United States v. Harwin
| Decision Date | 24 February 2021 |
| Docket Number | Case No. 2:20-cr-00115-JLB-MRM |
| Parties | UNITED STATES OF AMERICA, v. WILLIAM N. HARWIN |
| Court | U.S. District Court — Middle District of Florida |
ORDER DENYING DR. HARWIN'S MOTIONS TO DISMISS INDICTMENT (Docs. 29, 30, 51)
Defendant William N. Harwin, a doctor of oncology, was charged by grand jury indictment with one count of conspiracy to restrain trade under section one of the Sherman Act. (Doc. 1); 15 U.S.C. § 1. Dr. Harwin was the president and managing partner of Florida Cancer Specialists & Research Institute, LLC ("FCS"), an oncology practice with locations throughout Florida. According to the indictment, Dr. Harwin knowingly conspired with officers from a competing oncology practice ("Oncology Company A") to allocate the market for oncological services in Southwest Florida (defined as Collier, Lee, and Charlotte counties).
Dr. Harwin has filed three separate motions to dismiss this action and argues that: (1) the indictment fails to state an offense (Doc. 29); the indictment is time-barred by the relevant statute of limitations (Doc. 30); and (3) as applied to this case, section one of the Sherman Act is either void for vagueness or ambiguous enough to trigger the rule of lenity (Doc. 51).
After careful consideration of the parties' well-reasoned arguments and the legal precedent which this Court is bound to apply, all three of Dr. Harwin's motions to dismiss (Docs. 29, 30, 51) are DENIED.
The allegations set forth in the indictment and viewed in the light most favorable to the Government for the purposes of a pre-trial motion to dismiss are as follows: Oncology is a branch of medicine that deals with the diagnosis and treatment of cancer. (Doc. 1 at ¶ 1.) The field has three major areas of specialization: medical oncology, radiation oncology, and surgical oncology. (Id.) For purposes of this case, only the first two specialties are relevant. Medical oncologists treat cancer using chemotherapy and other medications, and radiation oncologists treat it using radiation therapy. (Id. at ¶ 2.) It is not unusual for oncologists of differing specialties to work together as part of a practice group that provides multiple treatment options for cancer patients. (Id. at ¶ 3.)
From 1999 through September 2016, Dr. Harwin was the "President and Managing Partner Physician" at FCS, a privately owned oncology practice group headquartered in Fort Myers, Florida. (Id. at ¶ 6.) FCS allegedly had "approximately 100 locations" throughout Florida and provided both medical oncology treatments and radiation oncology treatments in some of those locations. (Id.) But in Southwest Florida, FCS only provided medical oncology treatments, not radiation oncology treatments. (Id.) According to the indictment, this apparent discrepancy was the result of a conspiracy to restrain trade between Dr. Harwin and officers of "Oncology Company A," another provider of cancer treatment in Florida.
Like FCS, Oncology Company A allegedly had multiple locations in Florida and provided both medical and radiation oncology treatments in some of thoselocations. (Id. at ¶ 8.) Also, like FCS, Oncology Company A provided only one of those services in its Southwest Florida locations—radiation oncology. (Id.) The indictment provides that, for as long as Dr. Harwin was president of FCS, he conspired with various officers of Oncology Company A to divide up the market for oncological services in Southwest Florida—FCS would provide only medical oncology services, and Oncology Company A would provide only radiation oncology services. (Id. at 18(a).) Under the alleged terms of this conspiracy, neither FCS nor Oncology Company A would hire oncologists who specialized in the other's allocated market niche. (Id. at 18(c).) Moreover, neither FCS nor Oncology Company A would provide drugs or treatments that, consistent with the conspiracy, the other was designated to provide. (Id. at 18(e).) And finally, FCS and Oncology Company A allegedly agreed to prevent competition from practice groups that were not in on the deal. (Id. at 18(d).)
The indictment contains various threatening quotes allegedly uttered by Dr. Harwin to officers of Oncology Company A—supposedly as a means of enforcing the conspiracy. (Id. at 18(c), (e)-(f).)
"A party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." Fed. R. Crim. P. 12(b)(1). "Under [Rule 12(b)] an indictment may be dismissed where there is an infirmity of law in the prosecution; a court may not dismiss an indictment, however, on a determination of facts that should have been developed at trial." United States v. Torkington, 812 F.2d 1347, 1354 (11th Cir. 1987); see also United States v. Critzer,951 F.2d 306, 307 (11th Cir. 1992) (per curiam) (). A sufficient indictment: "(1) presents the essential elements of the charged offense, (2) notifies the accused of the charges to be defended against, and (3) enables the accused to rely upon a judgment under the indictment as a bar against double jeopardy for any subsequent prosecution for the same offense." United States v. Dabbs, 134 F.3d 1071, 1079 (11th Cir. 1998). The factual allegations in an indictment are "viewed in the light most favorable to the government." Torkington, 812 F.2d at 1354.
Under section one of the Sherman Act, "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal." 15 U.S.C. § 1. Violators are "guilty of a felony" punishable by a fine or up to ten years' imprisonment. Id. The Supreme Court has explained that a literal application of section one is impossible because "every" contract is, in a sense, a "restraint of trade," and the statute must therefore be limited to "only unreasonable restraints of trade." NCAA v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 98 (1984) (citing, inter alia, Arizona v. Maricopa Cnty Med. Soc'y, 457 U.S. 332, 342-43 (1982)); see also United States v. Joint-Traffic Ass'n, 171 U.S. 505, 566-67 (1898).
In most cases, determining whether a restraint of trade is "unreasonable" requires application of the so-called "rule of reason," which demands "consideration of the facts peculiar to the business in which the restraint is applied, the nature ofthe restraint and its effects, and the history of the restraint and the reasons for its adoption." United States v. Topco Assocs., Inc., 405 U.S. 596, 607 (1972) (citing Bd. of Trade of Chi. v. United States, 246 U.S. 231, 238 (1918)). But some restraints are presumed unreasonable per se because they are "so plainly anticompetitive and so often lack any redeeming virtue." Broad. Music, Inc. v. Columbia Broad. Sys., Inc., 441 U.S. 1, 8 (1979) (internal citations and quotations omitted) [hereinafter, "BMI"].
One type of restraint deemed per se unreasonable by the Supreme Court is "an agreement between competitors at the same level of the market structure to allocate territories in order to minimize competition." Topco Assocs., Inc., 405 U.S. at 608. Such agreements are deemed "horizontal" restraints and presumed illegal "regardless of whether the parties split a market within which both do business or whether they merely reserve one market for one and another for the other." Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49-50 (1990) (per curiam).
Application of the per se rule to market allocation agreements might require some level of factual analysis, albeit not of the same depth as in a rule-of-reason case. See NCAA, 468 U.S. at 100, 104 n.26 (). Before applying the per se rule to a market allocation agreement, courts must—at a minimum—resolve the basic question posed in Topco: are the parties to the agreement "competitors at the samelevel of the market structure?" 405 U.S. at 608; see also NCAA, 468 U.S. at 99 ().
If parties are not competitors on the same market tier, then a market allocation agreement between them is not per se illegal. Cf. Cha-Car, Inc. v. Calder Race Course, Inc., 752 F.2d 609, 614 (11th Cir. 1985)1 (); see also Double D Spotting Serv., Inc. v. Supervalu, Inc., 136 F.3d 554, 558-59 (8th Cir. 1998) .2
Dr. Harwin first argues that the indictment must be dismissed because it rests on two false premises: (1) there is a "general oncology" market in Southwest Florida, and (2) medical oncologists compete with radiation oncologists within this "general oncology" market. (Doc. 29 at 6-8.) To explain why these assumptions are false, Dr. Harwin asks the Court to take judicial notice of "relevant background information" about the operation of the oncology market, which he included in several footnotes to his motion. (Id., nn. 1-5). This background information, according to Dr. Harwin, may be judicially noticed because it is ...
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