committed to producing that evidence, along with evidence described in the Jencks Act, see 18 U.S.C. § 3500, two weeks before trial. Given that the government is not required to produce such information far in advance of trial, the court believes that the government's offer to do so two weeks in advance of trial is reasonable. See ...