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United States v. Novak

United States District Court, N.D. Illinois, Eastern Division

August 7, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
EDWARD NOVAK, et al., Defendants.

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge.

Dr. Venkateswara Kuchipudi is one of eleven defendants charged in the superseding indictment in this case. He has moved to dismiss the charges against him pursuant to Federal Rule of Criminal Procedure 48(a) and 48(b). He contends that the government improperly dismissed a criminal complaint against him to gain a tactical advantage and evade the requirements of the Speedy Trial Act and that the government's actions amount to undue and unfair delay. The Court denies Dr. Kuchipudi's motion for the reasons stated below.

Background

On April 15, 2013, the government filed a criminal complaint charging Dr. Kuchipudi and five others with conspiring to pay or receive kickbacks for referring Medicare and Medicaid patients to Sacred Heart Hospital. A warrant was issued for his arrest, and he was arrested on April 16, 2013 and appeared before a magistrate judge that same day. Dr. Kuchipudi was held in custody for three days based on prosecutors' request for detention. On April 19, 2013, Dr. Kuchipudi was released on $4 million bond, secured by about $3.6 million in assets maintained in two investment accounts, and equity in his home.

Dr. Kuchipudi's arrest triggered the time limits in the Speedy Trial Act, specifically 18 U.S.C. ยง 3161(b), which states that "[a]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges." On May 9, 2013, the government requested and obtained a ninety day extension of time to obtain an indictment, citing the need for further investigation of the conduct alleged in the complaint. Neither Dr. Kuchipudi nor any of the others named in the complaint opposed the government's request for an extension. The chief judge granted an extension through August 13, 2013.

On August 7, 2013, the government requested an additional forty-five day extension, again citing the need for further investigation of the charges. The motion indicated that this was the final extension the government would request. The defendants other than Dr. Kuchipudi did not oppose the extension, but Dr. Kuchipudi did. He argued that he had been prejudiced-citing damage to his reputation, damage to his medical practice, and emotional distress-and that he would be prejudiced further by another extension. On August 9, 2013, the acting chief judge granted the extension over Dr. Kuchipudi's objection. That gave the government until September 27, 2013 to obtain an indictment against Dr. Kuchipudi. The acting chief judge noted the government's representation that this was the final extension it would ask and stated that it was likely this point would be highlighted if the government sought a further extension.

Prior to and after the August 9 court hearing, Dr. Kuchipudi's counsel repeatedly requested access to materials in the government's possession that it had relied upon to charge him and also sought production of exculpatory evidence. The government provided a good deal of material-even though its disclosure obligations under Federal Rule of Criminal 16 had not been triggered, as no indictment was on file-but not all of the material that Dr. Kuchipudi sought.

In late August 2013, Dr. Kuchipudi's attorneys asked to meet with supervisory prosecutors to discuss the allegations against him. An initial meeting took place on September 3, 2013, and the prosecutors agreed to produce certain materials that Dr. Kuchipudi's attorneys had requested. They also arranged a meeting on September 13, 2013 to consider a presentation by Dr. Kuchipudi's attorneys. At that meeting, Dr. Kuchipudi's attorneys described facts, many or most of them contained in materials already in the prosecutors' possession, that they contended undermined the allegations against Dr. Kuchipudi. They asked the prosecutors to consider their contentions and reevaluate the charges against Dr. Kuchipudi.

On September 18, 2013, the prosecutors asked for an additional extension of the Speedy Trial Act to consider the presentation by Dr. Kuchipudi's lawyers. Dr. Kuchipudi's attorneys responded the next day, declining the government's request. They repeated their contention that the evidence negated Dr. Kuchipudi's guilt. They also asked the prosecutors to present the claimed exculpatory evidence to the grand jury if they sought an indictment of Dr. Kuchipudi.

On or about September 19, 2013, the government sought a twenty-eight day extension of time to return an indictment against the other five defendants, but not as to Dr. Kuchipudi. That motion was granted on September 24, 2013.

On September 25, 2013, the government moved pursuant to Federal Rule of Criminal Procedure 48(a) to dismiss without prejudice the charge against Dr. Kuchipudi contained in the criminal complaint. The motion did not cite reasons for the dismissal. Dr. Kuchipudi filed a written response. In his written submission, Dr. Kuchipudi did not ask the Court to require the government to give a reason for the dismissal. He agreed to the dismissal but reserved the right to later seek dismissal with prejudice.

At the September 26, 2013 hearing on the government's motion, Dr. Kuchipudi's attorney stated, "obviously we agree with the government's voluntary motion to dismiss, " and he said that he had made the submission regarding the possibility of dismissal with prejudice "solely to preserve our right" on that point. See Gov't Ex. 16 at 3. Counsel did not interpose at the hearing any objection to the government's failure to provide a reason for the dismissal.

The magistrate judge dismissed the complaint as to Dr. Kuchipudi without prejudice, though he left it open for Dr. Kuchipudi to argue for dismissal with prejudice if the government later returned charges against him. Following the dismissal, the collateral that was being held to secure Dr. Kuchipudi's bond was released, and, of course, he was no longer under the restrictions imposed by the release order that the magistrate judge had previously entered.

On October 22, 2013, the government obtained an indictment against other defendants, but not Dr. Kuchipudi. On March 18, 2014, the government obtained a superseding indictment adding Dr. Kuchipudi as a defendant based on charges that were the same or related to the charge that had been made against him in the criminal complaint. Dr. Kuchipudi has moved to dismiss the charges against him on the ground that the government ...


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