United States v. Kamal Kabakibou, MD, PC
| Decision Date | 09 July 2020 |
| Docket Number | CIVIL ACTION FILE NO. 1:19-CV-5340-MHC-JCF |
| Parties | UNITED STATES of America, Petitioner, v. KAMAL KABAKIBOU, MD, PC d/b/a the Center for Pain Management, Respondent. |
| Court | U.S. District Court — Northern District of Georgia |
Anthony Christopher DeCinque, Office of the United States Attorney, Atlanta, GA, for Petitioner.
Amanda R. Clark Palmer, Donald Franklin Samuel, Garland, Samuel & Loeb, P.C., Steven Howard Sadow, Law Office of Steven H. Sadow, P.C., Atlanta, GA, for Respondent.
This matter is before the Court on the Final Report and Recommendation ("R&R") of the Magistrate Judge [Doc. 13] recommending that Petitioner's Petition to Enforce a Civil Investigative Demand [Doc. 1] be granted. The Order for Service of the R&R [Doc. 14] provided notice that, in accordance with 28 U.S.C. § 636(b)(1), the parties were authorized to file objections within fourteen (14) days of the receipt of that Order. Respondent has timely filed his objections to the R&R ("Resp.’s Objs.") [Doc. 16].
123 In reviewing a Magistrate Judge's R&R, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). United States v. Schultz , 565 F.3d 1353, 1361 (11th Cir. 2009) (quoting Marsden v. Moore , 847 F.2d 1536, 1548 (11th Cir. 1988) ) (internal quotation marks omitted). Absent objection, the district court judge "may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge," 28 U.S.C. § 636(b)(1), and need only satisfy itself that there is no plain error on the face of the record in order to accept the recommendation. See United States v. Slay , 714 F.2d 1093, 1095 (11th Cir. 1983). In accordance with 28 U.S.C. § 636(b)(1) and Rule 72 of the Federal Rules of Civil Procedure, the Court has conducted a de novo review of those portions of the R&R to which Respondent objects and has reviewed the remainder of the R&R for plain error. See Slay , 714 F.2d at 1095.
The pertinent facts are largely undisputed. The United States Attorney's Office is conducting a civil investigation of Respondent's medical practice under the False Claims Act, 31 U.S.C. § 3729 et seq., based upon allegations that the practice billed the federal government for Medicare reimbursement payments for services that were not medically necessary or were not performed as billed. Civil Investigative Demand ("CID"), attached as Ex. 3 to Decl. of Anthony C. DeCinque ("DeCinque Decl.") [Doc. 1-1 at 11-33]. On September 27, 2019, the United States Attorney issued CID No. 2019-81-NDGA, pursuant to 31 U.S.C. § 3733(a), seeking information and documents relating to Respondent's practice.1 CID; DeCinque Decl. ¶ 10.
A search warrant was executed at Respondent's practice nine days prior to the issuance of the CID. DeCinque Decl. ¶ 15 & Ex. 5 [Doc. 1-1 at 38-41]. Respondent's counsel responded by stating that Respondent would not comply with the CID without a court order requiring him to do so, but offered as a compromise that Respondent would respond to the CID if the United States Attorney's Office agreed not to share the responses to the CID with any individuals who are handling the criminal investigation. DeCinque Decl., Ex. 5 [Doc. 1-1 at 38-41]. The offer was declined, and the Petition to Enforce the CID was filed on October 18, 2019.
The Department of Justice is authorized to investigate violations of the False Claims Act and to issue CIDs to obtain answers to interrogatories and the production of documentary material. 31 U.S.C. §§ 3730(a) & 3733(a). The Act provides a means for enforcing the CID:
Whenever any person fails to comply with any civil investigative demand issued under subsection (a), or whenever satisfactory copying or reproduction of any material requested in such demand cannot be done and such person refuses to surrender such material, the Attorney General may file, in the district court of the United States for any judicial district in which such person resides, is found, or transacts business, and serve upon such person a petition for an order of such court for the enforcement of the civil investigative demand.
4"It is well-settled that the role of a district court in a proceeding to enforce an administrative subpoena is sharply limited; inquiry is appropriate only into whether the evidence sought is material and relevant to a lawful purpose of the agency." E.E.O.C. v. Kloster Cruise Ltd. , 939 F.2d 920, 922 (11th Cir. 1991) (citations omitted); see also United States v. Feaster , 376 F.2d 147, 149 (5th Cir. 1967)2 () (quoting Endicott Johnson Corp. v. Perkins , 317 U.S. 501, 509, 63 S.Ct. 339, 87 L.Ed. 424 (1943) ).
5 Respondent acknowledges that there is nothing inherently unlawful in the Government's pursuant of parallel civil and criminal proceedings against the same investigative target. Resp.’s Objs. at 3, 8.
There is no general federal constitutional, statutory, or common law rule barring the simultaneous prosecution of separate civil and criminal actions by different federal agencies against the same defendant involving the same transactions. Parallel civil and criminal proceedings instituted by different federal agencies are not uncommon occurrences because of the overlapping nature of federal civil and penal laws. The simultaneous prosecution of civil and criminal actions is generally unobjectionable because the federal government is entitled to vindicate the different interests promoted by different regulatory provisions even though it attempts to vindicate several interests simultaneously in different forums.
F.D.I.C. v. Maxxam, Inc. , 523 F.3d 566, 592 (5th Cir. 2008). Indeed, in United States v. Kordel , 397 U.S. 1, 90 S.Ct. 763, 25 L.Ed.2d 1 (1970), the United States Supreme Court approved the use of parallel civil and criminal investigations and prosecutions as necessary to protect the public interest, and noted, "It would stultify enforcement of federal law to require a governmental agency ... invariably to choose either to forgo recommendation of a criminal prosecution once it seeks civil relief, or to defer civil proceedings pending the ultimate outcome of a criminal trial." Id. at 11, 90 S.Ct. 763 (footnote omitted).
Although Respondent is certainly aware of a parallel criminal investigation, he contends that the United States Attorney's "refusal to reveal the nature of the criminal case, or the affidavit that supported the search warrant, deprives the Practice of the ability to intelligently decide how to respond to discovery, or who should respond, particularly to interrogatories." Resp.’s Objs. at 11. Respondent also speculates, without any evidence thereof, that the United States Attorney's Office is using the CID to obtain records for the criminal investigation that it could not obtain by use of the search warrant.3 Id. at 14.
6 The government may act in bad faith if it brings a civil action solely for the purpose of obtaining evidence in a criminal prosecution or has failed to timely advise the defendant in its civil proceeding that it contemplates criminal prosecution. However, aside from Respondent's bald assertion, there is no evidence before the Court that the Government initiated a CID solely to collect evidence for a criminal case. See, e.g. , Kordel , 397 U.S. at 6, 90 S.Ct. 763 ().
Respondent has cited no authority to support his proposition that the Government should reveal the nature of the criminal case or produce the affidavit supporting the search warrant as a condition of Respondent's compliance with the CID. The two cases he relies upon are inapposite. In United States v. Scrushy , 366 F. Supp. 2d 1134 (N.D. Ala. 2005), the government gave the Security and Exchange Commission ("SEC") "advice or ‘preferences’ regarding the content of [an SEC] deposition and its location" in an attempt to gather evidence for its criminal investigation, of which the deponent unknowingly was a target. Id. at 1137. The court excluded the deposition testimony as evidence of the defendant's alleged perjury because the government "manipulated the simultaneous [criminal and civil] investigations for its own purposes" in order to procure it. Id. at 1140. The court stated that the "determining principle" for deciding whether the defendant's deposition testimony should be suppressed as a violation of due process is "the prosecution may use evidence acquired in a civil action in a subsequent criminal proceeding unless the defendant demonstrates that such use would violate his constitutional rights or depart from the proper administration of justice." Id. at 1138 (citation and emphasis omitted). Respondent has failed to raise such an inference in this case. In fact, unlike the defendants in Scrushy who were misled into believing there was no criminal investigation against them, Respondent is not "in the dark" about being a target of a criminal investigation, having been served with a search warrant prior to the issuance of the CID.
7 In United States v. Tweel , 550 F.2d 297, 299-300 (5th Cir. 1977),...
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