United States v. Bararia
| Decision Date | 02 July 2013 |
| Docket Number | Case No. 2:12-cr-236-APG-GWF |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. VINAY BARARIA, Defendants. |
| Court | U.S. District Court — District of Nevada |
This matter is before the Court on Defendant's Motion to Require Disclosure of Material Information (#64), filed on February 22, 2013; the Government's Response to Defendant's Motion (#71), filed on March 11, 2013; Defendant's Reply to the Government's Response (#75), filed on March 18, 2013; Defendant's Notice to the Court (#89), filed on April 9, 2013; the Government's Response to Defendant's Notice to Court (#93), filed on April 15, 2013; and Defendant's Supplement to 04/16/2013 Hearing on Motion to Require Disclosure of Material Information (#99), filed on April 22, 2013. The Court conducted a hearing in this matter on April 16, 2013.
The indictment in this case charges Defendant Vinay Bararia with conspiracy to distribute controlled substances, Oxycodone and Hydrocodone, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 846. Defendant is also charged in Counts Two through Six of the indictment with distribution of Oxycodone or Hydrocodone in violation of 21 U.S.C. §§841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2. Count Seven charges him with possession with intent to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2.
. . . Defendant was originally charged in a criminal complaint filed on March 2, 2012. Complaint (#1). The complaint alleged that on July 19 and 20, 2011 Drug Enforcement Administration ("DEA") Special Agent ("SA") Prochnow, working in an undercover capacity, exchanged text messages with Defendant Bararia to arrange for the purchase of 500 hydrocodone pills. SA Prochnow met with Defendant Bararia on July 20, 2011 in the parking lot of the Centennial Hills Hospital where Defendant was employed as a physician. During that meeting, Defendant Bararia allegedly sold 498 hydrocodone/acetaminophen pills to SA Prochnow. Defendant allegedly informed the agent that his source of supply should have more pills on Monday, which the source of supply would obtain from locations in California. Complaint (#1), ¶ 4. Thereafter SA Prochnow arranged to meet with Defendant Bararia in the parking lot of the Centennial Hills Hospital on July 28, 2011, at which time Defendant allegedly sold 918 oxycodone pills to the agent. ¶¶ 6-8. On August 22, 2011, September 22, 2011, and November 8, 2011, Defendant Bararia allegedly sold 1300, 1120 and 266 oxycodone pills, respectively, to SA Prochnow in the parking lot of the Kopper Keg pub, located near Centennial Hills Hospital. ¶¶ 10-17. SA Prochnow thereafter allegedly arranged to meet with Defendant Bararia in the Kopper Keg pub parking lot on March 1, 2012 to purchase 1800 oxycodone pills. Before this transaction could occur, the police stopped Defendant's vehicle and arrested him for the prior narcotics transactions. The officers also searched Defendant's vehicle pursuant to a search warrant and discovered 1800 oxycodone pills in the cab of Defendant's automobile and additional oxycodone pills in the trunk. ¶¶18-21.
Defendant Bararia was initially released from custody on March 2, 2012, subject to Pretrial Services supervision. On May 2, 2012, the Pretrial Services Officer moved to revoke Defendant's pretrial release on the grounds that he had prescribed controlled substances to his patients after his privileges had been suspended. Petition for Action on Conditions of Pretrial Release (#14, #15). Defendant appeared in court on May 4, 2012 at which time he was detained pending the revocation hearing. Defendant reportedly suffered a medical episode on that date. Defendant was released from custody on May 16, 2012, but his pretrial release was later revoked in October 2012 after he again unlawfully prescribed controlled substances to patients. Minutes of Proceedings (#46), Orderof Detention (#47).
Defendant has provided a "Chronology of Investigation" which outlines his version of the criminal investigation against him and the basis for items sought in his discovery motion. See Supplement (#99), pgs. 2-6. The Government has not responded to Defendant's Supplement and the Court makes no finding as to the Chronology's accuracy.
Defendant alleges that in February 2011, Bryan Semel, who had been arrested in Nebraska, claimed that Dr. Bararia was his supplier, "who will not fake prescriptions." On May 23, 2011, Sari Gray met with DEA agents and provided information on three men who were allegedly distributing controlled substances. Sari Gray claimed that Defendant Bararia was writing fake prescriptions. On June 1, 2011, Sari Gray arranged a "transaction" between Defendant Bararia and SA Prochnow. Sari Gray was in the undercover vehicle and witnessed the transaction. During this transaction, Defendant Bararia pointed to Arsen Manukyn, who was standing by his car, as his source of supply for controlled substances. Some time between June 1 and June 16, 2011, Defendant Bararia and Sari Gray had "an inappropriate encounter." On June 6, 2011, the Government analyzed a "Prescription Monitoring Report" on Defendant Bararia and concluded that he was over-prescribing. A second "transaction" occurred on June 16, 2011. Sari Gray was not in the vehicle at the time of this transaction, but spoke to Defendant Bararia outside the vehicle immediately afterward. The conversation was recorded.
On June 27, 2011, the investigation of Defendant Bararia was approved as a "Priority Target Case." On August 3, 2011, T.J. Labissonaire was arrested in Seattle and claimed that his supplier was "a 'dirty doctor' in Las Vegas named 'Dr. B.'" On September 1, 2011, Government agents debriefed Sari Gray who told the agents that she did not know Defendant Bararia's supplier. Sari Gray was further debriefed by Government agents on September 27, 2011. She admitted that she had been seeing Defendant Bararia without Government supervision and admitted that she owed Defendant Bararia $200 since January 2011. Sari Gray stated that Defendant Bararia told her that someone was writing false prescriptions from his office and that he had set up a secret code with a pharmacy to identify genuine prescriptions.
. . . On September 29, 2011, "Operation Slumdog Billionaire" received OCDTEP approval.1 During October and November 2011, the Government investigated Defendant Bararia's prescribing patterns with Green Valley Drugs. Between November 25 and December 28, 2011, several text messages were exchanged between SA Prochnow, Defendant Bararia and an individual named "Jose," whom Defendant states "is likely Reynaldo Cabrera, a former patient and intimate of Vaughtriva Isaac and Sari Gray," regarding the purchase of cocaine which began with SA Prochnow inquiring about cocaine in July 2011.
Wiretapping began on January 7, 2012. The authorization for the wiretap was based on Task Force Officer (TFO) Melvin's affidavit that Defendant Bararia was part of a "complex" Armenian drug trafficking organization and the wiretap was necessary to investigate and ferret out the source of supply, flow of money, location of storage facilities, and distribution network, as traditional investigation procedures had allegedly failed. The affidavit also heavily relied on information obtained through Sari Gray, and stated that Defendant Bararia was involved in money laundering and potential Medicare fraud, in addition to distributing controlled substances. Defendant asserts that a high number of calls not subject to interception were intercepted and the Government failed to follow proper minimization procedures and violated minimization statutes. Defendant also asserts that the affidavit in support of the wiretap order contained omissions and misrepresentations and failed to show necessity and violated the statute. Defendant states that TFO Melvin's affidavit was used to support reauthorization of the wiretap, but that references to an "Armenian" drug trafficking organization were omitted from the reauthorization affidavit.
The Chronology states that Defendant Bararia was arrested on March 1, 2012 and his house, medical office, car and cellphone were searched. Defendant alleges that Special Agent Steve Smith told Defendant's wife that her unborn son would not see his father until he is an adult. Defendant also alleges that the agents took money from Defendant's daughters' piggy banks, seized the daughters' Ipads, and derided their standard of living. Defendant further asserts that there is a video-recording of the search of Defendant Bararia's Hotmail email account on March 2, 2012which shows the agent repeatedly viewing emails between Defendant Bararia and his bankruptcy attorney which were clearly marked as confidential and privileged information.
The criminal complaint against Defendant Bararia was filed on March 2, 2012. Defendant alleges that within weeks thereafter Vaughtriva Isaac and Sari Gray were arrested but let go and that no other arrests resulted from "Operation Slumdog Billionaire," and that Defendant Bararia is the only Hindu person involved in the "complex" Armenian DTO. The Chronology concludes by stating that Defendant Bararia was denied emergency medical care during a severe cardiac event on May 4, 2012; that the Marshal's Service refused to allow him to go to the hospital; and that Defendant was not evaluated by a physician until two days later.
Defendant's Motion to Require Disclosure of Material Information (#64) identifies sixteen categories of records that Defendant alleges are material to his defense and relevant to the filing of pretrial motions. Motion (#64), pgs. 2-3. The Court recommended that the parties further confer to see if they could resolve some or all of the items in dispute. Defendant notified the Court that the Government had produced minimization memoranda for the electronic and wire interceptions, but the remaining...
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