United States v. Fuhai, 3:16-CR-00194

• Decision Date: 13 March 2018
• Docket Number: NO. 3:16-CR-00194,3:16-CR-00194
• Parties: UNITED STATES OF AMERICA, v. FUHAI LI, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

UNITED STATES OF AMERICA, v. FUHAI LI, Defendant.

NO. 3:16-CR-00194

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

March 13, 2018

(JUDGE CAPUTO)

MEMORANDUM

Presently before this Court are five Pretrial Motions filed by Defendant Fuhai Li. First, Defendant's Motion for Further Discovery will be denied because Defendant is not entitled to either the identity of any government informant or grand jury transcripts, and Defendant has been provided with appropriate notice under Federal Rules of Evidence 404, 609, and 807. Second, the Superseding Indictment is sufficiently detailed, and thus Defendant's Motion for a Bill of Particulars will be denied. Third, I will refuse to sever the tax evasion or controlled substance charges from an otherwise joint trial because Defendant has not offered sufficient support for me to conclude that absent severance Defendant would be substantially prejudiced. Fourth, no Count in the Superseding Indictment will be dismissed as untimely. Finally, Defendant's Motion for the Return of Property will be denied because there has been a probable cause finding by a grand jury, which rendered the seized funds "tainted."

I. Background¹

Defendant was a physician licensed by the Commonwealth of Pennsylvania. Defendant held a Pennsylvania medical license, as well as a Drug Enforcement Administration (DEA) registration number, and operated a practice within the Middle Districtof Pennsylvania. Defendant represented himself to be a specialist in neurology and pain management.

On July 19, 2016, a federal grand jury returned a 24-count Indictment charging Defendant with various violations of federal law. Counts 1 through 15 charge violations of 21 U.S.C. § 841(a)(1), for Defendant's distribution and dispensing of controlled substances outside the usual course of professional practice and not for a legitimate medical purpose. Count 16 charges a violation of 21 U.S.C. § 841(a)(1), for Defendant's distribution and dispensing of a controlled substance resulting in serious bodily injury and death of a person. Count 17 charges a violation of 21 U.S.C. § 861(f), for Defendant's distribution and dispensing of a controlled substance to a pregnant individual. Counts 18 and 19 charge violations of 21 U.S.C. § 856(a)(1), for Defendant's maintaining locations at 104 Bennett Avenue, Suite 1B, Milford, Pennsylvania, and 200 3rd Street, Milford Pennsylvania, for the purpose of unlawfully distributing controlled substances. Counts 20 and 21 charge violations of 18 U.S.C. § 1957, for Defendant engaging in monetary transactions in property derived from a specified unlawful activity. Counts 22 through 24 charge violations of 26 U.S.C. § 7201, for Defendant's tax evasion. The Indictment also included a forfeiture allegation seeking forfeiture of various property and United States currency. (See Doc. 1.)

A Superseding Indictment was filed on October 17, 2017. This Indictment expanded the scope of the original Indictment insofar that it charged Defendant with an additional eight (8) counts of unlawful distribution and dispensing of a controlled substance in violation of 21 U.S.C. § 841(a)(1) and required forfeiture of Defendant's medical license. The Superseding Indictment also narrowed the time periods for conduct alleged in the original Indictment.² (See Doc. 47.)

Defendant has filed additional³ pretrial motions. Specifically, Defendant has filed five motions: (1) Motion for Additional Discovery (Doc. 58); (2) Motion for Bill of Particulars (Doc. 59); (3) Motion for Separate Trial (Doc. 60); (4) Motion to Dismiss (Doc. 61); and (5) Motion for Return of Property (Doc. 63). These Motions have been fully briefed and are ripe for disposition.

II. Discussion

A. Defendant Li's Motion for Additional Discovery

(1) Identity of Cooperating Witnesses and Confidential Informants:

Defendant requests "the identity of, the criminal history of, the psychiatric history of, promises made to and other information related to the credibility of cooperating witnesses and confidential informants." (Doc. 58, at 4.) Stated differently, Defendant is requesting the identity of cooperating witnesses and informants, and any related Brady or Giglio material produced. The Government opposes the release of this information.

In Roviaro v. United States, the Supreme Court recognized the "Government's privilege to withhold from disclosure the identity of persons who furnish information ofviolations of law to officers charged with enforcement of the law." 353 U.S. 53, 59 (1957) (citing Scher v. United States, 305 U.S. 251, 254 (1938)). However, the Court explained that this privilege is not without limitations: "where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way." Id. at 60-61. "While there is no fixed rule as to when disclosure is required, the Court in Roviaro stated that once a defendant sets forth a specific need for disclosure the court should balance 'the public interest in protecting the flow of information against the individual's right to prepare his defense.'" United States v. Jiles, 568 F.2d 194, 196 (3d Cir. 1981). Notably, mere speculation that the identity of an informant may provide defendant the opportunity to discover exculpatory evidence is "not sufficient to show the specific need required" to trigger the balancing of interests envisioned by Roviaro. Jiles, 568 F.2d at 197; see also United States v. Bazzano, 712 F.2d 826, 839 (3d Cir. 1983) (en banc); United States v. Kim, 577 F.2d 473, 478 (9th Cir. 1978).

Here, Defendant fails to meet his burden to provide a "specific need" for the disclosure of an informant's identity. Defendant claims that disclosure of the informant's identity would allow him to acquire "information critical to the defense in this matter." (Doc. 58, at 6.) This is a generalized need, which is insufficient to trigger disclosure of an informant's identity. Courts routinely reject defendants' requests when they offer a more specific need for an informant's identity than that offered here. See, e.g., Pickel v. United States, 746 F.2d 176, 181-82 (3d Cir. 1984) (explaining that the defendant lacked a sufficiently specific need for an informant's identity when defendant sought the information to show that certain subpoenas were issued in bad faith); Bazzano, 712 F.2d at 839 (finding that the defendant lacked a sufficiently specific need for an informant's identity when defendant argued the informant's testimony was needed to challenge the probable causedetermination for a subsequent search). Defendant does suggest, in passing, that the identity could be used to cultivate evidence for impeachment purposes. But, again, such a "need" is insufficient. See United States v. Brenneman, 455 F.2d 809, 811 (3d Cir. 1972) (denying defendant's request for the disclosure of an informant's identity premised on the informant's ability to provide evidence that would strengthen cross-examination and support impeachment). Accordingly, I will not require the Government to produce the identity of the two informants or the "anonymous" tipsters⁴ as requested by Defendant.

Notably, the Defendant also requests the immediate disclosure of Brady and Giglio material related to the informants. Considering the Government's un-rebutted averment that it has provided Defendant with all material required to be disclosed under Brady and Giglio, and in light of the Government's representation that it will continue to comply with its disclosure obligations under Brady and Giglio moving forward, Defendant's motion for the immediate disclosure of such information related to the Government's informants is denied.

(2) Notice Under Federal Rules of Evidence 404(b), 609, and 807:

i. Rule 404(b)

Defendant seeks the "early notification of the Government's intent to use other crimes evidence." (Doc. 58, at 8.) I construe such a request as a motion for immediate pretrial notice of the Government's intention to offer evidence under Federal Rule of Evidence 404(b). See United States v. Li, No. 16-194, 2017 WL 590275, at *4 (M.D. Pa. Feb. 14, 2017) (Caputo, J.). In response, the Government contends that immediate production is not proper, but it will "endeavor to provide defense counsel with reasonable pretrial notice of Rule 404(b) evidence." (Doc. 66, at 22.)

Federal Rule of Evidence 404(b) requires the Government to provide, upon request by the accused, "reasonable notice of the general nature of any . . . evidence [of crimes, wrongs, or other acts] that the prosecutor intends to offer at trial." FED. R. EVID. 404(b)(2). Such notice generally must be provided before trial. See id. However, "no specific time limits are stated" in the Rule and "the reasonableness of the timing . . . depends on the facts of each case." United States v. Plaskett, No. 2007-60, 2008 WL 441930, at *2 (D.V.I. Feb. 12, 2008) (finding notice provided one week before trial satisfied the requirement of Rule 404(b)); see United States v. Morris, No. 07-72, 2008 WL 4154846, at *3 (W.D. Pa. Sept. 9, 2008) (concluding that notice of intent to use Rule 404(b) evidence seven to ten days before trial is generally sufficient). Presently, the Government has acknowledged the benefits of providing pretrial disclosure of Rule 404(b) material and has asserted that it will endeavor to provide Defendant with reasonable pretrial notice of its intention to offer any such evidence. (Doc. 66, at 22-23.) At this stage, construing the Government's response as an acknowledgment that it will comply with the reasonable notice requirement of Rule 404(b), the Court will deny Defendant's request for immediate notice of the Government's intention to offer Rule 404(b) evidence without prejudice. See United States v. Salerno, No. 3:10-CR-301, 2011 WL 6141017, at *11 (M.D. Pa. Dec. 9, 2011).

ii. Rule 609

Defendant also seeks immediate...