United States v. Perry
| Decision Date | 02 July 2014 |
| Docket Number | Criminal No. 2:13cr156. |
| Citation | 30 F.Supp.3d 514 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | UNITED STATES of America, v. W. Wayne PERRY, Jr., and Angela Perry, Defendants. |
Alan Mark Salsbury, Elizabeth M. Yusi, United States Attorney's Office, Norfolk, VA, for United States of America.
This criminal matter is before the Court on a motion filed by defendant W. Wayne Perry, Jr. (“Perry” or “Mr. Perry”) seeking a bill of particulars as to Count Fourteen of the superseding indictment, ECF No. 64, and a motion filed by the United States of America (“Government”) seeking to disqualify Perry's retained counsel based on the alleged need for counsel to testify as a fact witness at trial.1 ECF No. 80. Also pending before the Court is a motion filed by co-defendant Angela Perry, Mr. Perry's wife, seeking to join in the motion for a bill of particulars. ECF No. 91.
This Court previously issued an Order deferring ruling on Mr. Perry's motion seeking a bill of particulars and instructed the parties to confer in an effort to agree on additional disclosures that could be made by the Government to narrow the field of evidence to be admitted at trial without giving Defendant an improper preview of the Government's case. ECF No. 74. As the parties were unable to reach such an agreement, the Court held a hearing on both motions on May 30, 2014. For the reasons set forth in detail below: (1) Angela Perry's written motion for leave to join in Mr. Perry's motion seeking a bill of particulars is GRANTED;2 (2) the joint motion seeking a bill of particulars is GRANTED; and (3) the Government's motion to disqualify defense counsel is DENIED.
Mr. Perry and his wife Angela Perry (collectively with Mr. Perry, “Defendants”) are charged with numerous health care fraud related offenses in an eighteen-count superseding indictment that was filed on February 5, 2014. ECF No. 61. As stated in the superseding indictment, Mr. Perry owned and operated Community Personal Care, Inc. (“CPC”), a home health care business, between January of 2009 and January of 2013. Id. The superseding indictment charges that Defendants conspired to commit health care fraud, committed health care fraud, and made false statements relating to health care matters, among other things. Id. Although the majority of the counts in the superseding indictment set forth particular allegations outlining the charged offense conduct, Count Fourteen broadly alleges that Defendants participated in falsification or alternation of “office records” over a nearly four year period without identifying those office records that were allegedly falsified.
On November 29, 2012, federal agents investigating CPC executed a search warrant at CPC's office. During the search, Mr. Perry was informed by federal agents that the search was part of a Medicaid fraud investigation. Bond Hearing Tr. 23, ECF No. 79. Within several days of such search, Mr. Perry retained the Williams Mullen law firm to provide legal advice. Broughton Aff. ¶ 3, ECF No. 87. Williams Mullen immediately began an internal investigation into CPC's records, and, as characterized by Mr. Broughton of Williams Mullen, such investigation revealed documentary evidence that CPC employees, including but not limited to CPC staffing coordinators Vernice Spain and Sarina Freeman, were stealing from CPC and overbilling Medicaid. Id. ¶ 4.
In December of 2012, Perry's counsel contacted federal agents and prosecuting attorneys to both share defense counsel's discovery of illegal actions undertaken by CPC employees and to request that the Government investigate such matters. Id. ¶¶ 6–8. Defense counsel specifically requested that the Government perform surveillance of an upcoming meeting between Vernice Spain and another CPC employee that purportedly had an illegal purpose. Id. ¶¶ 7–8. After Perry's counsel informed him that the Government declined the defense's invitation to coordinate the investigation of CPC employees and further chose not to perform surveillance of the reported illegal meeting, “Mr. Perry sought advice [of counsel]as to whether he could terminate the employment of Vernice Spain and Sarina Freeman.”Id. ¶¶ 8–9. After consulting with counsel, Perry/CPC terminated Vernice Spain and Sarina Freeman in December of 2012. Id. ¶ 10. However, Mr. Broughton advised Mr. Perry not to take any criminal or civil action against either of the terminated employees until it was clear how the federal government's investigation unfolded. Id. ¶ 11.
Many months later, on October 16, 2013, Mr. Broughton met with both the FBI agent and Assistant United States Attorney in charge of the CPC investigation/prosecution and again informed them that Vernice Spain and Sarina Freeman, and others, were responsible for false Medicaid billings and theft of both public and CPC funds. Id. ¶ 12. However, the Government made clear to Mr. Broughton that it believed that Mr. Perry was the “mastermind” who had orchestrated the false Medicaid billings and that both Mr. Perry and Angela Perry would likely be named as co-defendants in a criminal case. Id. Less than a month later, on November 6, 2013, a criminal indictment was returned by the grand jury against Mr. Perry, Angela Perry, and one other individual who was charged with falsification of records to cover-up the Medicaid fraud charged in the superseding indictment.3 ECF No. 1.
After the return of the original indictment, Williams Mullen again reviewed CPC's records. Broughton Aff. ¶ 13. Such investigation revealed, as characterized by the defense, improper “bonus checks” issued in July of 2012 to Vernice Spain, Sarina Freemen, and Shavonne Freeman, that were separate and apart from their authorized CPC payroll direct deposits. Id. ¶¶ 13–14. According to Mr. Broughton, unlike the previously discovered Medicaid “kickback” scheme involving Vernice Spain and another employee, the unauthorized bonus checks issued in July of 2012 “did not appear to be tied to any false billings to Medicaid, only theft directly from CPC's account.” Id. ¶ 14. After discussing this matter with Mr. Perry, “Williams Mullen, as counsel for CPC and its owner, Mr. Perry, advised Mr. Perry that CPC should file a criminal complaint against Ms. Spain, Sarina Freeman and Shavonne Freeman.” Id. ¶ 15. Mr. Broughton advised Mr. Perry “that Shavonne Freeman should be named in the criminal complaint” because she “had clearly received an unauthorized ‘bonus' check” in July of 2012. Id. In discussing the proposed criminal complaint with Mr. Perry, a complaint that would be filed with local non-federal law enforcement authorities, Mr. Broughton “did not advise Mr. Perry to inform or not inform the [City of Norfolk] detective of the ongoing federal criminal case.” Id. ¶ 16.
In addition to the affidavit Mr. Broughton submitted to this Court in opposition to the Government's pending motion, Mr. Perry submitted his own affidavit confirming each of the above statements of fact. Perry Aff., ECF No. 86. Specifically, Mr. Perry states that he fired Vernice Spain and Sarina Freeman after consulting with counsel, that he did not take any civil or criminal action against these individuals between their December 2012 termination date and October of 2013 based on defense counsel's advice to wait and see how the federal investigation unfolded, that Perry “did not authorize” the bonus checks issued in July of 2012, and that the bonus checks “did not appear to be linked in any way to Medicaid” but instead “appeared to be stolen directly from CPC's account.” Perry Aff. ¶¶ 8–10, 14. Mr. Perry further states in his sworn affidavit that Mr. Broughton communicated with both Perry and James Sears (“Mr. Sears”), CPC's former Chief Financial Officer (“CFO”), about the bonus checks and about filing a criminal complaint, that Mr. Sears and Perry made their report of embezzlement to local authorities at the direction of Mr. Broughton, and that defense counsel “did not advise [Mr. Perry] to inform or not to inform the magistrate or [local] law enforcement of the ongoing federal criminal case.” Id. ¶¶ 18–22.
Further corroborating Mr. Perry's version of events, Mr. Sears also submitted a sworn affidavit to the Court outlining his communications with Perry's counsel and his involvement in filing the criminal complaint in April of 2014. Sears Aff., ECF No. 88. Specifically, Mr. Sears indicates that he provided CPC financial records to Perry's counsel at counsel's request, that typically CPC “bonus” checks were only issued around the holidays, that Perry's counsel communicated with Mr. Sears via email about filing a criminal complaint with local authorities based on the alleged embezzlement by former CPC employees, and that Mr. Sears ultimately made such report of embezzlement as CFO of CPC on April 1, 2014 “at the direction of Gray Broughton.” Id. ¶¶ 8–17.
The Government has not advanced an affidavit offering any facts at this time, but does cite to testimony provided at Mr. Perry's bond revocation hearing conducted on May 5, 2014, by Magistrate Judge Lawrence R. Leonard.4 Bond Hearing Tr., ECF No. 79. The Government also has proffered evidence that it intends to introduce at trial to demonstrate that Mr. Perry was the “mastermind” behind the Medicaid fraud charged in the superseding indictment and that he is accusing former employees Vernice Spain, Sarina Freeman, and others, of illegal conduct to deflect blame from himself.
As will be discussed in greater detail below, the Government fails to advance any facts suggesting the existence of any inconsistencies between defense counsel's version of events leading up to the April 2014 complaint and Mr. Perry's own version of the same events. Moreover, the Government openly acknowledges that it does not dispute the accuracy of Mr. Broughton's statements...
To continue reading
Request your trial
-
United States v. Galecki, 18-4727
...facts with counsel, receiving legal advice based on those facts, and reasonably relying on that advice. See United States v. Perry , 30 F. Supp. 3d 514, 541 (E.D. Va. 2014) (listing the defense’s elements). The district court found that Defendants did not disclose all relevant facts to McGe......