U.S. v. Richardson

• Decision Date: 30 August 2005
• Docket Number: No. 04-1617.,04-1617.
• Citation: 421 F.3d 17
• Parties: UNITED STATES of America, Appellee, v. Joanne RICHARDSON, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

421 F.3d 17

UNITED STATES of America, Appellee, v. Joanne RICHARDSON, Defendant, Appellant.

No. 04-1617.

United States Court of Appeals, First Circuit.

Heard January 3, 2005.

Decided August 30, 2005.

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Robert M. Andalman, with whom Jeremy D. Margolis, Sonnenschein Nath & Rosenthal LLP, A. John Pappalardo, Evan Georgopoulos, and Greenberg Traurig LLP were on brief, for appellant.

Susan G. Winkler, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, and Michael K. Loucks, Assistant United States Attorney, were on brief, for appellee.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LIPEZ, Circuit Judge.

Defendant-appellant Joanne Richardson appeals her conviction under 18 U.S.C. § 1623 for making false statements during immunized testimony before a grand jury investigating allegations of Medicare/Medicaid fraud. Richardson first contends that the district court erroneously denied her motion to dismiss the indictment because her trial took place after the deadline imposed by the Speedy Trial Act, 18 U.S.C. §§ 1361-74 ("STA"). Next, Richardson asserts that at least one of the nineteen false statements charged against her in a single count of perjury advances a theory of conviction that is contrary to law, requiring that we vacate the jury's general verdict because it may have rested on an illegal ground. Finally, Richardson challenges the court's admission of allegedly irrelevant and unduly prejudicial evidence at trial. We reject all of these claims and affirm Richardson's perjury conviction.

I. BACKGROUND

A. Grand Jury Investigation and Indictment

We set forth the facts "in the light most flattering to the government's theory of the case, consistent with record support." United States v. Sebaggala, 256 F.3d 59, 62 (1st Cir.2001). From about 1997 to 2000, Richardson was employed as a Regional Account Manager for TAP Pharmaceuticals Inc. ("TAP"), which manufactures, among other drugs, Lupron, a prescription drug used in the treatment of prostate cancer. Richardson was responsible for maintaining relationships with institutional and managed care customers, including, in 1997, the Lahey Clinic in Burlington, Massachusetts.

In 1999-2000, the government convened a grand jury to investigate allegations that, in violation of federal statutes, TAP and some of its employees had provided "things of value," including educational grants and free items, (1) as an inducement to certain customers to purchase and prescribe TAP products and/or (2) as a hidden discount to those customers, which allowed TAP to pay reduced rebates to state Medicaid programs based on an artificially inflated invoice or contract price. See 42 U.S.C. § 1320a-7b(b) (prohibiting the offering or paying of and the solicitation or receipt of remuneration "in cash or in kind" in exchange for making certain referrals or for engaging in certain transactions "for which payment may be made in whole or in part under a Federal health care program"); id. § 1396r-8(c)(1)(A), (C) (providing for payment of rebates by drug manufacturers to state Medicaid programs based on difference between "average manufacturer price" and "the lowest price available from the manufacturer during the rebate period").

Richardson testified before the grand jury pursuant to an order of immunity on October 31, 2000 and December 19, 2000. In response to questioning about her discussions with Lahey Clinic representatives and TAP employees in 1997 regarding renewal of Lahey's contract with TAP for the clinic's Lupron purchases, Richardson denied that she had ever offered or discussed offering things of value to Lahey Clinic, in her words, "as a way of reducing [Lupron's] price outside of a contract form."

On June 25, 2002, Richardson was indicted on one count of making false statements before a grand jury, 18 U.S.C. § 1623 (Count One),¹ and one count of obstruction of justice, id. § 1503 (Count Two),² based on her grand jury testimony of December 19, 2000. On October 31, 2002, the grand jury returned a superseding indictment amending Count One, re-alleging Count Two, and adding one count each of perjury and obstruction of justice (Counts Three and Four) based on a statement Richardson had made in a sworn declaration submitted to the court on September 24, 2002 in opposition to the government's motion to disqualify her defense counsel.

As amended, Count One alleged that, contrary to nineteen statements she made before the grand jury during her December 19, 2000 grand jury testimony, Richardson had

discussed with, offered[,] and provided to Lahey Clinic things of value outside the written contract as a way of making Lupron cheaper, . . . to help make up the difference between the price of Lupron and the price of Zoladex, [a competing drug], [and] as an inducement to the Lahey Clinic and some of its employees to . . . renew[] the contract with TAP and. . . to purchase Lupron for patients being treated in the Clinic's facilities;

and that Richardson had "discussed those arrangements with other[] employees at TAP."³ Count One further alleged that "such things of value includ[ed] golf outings, research support, educational grants, free or nominally priced goods, and other items."

B. Pre-Trial through Post-Trial Proceedings

Richardson moved to dismiss all four counts in the superseding indictment on March 7, 2003, arguing with respect to Count One that the perjury charges against her were insupportable as a matter of law because her statements before the grand jury were literally true, the indictment took those statements out of context, and her statements were made in response to the prosecutor's fundamentally ambiguous questions during the grand jury colloquy. Judge Stearns heard argument and took the motion under advisement on May 29, 2003.⁴

On August 11, 2003, one week before Richardson's trial was scheduled to begin, Judge Stearns, who had not yet ruled on Richardson's motion to dismiss the superseding indictment, recused himself. On August 13, 2003, the case was reassigned to Judge Wolf, who immediately recused himself, and then to Judge Lindsay. During the parties' first appearance before Judge Lindsay on September 22, 2003, Richardson requested a trial date, noting that the time period for trial permitted by the STA either had already expired or was due to expire. Judge Lindsay stated that his trial calendar was booked through much of January, with the exception of the week of October 14, 2003. Richardson acknowledged that an October trial date would leave too little time for Judge Lindsay to decide her motion to dismiss the superseding indictment. Judge Lindsay therefore declined to set a trial date.

On October 16, 2003, Judge Lindsay denied Richardson's motion to dismiss the superseding indictment. When the parties appeared before Judge Lindsay again on November 17, 2003, he inquired about the speedy trial status of the case. The government stated that the docket showed no ruling by the court on Richardson's objections to a magistrate judge's order denying her motion to strike material from the government's opposition to her motion to dismiss the superseding indictment. Richardson reminded the court and the government that Judge Lindsay had declared the matter to be moot in his October 16, 2003 decision because he had excluded the material subject to Richardson's motion to strike from his consideration of her motion to dismiss the superseding indictment. As a result, no motions had been pending since late October.

The government then requested a trial date of January 19, 2004 because its chosen trial attorney was already engaged in another trial expected to run through part of December. Richardson indicated her readiness for an immediate trial. Judge Lindsay then stated: "there are two problems, one is that — one of the counsel for the government is not ready because he's engaged elsewhere. And I have two criminal cases preceding this one in December." He concluded: "if we are impinging on [Richardson's speedy trial] rights, . . . then I'm going to have to refer this to another judge who can try it before January 19th," even if a different government attorney would have to try the case. Richardson again requested an immediate trial and asked that the case be reassigned quickly.

The government protested, predicting that "if we end up being [reassigned] to another judge, we'll be even later than January 19th." Judge Lindsay then accepted the government's suggestion that the government submit its calculation of the number of days remaining on the speedy trial clock so that Judge Lindsay could determine whether his earliest available trial date of January 19, 2004 would satisfy the requirements of the STA, or whether the case would instead have to be reassigned to another judge. Accordingly, Judge Lindsay requested that the government "report to my clerk" by noon the next day on the speedy trial status of the case.

The government timely filed its report, captioned a "Motion to Set a Trial Date of January 19 and for Excludable Delay for the Period Between November 17, 2003 and January 19, 2004," in which it calculated that the STA required Richardson's trial to "commence on or before December 18, 2003." The government nevertheless requested that the court schedule trial for January 19, 2004 and exclude the period of time between November 17, 2003 and January 19, 2004 from the speedy trial clock as a continuance in the interest of justice pursuant to 18 U.S.C. § 3161(h)(8)(A).⁵ As grounds for the continuance, the government asserted that: (1) a trial date earlier than January 19, 2004 would "unreasonably deny. . . the Government continuity of counsel" because its chosen trial attorney had been involved since mid-October in another trial that was unlikely to end before December 10, 2003, justifying a continuance for...