U.S.A v. Srivastava
| Decision Date | 18 February 2011 |
| Docket Number | No. 10-4720,No. 10-4142,No. 10-4600,10-4142,10-4600,10-4720 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PRADEEP SRIVASTAVA, Defendant - Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PRADEEP SRIVASTAVA, Defendant - Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PRADEEP SRIVASTAVA, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
UNPUBLISHED
Appeals from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:05-cr-0 04 82-RWT-1)
Before NIEMEYER and KING, Circuit Judges, and Patrick Michael DUFFY, Senior United States District Judge for the District of South Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Kannon Kumar Shanmugam, WILLIAMS & CONNOLLY, LLP, Washington, D.C., for Appellant. Stuart A. Berman, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: Paula M. Junghans, ZUCKERMAN SPAEDER LLP, Washington, D.C.; James A. Bruton, Amy R. Davis, WILLIAMS & CONNOLLY, LLP, Washington, D.C., for Appellant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
This appeal raises the question of whether Pradeep Srivastava ("Srivastava") made the "substantial preliminary showing" under Franks v. Delaware, 438 U.S. 154 (1978), that is required for him to be entitled to an evidentiary hearing challenging the integrity of an affidavit submitted to support the issuance of a search warrant. This appeal also raises the question of whether the district court properly excluded testimony of Srivastava as hearsay.
We hold that Srivastava did not make the "substantial preliminary showing" required by Franks and, therefore, affirm the district court's ruling on the Franks issue. Furthermore, we hold that the district court properly excluded Srivastava's hearsay testimony. Finally, we find that any issues Srivastava raises as to the interpretation and execution of the March 2003 search warrants will not be revisited by this Court as we have already analyzed these issues in United States v. Srivastava, 540 F.3d 277 (4th Cir. 2008)("Srivastava I"), cert. denied, 129 S. Ct. 2826 (2009).
In early 2003, a criminal investigation was initiated by the Department of Health and Human Services (the "DHHS"), the Federal Bureau of Investigation (the "FBI"), and thegovernment's Office of Personnel Management (the "OPM"), into an alleged health care fraud scheme involving Srivastava, a licensed cardiologist practicing with two associates in Maryland. The federal authorities suspected that Srivastava and his associates were involved in the submission of false claims to various health care benefit programs, in violation of 18 U.S.C. § 1347. As a result, the authorities commenced an investigation into Srivastava's billing practices.
On March 20, 2003, Special Agent Jason Marrero ("Marrero" or "Agent Marrero") of the DHHS Office of Inspector General applied to the United States District Court for the District of Maryland for three search warrants for evidence of federal health care fraud. United States Magistrate Judge William Connelly approved the warrants, which covered Srivastava's two medical offices and his residence. In support of its warrant application, the government submitted an affidavit by Agent Marrero that summarized evidence obtained by the Office of Inspector General, the FBI, and the OPM concerning "allegations that Srivastava's medical group... submits false claims to health care benefit programs." The Affidavit asserted that there was probable cause to believe that criminal fraud had been committed by Srivastava's medical group based upon five categories of "[t]he evidence gathered to date [which] shows that Srivastava's medical office has defrauded health carebenefit programs...." The warrants authorized agents to search for "the following records, including, but not limited to, financial, business, patient, insurance, and other records related to the business of Dr. Pradeep Srivastava... which may constitute evidence of violations of [medical fraud]." The warrants proceeded to authorize the seizure of various specific categories of records, including, "financial records, including but not limited to accounting records, tax records, accounts receivable logs and ledgers, banking records, and other records reflecting the income and expenditures of the business."
On March 21, 2003, agents executed the search warrants. In the wake of the searches, the government abandoned its pursuit of any criminal charges against Srivastava for health-care fraud. Without conceding any wrongdoing, however, Srivastava did enter into a civil settlement with the government involving similar allegations. Based on records seized that indicated that Srivastava had conducted financial transactions with the Bank of India, the government suspected that Srivastava had failed to file a report on a foreign bank account. The government then launched a two-year investigation into Srivastava's tax returns, which uncovered evidence that, in tax years 1998 and 1999, Srivastava had omitted certain capital gains from personal stock-trading activity from his tax returns.
On October 12, 2005, the government obtained an indictment from a grand jury in the District of Maryland charging Srivastava with two counts of attempting to evade taxes and one count of making false statements on a tax return.
Before trial, Srivastava moved for an evidentiary hearing pursuant to Franks, 438 U.S. 154, contending that Agent Marrero's affidavit contained several omissions that were intentionally and materially misleading and that had Agent Marrero included the material information on the affidavit, the affidavit would not sufficiently establish probable cause. Srivastava also moved to suppress the tax-related documents seized during the searches on the grounds that they fell outside the scope of the warrants and that, even assuming they fell within the scope of the warrants, they should be suppressed under the "flagrant disregard" doctrine, which mandates blanket suppression when officers act with flagrant disregard for a warrant's terms.
United States District Judge Roger W. Titus held hearings on Srivastava's motion to suppress evidence on March 27, 2006 and June 9, 2006. At the first hearing, the district court denied Srivastava's motion for a hearing under Franks. The district court took evidence at the second hearing.
On August 4, 2006, the district court issued a memorandum opinion and order suppressing evidence. United States v. Srivastava, 444 F. Supp. 2d 385 (D. Md. 2006), reconsideration denied, 476 F. Supp. 2d 509 (D. Md. 2007). The United States appealed pursuant to 18 U.S.C. § 3731. On September 3, 2008, this Court reversed the district court's order, finding no Fourth Amendment violation and no grounds to suppress any of the government's evidence. Srivastava I, 540 F.3d 277.
When the case returned to the district court in 2009, Srivastava moved for reconsideration of the March 2006 order denying his motion for a Franks hearing. The district court denied the motion. A jury convicted Srivastava of all three charged crimes. In a post-trial motion, Srivastava again sought a Franks hearing. The district court denied the motion. The court imposed concurrent sentences of 46 months of imprisonment on counts one and two and 3 6 months on count three; three years supervised release, including a special condition of release requiring payment of $16,110, 160 in restitution to the IRS; and a $300 special assessment. This appeal followed.
We first address the district court's refusal to grant Srivastava a Franks hearing. In Franks, the Supreme Court held that Srivastava may challenge affidavits upon which search warrants are based under the Fourth and Fourteenth Amendments, and that properly challenged warrants may be voided. 438 U.S. 154. To entitle a Srivastava to a Franks hearing, he must make a substantial preliminary showing that a warrant was procured through false statements intentionally or recklessly made, and that such statements were necessary for establishing probable cause. In other words, in regards to an alleged omission, Srivastava has to make a preliminary showing (1) that the affiant omitted facts with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading and (2) that the affidavit if supplemented by the omitted information would not have been sufficient to support a finding of probable cause. Because other pre-trial mechanisms exist to protect innocent citizens, Srivastava's burden in establishing the need for a Franks hearing, based on either false statements or material omissions, is a heavy one. See United States v. Jeffus, 22 F.3d 554, 558 (4th Cir. 1994) (citing Franks, 438 U.S. at 171-72). Srivastava's showing must be more than conclusory and requires a "detailed offer of proof," United States v. Colkey, 899 F.2d 297, 300 (4th Cir. 1990), and "allegations of negligence or innocent mistake are insufficient," Franks, 438 U.S. at 171.
False statements include information intentionally or recklessly omitted; however, "the affirmative inclusion of false information in an affidavit is more likely to present a questionof impermissible official conduct than a failure to include a matter that might be construed as exculpatory." Colkey, 899 F.2d at 301-02. Failure to include a matter Id. Accordingly, merely showing an intentional omission of a fact from a warrant affidavit does not fulfill Franks' requirements. United States v....
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