United States v. Kesari

• Decision Date: 25 August 2021
• Docket Number: CRIMINAL ACTION NO. 2:19-00241
• Citation: 556 F.Supp.3d 571
• Parties: UNITED STATES of America v. Sriramloo KESARI, M.D.
• Court: U.S. District Court — Southern District of West Virginia

556 F.Supp.3d 571

UNITED STATES of America

v.Sriramloo KESARI, M.D.

CRIMINAL ACTION NO. 2:19-00241

United States District Court, S.D. West Virginia, at Charleston.

Signed August 25, 2021

Andrew B. Barras, Kilby Macfadden, United States Department of Justice, Fort Mitchell, KY, Dermot Lynch, Maryam Adeyola, Department of Justice, Washington, DC, Andrew J. Tessman, United States Attorney's Office, Charleston, WV, for United States of America.

Clayton Thomas Harkins, Nelson Augustus McKown, Raymond Lee Harrell, Jr., Dinsmore & Shohl, Charleston, WV, Joseph William Harper, Pro Hac Vice, Dinsmore & Shohl, Cincinnati, OH, Krysta K. Gumbiner, Pro Hac Vice, Dinsmore & Shohl, Chicago, IL, Michael J. Ferrara, Pro Hac Vice, Dinsmore & Shohl, Columbus, OH, for Sriramloo Kesari.

Isaac Ralston Forman, Michael B. Hissam, Skyler A. Matthews, Hissam Forman Donovan & Ritchie, Charleston, WV, for Kristina Truxhall.

MEMORANDUM OPINION

John T. Copenhaver, Jr., Senior United States District Judge

Defendant Sriramloo Kesari, M.D. was convicted of one count of unlawful distribution of a controlled substance, Suboxone, in violation of 21 U.S.C. § 841(a)(1) during a jury trial on May 27, 2021. See ECF No. 246. Kesari had previously filed a November 12, 2019 motion in limine to exclude evidence related to the illegal search of his office. ECF No. 31. This opinion explains the reasons for denying this motion.

I.

The November 13, 2019 second superseding indictment in this action charged Kesari in Count One with conspiracy to distribute a controlled substance (buprenorphine and Suboxone ) from in or about October 2018, through in or about May 2019, in violation of 21 U.S.C. § 846 ; and in Counts Two through Thirteen with distribution of controlled substances (buprenorphine and Suboxone ) spanning from October 26, 2018, to March 1, 2019 in violation of 21 U.S.C. § 841(a)(1). ECF No. 33. Co-defendant Kristina Truxhall was also charged with the crime alleged in Count One.¹ Id.

On January 9, 2019, the United States filed before the Magistrate Judge an ex parte "application for order authorizing disclosure of substance abuse treatment records and for authorization to solicit protected information." ECF No. 31-1. "[P]ursuant to 42 U.S.C. § 290dd-2(a) and 42 C.F.R. §§ 2.64, 2.66, and 2.67," the United States sought through such application "an order authorizing the government to access substance abuse records pursuant to legal process[ ] and solicit information employing various techniques that may disclose the identities of, and information relating to, substance abuse patients." Id. at 1.

The subject of the investigation was to be Kesari, "a practitioner who practices in Danville, Boone County, within the Southern District of West Virginia." Id. at 2. The application detailed prior "allegations that Dr. Kesari illegally dispensed controlled substances not for legitimate medical purposes in the usual course of a professional medical practice."² Id. On December 26, 2018, DEA Diversion Investigator DeAndra Lee spoke with a confidential informant, who alleged that: Kesari had been in California since an unspecified date in November 2018, and that an associate, whose name is redacted but who is presumably Truxhall, had been conducting appointments with patients in his absence and had been writing prescriptions using a pad that had been pre-signed by the doctor. Id. In a January 3, 2019 follow-up interview, the informant elaborated on these points and indicated that apart from this associate, no other medical personnel had been present in Kesari's office during the informant's visits there since the doctor's departure for California and that no drug tests were conducted during such appointments. Id. at 3.

Lee thereafter made an inquiry with the West Virginia Board of Pharmacy's Controlled Substance Monitoring Program seeking information regarding Kesari's prescription history. Id. at 4. This inquiry revealed "separate prescriptions issued to [redacted individuals] ... within the timeframe that Dr. Kesari allegedly has been in California and not in West Virginia" as well as 217 total prescriptions for controlled substances issued between November 1, 2018, and December 28, 2018. Id. These allegations formed the factual basis for the order sought in the application.

The United States’ application stated that since the meaning of "record" is broad under the relevant defining regulation, 42 C.F.R. § 2.11, it sought "a court order which applies not only to disclosure of patient records pursuant to legal process, but also to the employment of investigative techniques that will solicit and disclose, among other things, substance abuse patients’ identities, addresses, and phone numbers." Id. at 1 n. 1. Such techniques would include "grand jury subpoenas, surveillance, search warrants, or other legal process." Id. at 4. The application clarified, albeit in a footnote as follows:

In addition to the use of grand jury subpoenas and obtaining search warrants, the investigative techniques used may include, but are not limited to, the following: surveillance of Dr. Kesari's office; conducting recorded visits to Dr. Kesari's office using either an undercover officer or a confidential informant; surveillance and interviews of former and current employees and/or patients of Dr. Kesari's; obtaining telephone records, including subscriber information, through subpoenas and pen registers of phones believed to be used by employees and patients of Dr. Kesari; the issuance of subpoenas for testimony by the persons described above; and, review and analysis of claims data submitted by Dr. Kesari, pharmacies, or labs seeking payment for Dr. Kesari's treatment and/or prescriptions.

Id. at 5 n. 2.

The application explained the regulatory requirements for obtaining an order "authorizing disclosure and use of records to investigate or prosecute a part 2 program or the person holding the records" as contemplated by 42 C.F.R. § 2.66 (2017),³ entitled "Procedures and criteria for orders authorizing disclosure and use of records to investigate or prosecute a part 2 program or the person holding the records." ⁴

Id. at 7. As the application recognized, that provision, in turn, directs that "[a]n order under this section must be entered in accordance with, and comply with the requirements of, paragraph (d) and (e) of § 2.64." Id. (quoting 42 C.F.R. § 2.66(c) (2017) ).

Those subsections provide as follows:

(d) Criteria for entry of order. An order under this section may be entered only if the court determines that good cause exists. To make this determination the court must find that:

(1) Other ways of obtaining the information are not available or would not be effective; and

(2) The public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services.

(e) Content of order. An order authorizing a disclosure must:

(1) Limit disclosure to those parts of the patient's record which are essential to fulfill the objective of the order;

(2) Limit disclosure to those persons whose need for information is the basis for the order; and

(3) Include such other measures as are necessary to limit disclosure for the protection of the patient, the physician-patient relationship and the treatment services; for example, sealing from public scrutiny the record of any proceeding for which disclosure of a patient's record has been ordered.

42 C.F.R. § 2.64(d) - (e) (2017).⁵

The United States’ application offered the following to argue that the requirements of 42 C.F.R. §§ 2.64(d) - (e) and 2.66 had been met:

(C) Requirements for Orders

(1) Criteria for Entry of Orders

(a) The records at issue are believed to be housed at Dr. Kesari's office in Hurricane, Putnam County, within the Southern District of West Virginia. To the government's knowledge, these records are not currently available from any other source.

(b) As set forth above, review of patient files and identification of patients is necessary to determine whether controlled substances were illegally dispensed; whether controlled substances were obtained by fraud or forgery; and whether medical insurers were defrauded by having to pay for uncovered or unnecessary treatments, counseling sessions, or prescriptions. The information contained within the patient files is necessary to determine if the offenses under investigation were or were not committed. Similarly, surveillance, phone records, interviews of patients and former employees, and other investigative methods, all of which may involve the acquiring of protected substance abuse records, including patient identities, are the only means by which law enforcement can further this investigation.

(c) The public interest and need for disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services. In particular, the conduct under investigation potentially endangers the health of patients being treated by Dr. Kesari, in that patients are receiving dangerous drugs without necessary physician oversight; physician-patient relationships were allegedly corrupted or non-existent, and/or based on incomplete information and/or fundamentally undermined by interference from illegal prescription writing. The government is not seeking to prosecute the patients and will treat the information acquired with due care. Accordingly, the public interest and need for disclosure substantially outweigh any possible injury to the patient or to any physician-patient relationship. Indeed, the investigation seeks to avert further possible harm to Dr. Kesari's patients and to the public.

(D) Content of Order

(1) The proposed order limits disclosure of the records of Dr. Kesari's patients.

(2) The proposed order limits access to the confidential material to the United States and federal law enforcement personnel involved in the investigation and to such experts as the United States may need to consult to analyze,

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