U.S. v. Srivastava

• Decision Date: 06 March 2007
• Docket Number: Criminal No. RWT 05-0482.
• Citation: 476 F.Supp.2d 509
• Parties: UNITED STATES of America, Plaintiff v. Pradeep SRIVASTAVA, Defendant.
• Court: U.S. District Court — District of Maryland

476 F.Supp.2d 509

UNITED STATES of America, Plaintiff v. Pradeep SRIVASTAVA, Defendant.

Criminal No. RWT 05-0482.

United States District Court, D. Maryland, Southern Division.

March 6, 2007.

Stuart A. Berman, Office of the United States Attorney, Greenbelt, MD, for Plaintiff.

Paula M. Junghans, DLA Piper Rudnick Gray Cary U.S. LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

TITUS, District Judge.

On August 4, 2006, this Court issued an opinion and order granting a motion to suppress filed by Defendant, Dr. Pradeep Srivastava ("Srivastava") based on its conclusion that the evidence in question had been obtained in violation of the Fourth Amendment. United States v. Srivastava, 444 F.Supp.2d 385 (D.Md.2006). The Government has filed a Motion for Reconsideration, which Srivastava has opposed. For the reasons stated below, and for the reasons stated in the Court's August 4, 2006 opinion, the Government's Motion will be denied.

BACKGROUND

In light of the August 4, 2006 opinion that details the facts of this case at length, the Court will not repeat the extensive factual background here. However, it is worth noting several salient facts that inform this opinion.

The Defendant in this case is a cardiologist who resides in Potomac, Maryland and who practices medicine through a Subchapter S Corporation, Pradeep Srivastava, M.D., P.C. Special agents from the Department of Health and Human Services, Office of Inspector General ("HHS-OIG"), the Federal Bureau of Investigation and the Office of Personnel Management, Office of Inspector General conducted the initial stages of a health care fraud investigation of Dr. Srivastava. That investigation ultimately led to criminal tax charges against Dr. Srivastava that are now before the Court.

On March 20, 2003, Special Agent ("SA") Jason Marrero of HHS-OIG submitted a single affidavit in support of applications for three search warrants to Magistrate Judge William Connelly. The affidavit in support of the warrants included allegations that Dr. Srivastava billed for services not rendered to patients, billed patients for duplicate services, listed inappropriate codes on patient claims, improperly billed patients for incidental services, and/or altered medical records. Judge Connelly approved all three warrants, two of which applied to Dr. Srivastava's medical offices in Greenbelt and Oxon Hill, and the third of which authorized a search of Dr. Srivastava's residence in Potomac. Each warrant contained identical substantive language that authorized the seizure of a list of enumerated "records including, but not limited to, financial business, patient and other records related to" the Defendant's "business ... which may constitute evidence of violations of Title 18, United States Code, Section 1347."¹

After the searches were completed, SA Marrero forwarded to the United States Attorney's Office a copy of faxes to the New York office of the Bank of India found at Dr. Srivastava's Greenbelt location. The U.S. Attorney's Office subsequently related this information to Supervisory Special Agent ("SSA") Brad Whites of the IRS, who then conveyed the Srivastava documents and information to IRS Special Agent ("SA") Meredith Louden. The HHS agents also faxed SA Louden six pages of documents, which included copies of the Bank of India faxes found by the seizing agents. SA Louden subsequently began an investigation, which ultimately led to a formal investigation regarding possible tax fraud committed by the Defendant.

STANDARD OF REVIEW

The Federal Rules of Criminal Procedure do not expressly provide for Motions to Alter or Amend Judgment. United States v. Greenwood, 974 F.2d 1449, 1468 (5th Cir.1992). However, federal courts to consider the issue have relied upon Rule 59 of the Federal Rules of Civil Procedure as an "apt analogy." Id.See also, U.S. v. Fell, 372 F.Supp.2d 773, 779-80 (D.Vt. 2005), United States v. D'Armond, 80 F.Supp.2d 1157, 1170 (D.Kan.1999).²

Rule 59(e) allows an aggrieved party to file a motion to alter or amend a judgment within ten days of its entry. Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir.1993). As there is no provision in the Federal Rules of Criminal Procedure governing motions for reconsideration, the Court, by analogy, will be guided by the standard established in the Civil Rules. Courts interpreting Rule 59(e) have recognized three grounds for amending an earlier judgment: (1) to accommodate an intervening change in controlling law, (2) to account for new evidence not previously available, or (3) to correct a clear error of law. Zinkand v. Brown, 478 F.3d 634, 636-37, 2007 WL 611972, *2-3 (4th Cir. 2007). "Where the motion [to reconsider] is nothing more than a request that the district court change its mind ... it is not authorized..." United States v. Williams, 674 F.2d 310, 313 (4th Cir.1982); Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va.1983).

ANALYSIS

As the Defendant correctly points out, the Government ignores the standard of review in its Motion and instead alleges that "[D]efendant never discusses the actual text of Attachment A and cites no case to justify the suppression of the Bank of India fax. Srivastava's failure to defend the suppression order demonstrates why the court should reconsider the case." Government's Reply at 2.

Assuming that the Government intended to assert the third basis for reconsideration in its Motion, namely that the Court must correct a clear error of law, the Court has reviewed the merits. The Government raises six main arguments in its Motion for Reconsideration: (1) the Court incorrectly interpreted the warrant, (2) the documents were not seized unlawfully, (3) more documents are "related to" Srivastava's business than the Court concluded because Srivastava operates a Subchapter S Corporation, (4) the evidence obtained in the IRS investigation was lawful, (5) the evidence should not have been suppressed under the independent source and the inevitable discovery doctrines, and (6) specifically, the Bank of India faxes should not have been suppressed. This Court addressed all of these arguments in the August 4, 2006 opinion, and will not revisit the entire opinion here. With respect to the first and third arguments, however, the Government has repackaged some of its analysis which warrants further discussion.

A. The Search Warrant

The Court explained at length its reading of the warrant in the August 4, 2006 opinion. In its Motion for Reconsideration, the Government spends a great deal of time suggesting that the modifying clauses "related to the business" and "may constitute evidence of violations of ... Section 1347" should not be viewed as limits on the types of documents that could be seized from Srivastava's home and offices. The Court finds that reading the warrant so as to give meaning to these two clauses is not a "restrictive reading" as the Government alleges. Government's Motion at 5. Rather, these clauses must be read to limit the scope of the warrant in order to save it from what otherwise would be unconstitutional overbreadth. United States v. Srivastava, 444 F.Supp.2d 385, 393 (D.Md.2006); see also United States v. Debbi, 244 F.Supp.2d 235, 237 (S.D.N.Y. 2003) (finding, on similar facts, that "what here saved the otherwise very broad warrant issued by the Magistrate Judge from overbreadth was its explicit command that the items to be seized be limited to evidence of either obstruction of justice or the commission of health care fraud").

The Government goes on to cite a number of cases to support the proposition that the warrant was not an unconstitutional general warrant without the limiting language. For example, it cites to Andresen v. Maryland, 427 U.S. 463, 480 n. 10, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), and United States v. Wuagneux, 683 F.2d 1343, 1349 (11th Cir.1982) for the proposition that the Government should be given greater flexibility when investigating complex financial crimes that involve a so-called "paper puzzle." But this flexibility relates to the application of the particularity requirement of the warrant. Wuagneux, 683 F.2d at 1349 ("[i]t is universally recognized that the particularity requirement must be applied with a practical margin of flexibility"). It is curious that the Government cites to these cases when this Court ultimately found that the language of the warrant satisfied the particularity requirement and was not overly broad.

It its Motion for Reconsideration, the Government only superficially addresses the fact that the Court's interpretation of the warrant was only one of three key points in the Court's analysis. This Court only determined that suppression was appropriate because of two additional and important factors. First, the quantity of the materials seized is significant; the Government seized multiple boxes of documents from Srivastava's home and office. The Government in fact realized that many of the documents seized were not related to the investigation. It later returned many of the seized documents to Srivastava, although not until tax investigators had had an opportunity to review the contents. Second, the Court found SA Marrero's testimony to be quite elucidating.

The Government tries to couch SA Marrero's testimony as merely one agent's "state of mind," Government's Reply at 1. However, it is clear to the Court that SA Marrero believed the express limitations of the search warrant were meaningless, and certainly not restrictions that would limit his conduct in any way. Srivastava, 444 F.Supp.2d at 399. Indeed, his actions far exceeded the words of the warrants that he secured from Judge Connelly. SA Marrero specifically testified that he did not advise his agents on any limits regarding what they could collect, and thus his testimony is much more than a single agent's state of mind. Id. Marrero's instruction (or lack thereof) resulted in the seizure of many documents that...