United States v. Sachakov, No. 11–CR–120.

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtJACK B. WEINSTEIN
Citation812 F.Supp.2d 198
PartiesUNITED STATES of America, v. Boris SACHAKOV, Defendant.
Docket NumberNo. 11–CR–120.
Decision Date20 September 2011

812 F.Supp.2d 198

UNITED STATES of America,
v.
Boris SACHAKOV, Defendant.

No. 11–CR–120.

United States District Court, E.D. New York.

Sept. 20, 2011.


[812 F.Supp.2d 202]

James Vincent Hayes, U.S. Department of Justice, Brooklyn, NY, Laura D. Mantell, United States Attorney's Office, Brooklyn, NY, for prosecution.

Harlan J. Protass, Ramsey Hinkle, Clayman & Rosenberg LLP, Seth L. Rosenberg, Clayman & Rosenberg, Esqs., Albert Y. Dayan, Law Office of Albert Y. Dayan, Kew Gardens, NY, for defendant.

MEMORANDUM AND ORDER
JACK B. WEINSTEIN, Senior District Judge.
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                ¦I. ¦Introduction ¦203 ¦
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                ¦ ¦ ¦ ¦
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                ¦II. ¦Facts ¦203 ¦
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                ¦III.¦Analysis ¦204 ¦
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 A. Speedy Trial Act 204
                 B. Superseding Indictment Not a Motion to Dismiss the Indictment 205
                 C. Speedy Trial Clock Has Not Run as to All Charges 207
                
 1. Health Care Fraud Charge 207
                 2. Health Care False Statements Charges 208
                
 D. Health Care Fraud Charge Dismissed Without Prejudice 209
                
 1. Seriousness of the Offense 210
                 2. Facts and Circumstances of the Case 210
                 3. Impact of Re-prosecution on the Administration of Justice 211
                 4. Prejudice to the Defendant 211
                
 E. Statutes Are Not Unconstitutionally Vague 211
                 F. Statutes Do Not Violate the Commerce Clause 213
                 G. Defendant Not Entitled to a Bill of Particulars 214
                
IV. Conclusion 215
                

[812 F.Supp.2d 203]

I. Introduction

Defendant Dr. Boris Sachakov is charged with defrauding both private health insurers and Medicare in violation of 18 U.S.C. § 1347 and 18 U.S.C. § 1035. Superseding Indictment, Doc. Entry 37, July 27, 2011 (“Superseding Indictment”). He now moves to dismiss all charges with prejudice because of a Speedy Trial Act violation, 18 U.S.C. § 3161. Mem. of Law in Supp. of Def. Boris Sachakov's Pre–Trial Mot., Doc. Entry 47, Aug. 12, 2011 (“Def. Mem. of Law”). He alleges that the government allowed more than seventy days of unexcluded time to elapse between indictment and trial. Id. Further, he argues that the government's filing of a superseding indictment served as a motion to dismiss by the government, requiring this court to dismiss all of the charges in the superseding indictment with prejudice. Id.

Defendant also contends that Count One of the superseding indictment should be dismissed because the relevant federal statute, 18 U.S.C. § 1347, is unconstitutionally vague and does not contain a reference to interstate commerce. Id. Finally, the defendant demands a bill of particulars. Id.

Because the government inadvertently failed to request an exclusion of speedy trial time—a request that this court would undoubtedly have granted—Count One of the superseding indictment, which charges the defendant with health care fraud in violation 18 U.S.C. § 1347, is dismissed. Since this crime was charged in the original indictment, this count inherited the expired speedy trial clock of that indictment. For the reasons set forth below, dismissal is without prejudice. A new superseding indictment may include this charge.

Plaintiffs other motions are denied. Defendant's request to dismiss Counts Two through Six, which charge the defendant with health care false statements in violation 18 U.S.C. § 1035, is without any basis. His constitutional claims and demand for a bill of particulars have no merit.

II. Facts

Defendant was arrested on September 22, 2010 on a criminal complaint charging him with health care fraud in violation of 18 U.S.C. § 1347. Complaint, Doc. Entry 1, Sept. 21, 2010. At his arraignment, the period from September 22, 2010 through October 22, 2010 was excluded pursuant to the Speedy Trial Act. Doc. Entry 5, Sept. 22, 2010; Doc. Entry 7, Sept. 22, 2010. Prior to the defendant's indictment, three additional exclusions of speedy trial time were granted: from October 22, 2010 to December 22, 2010, Doc. Entry 12, Oct. 21, 2010; from December 22, 2010 to January 5, 2011, Doc. Entry 13, Dec. 21, 2010; and from February 3, 2011 to March 5, 2011, Doc. Entry 16, Feb. 3, 2011. Notably, the continuance granted at the December 21, 2010 hearing was at the request of defense counsel, who stated that additional time was needed to review the government's evidence. Def. Mem. of Law, Ex. 4, Tr. of Criminal Cause for Order of Excludable Delay, Dec. 21, 2010, at 3:4–4:21.

On February 16, 2011, defendant was indicted on five counts of health care fraud in violation of 18 U.S.C. § 1347. Indictment, Doc. Entry 17, Feb. 16, 2011 (“Original Indictment”). Defendant was subsequently arraigned on the indictment on March 2, 2011 and pled not guilty to all counts. Doc. Entry 19, March 2, 2011.

On March 3, 2011, defendant appeared for a pre-trial conference before this court. Doc. Entry 22, Mar. 3, 2011. A trial date was tentatively set within thirty days. Objecting

[812 F.Supp.2d 204]

to such a prompt trial, the defendant instead requested a later trial date in the fall, arguing that additional time was required to prepare for what it characterized as a “complicated, document intensive case.” Gov't Opp. to Def.'s Pre–Trial Mot. (“Gov't Opp.”), Ex. 1, Tr. of Criminal Cause for Status Conference, Mar. 3, 2011, at 3:15–4:9. The government agreed that it would be more appropriate to try the case in the fall. Id. at 5:13–16. When defense counsel asked for an October 2011 trial date, the court responded that “September will give you enough time.” Id. at 5:20–24. A trial date for September 12, 2011 was set. Failing to follow routine practice, neither the government nor the defendant moved to exclude time under the Speedy Trial Act—a motion the court would obviously have granted.

By a June 17, 2011 letter, the defendant moved for a pre-trial conference to discuss, among other things, a trial continuance until November 2011 due to the religious holidays and a scheduling conflict. Def.'s Letter, Doc. Entry 27, June 20, 2011. At the pre-trial conference on June 27, 2011, the defendant reiterated its request for a continuance, adding that counsel needed additional time “to adequately prepare for trial.” Def. Mem. of Law, Ex. 10, Tr. of Pre–Trial Status Conference, at 2:12–19. The government did not oppose this request. Id. at 4:1–2. In its July 13, 2011 letter, the defendant again requested that the trial date be adjourned until November 2011, and the government consented. Defendant's request for a continuance was granted and the trial date was adjourned until October 12, 2011.

On July 27, 2011, a grand jury returned a new, six-count superseding indictment against the defendant. The superseding indictment charged the defendant with one count of the original health care fraud in violation of 18 U.S.C. § 1347, plus five counts of health care false statements in violation of 18 U.S.C. § 1035. See Superseding Indictment. It alleges that the defendant submitted claims for services not rendered, claims that misrepresented the services provided, and claims that falsely billed for a level of service higher than that performed. Id.

On the evening of July 27, 2011, the government contacted defense counsel and informed them that speedy trial time was not excluded at the March 3, 2011 pre-trial conference or at the subsequent conference in June. Gov't Opp. at 6. The government informed the court of this fact at a pre-trial conference the following day. Def. Mem. of Law, Ex. 11, Tr. of Status Conference, at 2:19–3:4.

The defendant was arraigned before a magistrate judge on the superseding indictment on August 8, 2011. Doc. Entry 50, Aug. 8, 2011. That same day, this court held a pre-trial conference, at which defense counsel again requested an adjournment of the trial date until November 2011 due to his conflicting engagements. Tr. of Aug. 8, 2011 Conference at 8:22–9:13. A trial date of November 28, 2011 was set. Id. at 10:7. Speedy trial time from August 8, 2011 through jury selection on November 21, 2011 was explicitly excluded. Id. at 11:2–11.

III. AnalysisA. Speedy Trial Act

The Speedy Trial Act requires that criminal defendants be tried within seventy days of the later of indictment or arraignment. 18 U.S.C. § 3161(c)(1). It requires courts to exclude certain periods of time from the seventy day period, including “[a]ny period of delay resulting from other proceedings concerning the defendant” and “[a]ny period of delay resulting from the absence or unavailability of the

[812 F.Supp.2d 205]

defendant or an essential witness.” 18 U.S.C. § 3161(h)(1)-(2). Courts are permitted to exclude:

Any period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.

18 U.S.C. § 3161(h)(7).

A retroactive finding that a continuance was granted in order to further the ends of justice to create excludable time is not permitted. United States v. Kelly, 45 F.3d 45, 47 (2d Cir.1995). While the Supreme Court has noted that the Speedy Trial Act is ambiguous on precisely when those findings must be “se[t] forth, in the record of the case,” it has noted that “best practice ... is for a district court to put its findings on the record at or near the time when it grants the continuance.” Zedner v. United States, 547 U.S. 489, 507, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). The precedents of this circuit suggest that time may not be excluded relying on the “ends of justice” rationale “unless...

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10 practice notes
  • United States v. Solnin, No. 12–cr–040 ADS.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 23, 2015
    ...in favor of dismissing Counts Four and Seven of the Second Superseding Indictment without prejudice. See United States v. Sachakov, 812 F.Supp.2d 198, 211 (E.D.N.Y.2011) (dismissing indictment for Speedy Trial Act violation without prejudice, in part because “[a]ll the evidence demonstrates......
  • United States v. Pennick, 10-CR-191-A
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • August 2, 2016
    ...be joined" with those counts in the Superseding Indictment are not subject to dismissal. § 3161(h)(5); see United States v. Sachakov, 812 F.Supp.2d 198, 207 (E.D.N.Y. 2011) (discussing United States v. Roman, 822 F.2d 261 (2d Cir.1987)); United States v. Rumble, 111 F.Supp.3d 207, 214 (N.D.......
  • United States v. Wheeler, Criminal No. 11–0151(ESH).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 5, 2012
    ...is not required under § 1347. Thus, each offense requires proof of an element that the other does not. See United States v. Sachakov, 812 F.Supp.2d 198, 209 (E.D.N.Y.2011). While this is a matter of first impression in this Circuit and the Court is not aware of any case that is precisely on......
  • United States v. Rumble, No. 5:09–CR–230.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • July 1, 2015
    ...can even be "reset," subject to certain limitations, when a new indictment is returned against a defendant. United States v. Sachakov, 812 F.Supp.2d 198, 207 (E.D.N.Y.2011) (noting "the Speedy Trial clock begins to run anew with the filing of a new indictment that contains a different charg......
  • Request a trial to view additional results
10 cases
  • United States v. Solnin, No. 12–cr–040 ADS.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 23, 2015
    ...in favor of dismissing Counts Four and Seven of the Second Superseding Indictment without prejudice. See United States v. Sachakov, 812 F.Supp.2d 198, 211 (E.D.N.Y.2011) (dismissing indictment for Speedy Trial Act violation without prejudice, in part because “[a]ll the evidence demonstrates......
  • United States v. Pennick, 10-CR-191-A
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • August 2, 2016
    ...be joined" with those counts in the Superseding Indictment are not subject to dismissal. § 3161(h)(5); see United States v. Sachakov, 812 F.Supp.2d 198, 207 (E.D.N.Y. 2011) (discussing United States v. Roman, 822 F.2d 261 (2d Cir.1987)); United States v. Rumble, 111 F.Supp.3d 207, 214 (N.D.......
  • United States v. Wheeler, Criminal No. 11–0151(ESH).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 5, 2012
    ...is not required under § 1347. Thus, each offense requires proof of an element that the other does not. See United States v. Sachakov, 812 F.Supp.2d 198, 209 (E.D.N.Y.2011). While this is a matter of first impression in this Circuit and the Court is not aware of any case that is precisely on......
  • United States v. Rumble, No. 5:09–CR–230.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • July 1, 2015
    ...can even be "reset," subject to certain limitations, when a new indictment is returned against a defendant. United States v. Sachakov, 812 F.Supp.2d 198, 207 (E.D.N.Y.2011) (noting "the Speedy Trial clock begins to run anew with the filing of a new indictment that contains a different charg......
  • Request a trial to view additional results

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