U.S.A v. Lazar

Decision Date04 May 2010
Docket NumberNo. 08-5653.,08-5653.
Citation604 F.3d 230
PartiesUNITED STATES of America, Plaintiff-Appellant,v.Rande H. LAZAR, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

COPYRIGHT MATERIAL OMITTED

ARGUED: Stephen C. Parker, Assistant United States Attorney, Memphis, Tennessee, for Appellant. Orin S. Kerr, George Washington University Law School, Washington, D.C., for Appellee. ON BRIEF: Stephen C. Parker, Kevin Whitmore, Assistant United States Attorneys, Memphis, Tennessee, for Appellant. Orin S. Kerr, George Washington University Law School, Washington, D.C., Steven E. Farese, Sr., Farese, Farese & Farese, P.A., Ashland, Mississippi, Marc N. Garber, The Garber Law Firm, P.C., Marietta, Georgia, Daniel A. Clancy, Clancy Law Firm, Jackson, Tennessee, for Appellee.

Before: GRIFFIN and KETHLEDGE, Circuit Judges; CARR, Chief District Judge.*

CARR, D.J., delivered the opinion of the court, in which GRIFFIN, J., joined. KETHLEDGE, J. (p. 242), delivered a separate concurring opinion.

OPINION

JAMES G. CARR, District Judge.

This is an appeal from an order granting the defendant's motion to suppress evidence seized from two medical offices. Following the searches, a grand jury indicted the defendant, Dr. Rande H. Lazar, a pediatric otolaryngologist, on 110 counts of health care fraud. A superceding indictment charges him with devising and executing a scheme to defraud and obtain money from health care benefit programs.

The defendant contended in the District Court and argues in this Court: 1) the affidavit for the warrant did not establish probable cause; 2) the warrant did not meet the particularization requirement of the Fourth Amendment; 3) the government's claim of inevitable discovery has no merit; and 4) suppression is therefore appropriate.

The District Judge, agreeing with the defendant and adopting the Report and Recommendation of a United States Magistrate Judge [the reviewing Magistrate Judge], granted the defendant's motion to suppress, ordering exclusion of all evidence seized in the challenged searches.

For the following reasons, we affirm the decision of the District Court in part, and vacate in part.

Standard of Review

This Court reviews a district court's ruling on a motion to suppress for clear error on factual determinations, and de novo on legal determinations. United States v. Adams, 583 F.3d 457, 463 (6th Cir.2009). “A factual finding will only be clearly erroneous when, although there may be 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.” Id. (internal quotation and citation omitted). This Court reviews the evidence “in the light most likely to support the district court's decision.” Id. (internal quotation and citation omitted). Legal determinations reviewedde novo include determinations regarding the existence, or lack thereof, of probable cause. United States v. Leake, 998 F.2d 1359, 1362 (6th Cir.1993).

Background

A Magistrate Judge [the issuing Magistrate Judge] signed the warrants at issue on October 9, 2002, for searches of offices located at 777 Washington Avenue and 791 Estate Place, Memphis, Tennessee. The applications, affidavits and warrants were duplicates, except with regard to the addresses to be searched. The affiant was Tennessee Bureau of Investigation Special Agent/Criminal Investigator Donald F. Lee. Assistant United States Attorney [AUSA] Kevin Whitmore was with Agent Lee when Agent Lee presented the applications and affidavits to the issuing Magistrate Judge.

When submitted, the warrant applications included-as part of the affidavit-Attachment A, describing the premises to be searched, and Attachment B, captioned “Description of the Items to be Seized.” Attachment B listed the items subject to seizure in eight paragraphs, stating, in summary:

1. “Any and all documents and records ... including but not limited to patient charts, files, medical records ... concerning the treatment of any of the below listed patients, claim forms, billing statements, records of payments received ... for the following patients:”;
2. “Any and all information and data, pertaining to the billing of services....”;
3. “Any and all computer hardware....”;
4. “Any and all computer software....”;
5. “Any computer related documentation....”;
6. “Any computer passwords....”;
7. “If a determination is made during the search, by the Special Agent assigned to the computer aspect of this search, ... that imaging or recreation of the computer hard drives will damage the seized information, you are authorized to seize the computers ....”; and
8. “All other records or property that constitutes evidence of the commission of the offenses outlined in the search warrant”....

In addition to the warrant applications, the supporting affidavits, Attachments A and B, and the warrants themselves, the “packet” submitted for the issuing Magistrate Judge's review included a list of patient names. [5/26/2005 Suppression Hearing Tr. 145] [Hearing Tr.].

According to the reviewing Magistrate Judge's Report and Recommendation advising suppression:

AUSA Whitmore testified [at the suppression hearing] that he was present when the affidavits and applications, attachments A and B, and the warrants were presented to [the issuing Magistrate Judge]. Whitmore told the court [at the suppression hearing] that he created a list of names of specific patients for whom records were to be seized and gave the list to Agent Lee, who in turn presented it to the magistrate judge. Whitmore claimed [at the suppression hearing] that he and [the issuing Magistrate Judge] had a discussion concerning the patient list before the warrants were signed. The substance of this conversation is unknown; however, there was some indication by Whitmore that he discussed with [the issuing Magistrate Judge] the idea of not attaching the patient list to the affidavits and applications and the warrants out of concern that the names of minor children would be made public. In addition, Whitmore testified that at the time that Agent Lee was under oath, the patient list was a part of the search warrant package presented to the magistrate.

[Dist. Ct. Doc. 342, at 6-7].1

The reviewing Magistrate Judge first noted that “there were no patient names listed after the colon in paragraph one of Attachment B,” and that the applications, affidavits, and warrants, which incorporated the affidavits, did not include any patient-specific identifiers. [ Id. at 7].

The reviewing Magistrate Judge's Report and Recommendation, however, made no finding as to which, if any, patient lists came before the issuing Magistrate Judge.2 It instead focused on the absence of any original patient lists at the suppression hearing: 3

During the course of AUSA Whitmore's testimony [at the suppression hearing], it was discovered that there were several patient lists in existence. See Exh. 6a, 6b, 6c, 10, and 15. None of the lists entered into evidence at the hearing were the actual list presented to the magistrate and none of them were identical. In fact, AUSA Whitmore testified that he did not have copy of the original patient list that was presented to the magistrate judge. Whitmore referred to the patient list attached to the government's response to the present motion as a “working copy” and stated the attached copy was not the one presented to the magistrate judge. Nor are there any patient lists in the clerk's files [containing the search warrants].
[ Id. at 7-8] (emphasis added).

The reviewing Magistrate Judge avoided determining which patient list came before the issuing Magistrate Judge because she believed it did not matter: “The fact that the [issuing] magistrate judge may have viewed a patient list before signing the warrants does not save the warrants from its [sic] facial invalidity.” [ Id. at 12].

The reviewing Magistrate Judge also found that the warrants lacked probable cause to believe that patients' medical records would be in the defendant's medical offices.

Reviewing the Report and Recommendation, the District Judge-without allowing argument or further supplementation of the record 4-adopted the reviewing Magistrate Judge's recommendation that the evidence be suppressed. [Dist. Ct. Doc. 506]. The District Judge made no further finding as to any patient list presented to the issuing Magistrate Judge.

Discussion
I. The Search Warrants Incorporated Any Patient List Presented to the Issuing Magistrate Judge

The reviewing Magistrate Judge held that the language of the first paragraph of Attachment B did not suffice to incorporate a patient list into the affidavit and warrants.

That conclusion, however, is incorrect. “Incorporation” of one thing into another need not be by express “reference.” Cf. Northrop Grumman Info. Tech., Inc. v. United States, 535 F.3d 1339, 1346 (Fed.Cir.2008) (no “magic words” needed to incorporate one document into another); Resolution Trust Corp. v. Fed. Sav. and Loan Ins. Corp., 25 F.3d 1493, 1499 (10th Cir.1994) ( “Phrases such as ‘incorporated by reference’ are not talismanic, without which we do not consider additional necessary documents that effectuate the parties' agreement.”).

Here, the first paragraph of Attachment B gave sufficient direction when it referred to “the below listed patients” and “the following patients.” Any patient list presented to the issuing Magistrate Judge thus was effectively incorporated into the search warrants. If the record otherwise shows that the government seized patient files according to the list, if any, presented to the issuing Magistrate Judge, a lack of formal incorporation by reference into the warrants does not justify a finding of facial insufficiency.

II. Suppression of Patient Records Seized Beyond the Scope of Whichever List Came Before the Issuing Magistrate Judge Is Required Under Groh v. Ramirez

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