United States v. Nasher-Alneam

• Decision Date: 29 July 2019
• Docket Number: CRIMINAL NO. 2:18-00151
• Citation: 399 F.Supp.3d 579
• Court: U.S. District Court — Southern District of West Virginia
• Parties: UNITED STATES of America v. Muhammed Samer NASHER-ALNEAM, M.D.

399 F.Supp.3d 579

UNITED STATES of America

v.Muhammed Samer NASHER-ALNEAM, M.D.

CRIMINAL NO. 2:18-00151

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

Signed July 29, 2019

Alan G. McGonigal, Christopher R. Arthur, C. Haley Bunn, Jennifer Rada Herrald, Lisa G. Johnston, Meredith George Thomas, Steven I. Loew, United States Attorney's Office, Charleston, WV, for United States of America.

Isaac Ralston Forman, Michael B. Hissam, Katherine B. Capito, Hissam Forman Donovan Ritchie, Charleston, WV, for Muhammed Samer Nasher-Alneam, M.D.

MEMORANDUM OPINION

David A. Faber, Senior United States District Judge

On July 22, 2019, the court held a hearing on defendant's motion to suppress. (ECF No. 258). Present at that hearing were the defendant, in person and by counsel, Isaac R. Forman, Michael B. Hissam, and Katherine B. Capito, and Assistant United States Attorneys Alan G. McGonigal, Jennifer Rada Herrald, and Steven I. Loew. On the morning of July 23, 2019, in open court, the court granted defendant's motion insofar as it moved to suppress certain evidence related to Counts Fifteen through Twenty-Four of the Third Superseding Indictment. This Memorandum Opinion sets out more fully the reasons for that ruling.

Factual Background

Defendant Muhammed Samer Nasher-Alneam, M.D. ("Dr. Nasher") is a medical doctor licensed to practice medicine in the State of West Virginia. See ECF No. 223 at ¶ 1 (Third Superseding Indictment). From on or about July 2013 through February 2015, Dr. Nasher owned and operated a medical practice called "Neurology & Pain Center, PLLC," which, during that time, was located at 401 Division Street, Suite 202 in South Charleston, Kanawha County, West Virginia. Id. at ¶¶ 2-3. From about March 2015 through about February 2018, the defendant's medical practice was located at 4501 MacCorkle Avenue SE, Suite A, in Charleston, Kanawha County, West Virginia. See id. at ¶ 3. The defendant leased the office spaces described above and was the only practicing physician at Neurology & Pain Center, PLLC. See id. During the relevant time period, Dr. Nasher had an active Drug Enforcement Administration (DEA) registration number that allowed him to prescribe controlled substances, including Schedule II, III, IV, and V controlled substances. See id. at ¶ 8.

On July 26, 2018, the grand jury returned a 15-count indictment against Dr. Nasher arising out of his activities in connection with Neurology & Pain Center, PLLC. See ECF No. 1. A twenty-two count second superseding indictment was returned on November 21, 2018, charging defendant with illegal drug distributions, in violation of 21 U.S.C. § 841(a)(1) ; illegal drug distributions resulting in death, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) ; maintaining a drug-involved premises, in violation of 21 U.S.C. § 856(a)(1) ; and international money laundering, in violation of 18 U.S.C. § 1956(a)(2)(B)(ii).

Trial on the second superseding indictment began on April 16, 2019. After the jury was unable to reach a verdict on any of the twenty-two counts, a mistrial was declared on May 7, 2019. Defendant invoked his rights under the Speedy Trial Act and the retrial was scheduled for July 22, 2019.

After the declaration of a mistrial, on June 12, 2019, Dr. Nasher was charged in a forty-seven count third superseding indictment charging him with various offenses related to operation of his medical practice. Specifically, defendant was charged with the following:

1) health care fraud, in violation of 18 U.S.C. § 1347 and § 2 (Counts One through Eleven and Fifteen through Twenty-four);

2) health care fraud resulting in death, in violation of 18 U.S.C. § 1347 and § 2 (Counts Twelve through Fourteen);

3) illegal drug distributions, in violation of 21 U.S.C. § 841(a)(1) (Counts Twenty-five through Thirty-eight);

4) illegal drug distributions resulting in death, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Counts Thirty-nine through Forty-one);

5) maintaining a drug-involved premises, in violation of 21 U.S.C. § 856(a)(1) (Counts Forty-two and Forty-three); and

6) international money laundering, in violation of 18 U.S.C. § 1956(a)(2)(B)(ii) (Counts Forty-four through Forty-seven).¹

See ECF No. 223. The government maintains that its decision to seek a third superseding indictment arose out of adverse evidentiary rulings in the prior trial. See ECF Nos. 248 and 215-2. (noting that "its objective in seeking a third superseding indictment would be to address new circumstances occasioned by adverse evidentiary rulings during the trial of this case").² The health care fraud counts, Counts One to Twenty-Four, are all new.

On the evening of July 15, 2019, less than a week before the second trial was scheduled to begin, defendant filed the instant motion to suppress. Because of the looming trial date, the court suggested scheduling a suppression hearing³ for the morning of July 22 and continuing the trial to the next day. However, in order to accommodate certain witness availability issues the government would have if the trial were to be continued to July 23, the court held the suppression hearing the morning of July 22 and proceeded to jury selection that afternoon.

Defendant's motion to suppress was two-pronged. First, defendant argued that the search warrant was overbroad and that the affidavit accompanying the application for the warrant contained several false statements. The court denied defendant's motion insofar as it alleged overbreadth and/or that the legitimacy of the warrant was in question based upon alleged misrepresentations in the affidavit.⁴

Defendant's second argument was that the government could not rely upon the one and only search warrant in this case to conduct searches in furtherance of its fraud investigation. See ECF No. 258 at 4. According to defendant, "the government's subsequent searches – in furtherance of its fraud investigation – violate Rule 41(e)(2)(B)." Id. at 5. The government contends that this argument fails because

the information and evidence reviewed by the United States in formulating the Third Superseding Indictment was already in its possession as a result of the previously issued warrant and search. The health care fraud schemes now charged are directly related to and arise out of the § 841 charges that were the subject of the initial warrant. The evidence the United States seeks to introduce in the second trial of this matter includes information obtained within the scope of SA King's original affidavit and the warrant signed by Magistrate Judge Tinsley on February 21, 2018. The warrant's fourteen-day limitation in no way prevents the United States from analyzing or reviewing the evidence seized outside of that fourteen-day window. The defendant's argument to the contrary is meritless.

ECF No. 263 at 15.

After hearing the evidence at the suppression hearing, reviewing the cases cited by the parties, and conducting its own research, the court granted the motion to suppress as to evidence seized in support of the government's office absence health care fraud theory charged in Counts Fifteen through Twenty-Four. What follows are the court's findings of fact and conclusions of law.

I. The Search Warrant

On February 21, 2018, FBI Special Agent Jennifer L. King applied for a warrant to search Dr. Nasher's medical office at 4501 MacCorkle Avenue SE for evidence of the commission of violations of 21 U.S.C. § 841(a)(1). See ECF No. 258-1. In support of its warrant application, the government relied on the affidavit of Agent King. See id. (hereinafter "King Aff. at ¶__"); see also In the Matter of the Search of Business known as "Neurology & Pain Center, PLLC" located at 4501 Maccorkle Ave SE, Suite A, Charleston, Kanawha County, West Virginia, Case No. 2:18-mj-00021, ECF Nos. 3 and 10. Agent King's affidavit and the application for a search warrant provided that there was probable cause to believe that a search would reveal evidence related to a violation of 21 U.S.C. § 841(a)(1), "distribution of controlled substances not for legitimate medical purposes in the usual course of professional medical practice and beyond the bounds of medical practice." See King Aff. at ¶¶ 2, 39; ECF No. 258-1 at 1. The particular items to be seized were described as follows:

1. Property that constitutes evidence of the commission of a criminal offense, specifically violations of 21 U.S.C. § 841(a)(1) (distribution of controlled substances not for legitimate medical purposes in the usual course of professional medical practice and beyond the bounds of medical practice); and property designed or intended for use or which is or have been used as a means of committing said criminal offense;

2. Patient files and medical charts for any patient who saw Dr. Nasher in 2013, 2014, 2015, 2016, 2017, and/or 2018 (in whatever form, including electronic medical records and audio files); that is, 2013 - 2018 patient files/charts for patients within Dr. Nasher's practice, which files and charts are believed to contain evidence of the distribution of controlled substances, such as oxycodone or hydrocodone, Schedule II controlled substances, not for legitimate medical purposes in the usual course of professional medical practice and beyond the bounds of medical practice; and

3. Documents and other items tending to establish or hide the whereabouts of proceeds and any items constituting proceeds from violations of 21 U.S.C. § 21 U.S.C. § 841(a)(1).

ECF No. 258-1 at 3.

Of the electronic evidence to be seized, Agent King's affidavit further provided:

Based on the foregoing, and consistent with Federal Rule of Criminal Procedure 41(e)(2)(B), the warrant I am applying for would permit seizing, imaging, or otherwise copying storage media that reasonably appear to contain some or all of the evidence described in Attachment B, and would authorize a later review of the media or information consistent with the warrant. The later review may require techniques, including but not limited to

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