U.S. v. Prejean
| Decision Date | 20 April 2006 |
| Docket Number | No. 05-130.,05-130. |
| Parties | UNITED STATES of America v. Cherlyn Armstrong Scherer PREJEAN, et al. |
| Court | U.S. District Court — Eastern District of Louisiana |
Salvatore Panzeca, Panzeca & D'Angelo, Metairie, LA, Michael Seth Fawer, Smith & Fawer, LLP, Covington, LA, Michael Warren Hill, Offices of Michael W. Hill, LLC, Robert G. Harvey, Sr., Law Office of Robert G. Harvey, Sr., APLC, New Orleans, LA, for Cherlyn Armstrong Scherer Prejean.
Jeffrey L. Smith, Jeffrey L. Smith, Attorney at Law, New Orleans, LA, for Dr. Suzette Cullins.
Servando C. Garcia, III, Joseph F. Bishop, Garcia & Bishop, Metairie, LA, for Dr. Joseph F. Guenther.
Julian R. Murray, Jr., Chehardy, Sherman, Ellis, Breslin, Murray, Recile, & Griffith LLP, Metairie, LA, for Dr. Betty Deloach.
Richard W. Westling, Law Offices of Richard W. Westling, LLC, New Orleans, LA, for Scherer Physicians Weight Loss Center, Inc., Scherer's Medical Center, Inc., Scherer's Slidell Medical Center, LLC, Scherer's Gretna Medical Center, LLC, Mia's Pharmacy, LLC, Mia's Pharmacy Slidell, LLC, Bella Mia Holdings, LLC, C.C. Armstrong Co., LLC, J. Ballard Hall, LLC, L. Amedee on Esplanade, LLC, and Ballard Co., LLC.
Tony Gordon Sanders, U.S. Attorney's Office, New Orleans, LA, for United States of America.
Before the Court are some eleven motions of Defendant Cherlyn Armstrong Prejean ("Ms.Prejean") and the corporate Defendants. These motions came on for hearing with oral argument on Friday, March 10, 2006. For the following reasons, Defendants' Joint Motion to Exclude Evidence of Prior Arrest and of Nursing License Suspension (Rec.Doc. No. 195) is GRANTED IN PART and DENIED IN PART. The Court RESERVES RULING until trial upon Defendants' Joint Motion to Require Production of Witnesses (Does. 193 and 248). Defendants' Joint Motion for an Order Limiting the Government's Trial Evidence Based On the Destruction of Records by Hurricane Katrina (Doc. 256) is DENIED, with reservation of Defendants' rights to challenge specific uses of the evidence at trial. Defendants' Joint Motion to Strike Surplusage from the Superseding Indictment (Doc. 247) is DENIED, with the understanding that the parties will develop a summary of the indictment for use at trial. Defendants' Joint Motion to Dismiss Count One as Duplicitous, or Alternatively, to Strike Portions of Count One Based On the Statute of Limitations (Doc. 249) is DENIED. Defendants' Joint Motion for a Pretrial Determination of the Standard for Criminal Liability Under 21 U.S.C. § 841 (Does. 192 and 250) is DENIED. Defendants' Joint Motion for Relief Based On Gonzales v. Oregon (Doc. 251) is DENIED. Defendants' Joint Motion to Dismiss Based On the Inapplicability and/or Vagueness of 21 U.S.C. § 841 (Does. 194 and 246) is DENIED.
This case arises from an alleged conspiracy involving Cherlyn Armstrong Scherer Prejean, the owner of three pain management clinics and two pharmacies in the New Orleans area. Made defendants are Ms. Prejean, the various clinics and pharmacies, and three physicians who were employed at the clinics. The government alleges that the Defendants conspired to distribute and dispense prescription pain medication without medical necessity and outside the scope of professional practice, all in violation of Title 21, United States Code, Sections 841(a)(1) and 846. In a Superseding Indictment filed on January 13, 2006, the government has additionally alleged that the Defendants conspired to launder money, in violation of Title 18, United States Code, Section 1956(h).
On April 12, 2005, pursuant to warrants issued by the DEA, the government seized the Defendants' bank accounts, vehicles, cash, and other assets, and placed notices of lis pendens on eleven parcels of Defendants' property. In June 2005, Defendants asked the Court to release all or a portion of the seized funds, and alleged that they have no assets other than those seized with which to pay the counsel of their choice and their necessary living expenses. In July 2005, this Court held an evidentiary hearing to determine whether some or all of the Defendants' assets were seized without probable cause. In this hearing, the parties presented some of the evidence which presumably will be used at trial.
On August 4, 2005, the Court ordered that $300,000 should be released to Defendants for payment of attorneys' fees. No amount was released for payment of living expenses. The government released these funds to defense counsel to be held in trust for Defendants pursuant to the Court's Order of August 16, 2005.1 On August 17, 2005, Magistrate Judge Louis Moore removed the home incarceration and electronic monitoring conditions of Ms. Prejean's bond in order for Ms. Prejean to work outside of her home. Additionally, on October 21, 2005, the Court granted Defendant Cherlyn Armstrong Prejean's Motion to Modify Bail Conditions, which permitted Ms. Prejean to seek reinstatement of her license from the Louisiana State Board of Nursing.
During Hurricane Katrina, the government stored Defendants' patient files and business records in a building used by the Drug Enforcement Administration ("DEA") in Metairie, Louisiana. This building suffered damage due to the storm, and some of the patient files were damaged as well. On January 19, 2006, upon motion of the Defendants, the Court held an evidentiary hearing to determine the extent of the damage and whether the government acted in bad faith in destroying some of the records.
A jury trial is set in this matter for July 10, 2006. In anticipation of trial, Defendants have submitted eleven pretrial motions, and the government has responded to these motions. The Court shall now address the merits of Defendants' motions.
Defendants have filed three general types of motions—evidentiary motions, motions regarding the superseding indictment, and motions to determine legal standards prior to trial. These motions are as follows:
Evidentiary Motions
1. Defendants' Joint Motion to Exclude Evidence of Prior Arrest and of Nursing License Suspension, filed December 19, 2005 (Doc. 195).
2. Defendants' Joint Motion to Require Production of Witnesses, filed December 19, 2005 (Doc. 193) and February 13, 2006 (Doc. 248).
3. Defendants' Joint Motion for an Order Limiting the Government's Trial Evidence Based On the Destruction of Records by Hurricane Katrina, filed February 27, 2006 (Doc. 256).
4. Defendants' Joint Motion to Strike Surplusage from the Superseding Indictment, filed February 13, 2006 (Doc. 247).
5. Defendants' Joint Motion to Dismiss Count One as Duplicitous, or Alternatively, to Strike Portions of Count One Based On the Statute of Limitations, filed February 13, 2006 (Doc. 249).
6. Defendants' Joint Motion for a Pretrial Determination of the Standard for Criminal Liability Under 21 U.S.C. § 841, filed December 19, 2005 (Doc. 192) and February 13, 2006 (Doc. 250).
7. Defendants' Joint Motion for Relief Based On Gonzales v. Oregon, filed February 13, 2006 (Doc. 251).
8. Defendants' Joint Motion to Dismiss Based On the Inapplicability and/or Vagueness of 21 U.S.C. § 841, filed December 19, 2005 (Doc. 194) and February 13, 2006 (Doc. 246).
1. Defendants' Joint Motion to Exclude Evidence of Prior Arrest and of Nursing License Suspension (Doc. 195)
In this motion, Defendants ask the Court the exclude evidence of Ms. Prejean's September 2000 arrest for illegally transporting scheduled substances without a license, Ms. Prejean's November 19, 2004 Consent Judgment with the Louisiana State Board of Nursing, and the June 2005 suspension of her nursing license. Defendants argue that these incidents are irrelevant and unduly prejudicial in the present case. The government opposes exclusion of this evidence, and argues that the evidence is highly relevant to show Ms. Prejean's allegedly unusual methods in running her pain clinics.
In September 2000, Ms. Prejean was under investigation by a joint task force of state and federal DEA and other law enforcement officials. Ms. Prejean was arrested for illegally transporting controlled substances: she was carrying approximately 1,639 dosage units of prescription drugs in her personal vehicle from her house to the clinics. Also, on that date, the clinics possessed approximately 14,879 dosage units of controlled substances in violation of DEA regulations. Ultimately, the state refused the charges against Ms. Prejean, and nothing came of this arrest. Defendants argue that this conduct is irrelevant to the instant charges.
However, the government alleges that this arrest is highly relevant in that it involves conduct of the Defendant during the period covered by the indictment. The government contends that part of its case against Ms. Prejean is her unorthodox handling and distribution of prescription pain medication. Moreover, the government alleges that this transportation was not an isolated incident, but was part of Ms. Prejean's way of doing business at the time. The government argues that this arrest is evidence of a pattern of conduct by Ms. Prejean to dispense these drugs outside the scope of legitimate medical practice.
Rule 609 of the Federal Rules of Evidence permits introduction of prior convictions under the specific circumstances listed in that rule. By the use of the term "conviction," the rule excludes arrests from admission as evidence at trial. "Typically, evidence of an arrest may not be used for impeachment of a witness; only. evidence of convictions is permitted." United States v. Garza, 754 F.2d 1202, 1206 (5th Cir.1985). See also NLRB v. Jacob E. Decker & Sons, 569 F.2d...
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