United States District Court, M.D. Florida, Tampa Division
C. BUCKLEW SENIOR UNITED STATES DISTRICT JUDGE
cause is before the Court on:
Dkt. 141 Transcript of Motion Hearing of Dec. 13, 2018
Dkt. 152 Motion to Suppress
Dkt. 153 Motion to Dismiss
Dkt. 158 Transcript of Motion Hearing of May 8, 2019
Dkt. 161 Response
Dkt. 166 Transcript of Status Conference of Dec. 14, 2018
Dkt. 168 Report and Recommendation
Dkt. 169 Reply
David Brock Lovelace, pig se, made an oral Motion to Suppress
and an oral Motion to Dismiss at the hearing before
Magistrate Judge Thomas G. Wilson on May 8, 2019. (Dkt. 168).
The Government filed a Response to the Motions. (Dkt. 161).
Magistrate Judge Wilson has entered a Report and
Recommendation in which it is recommended that the Motions be
denied. (Dkt. 168).
Lovelace has not filed an Objection to the Report and
Recommendation but has filed a Reply to the Response.' At
the status conference on June 11, 2019, the Court inquired as
to any additional objections to the Report and
Recommendation. Defendant Lovelace did not assert any
objection to the Report and Recommendation.
Motion to Suppress Complaint
Lovelace moved to suppress the Complaint, and/or subsequent
Indictment based on the alleged false statement that "A
subsequent investigation has established probable cause to
believe that Lovelace is engaged in a cash-for-patients
kickback scheme involving clinical laboratory
testing..." (Dkt. 1, par. 18, pp. 7-8; Dkt. 158, p. 10).
Defendant Lovelace cites the definition of remuneration in 42
C.F.R. Sec. 411.351. (Dkt. 158, p. i2). Defendant Lovelace
argues that money was paid for patient information, and the
furnishing of items, devices, or supplies that are used
solely for one or more of the following purposes, for
ordering tests or procedures for the entity furnishing items,
devices, or supplies. (Dkt. 158, p. 13). Defendant Lovelace
argues that there is no probable cause and it is false to say
that it is illegal behavior. (Dkt. 158, p. 13). In summary,
there is a false statement in the Complaint that is necessary
for the presence of probable cause. (Dkt. 158, p. 14).
Lovelace asserts that the Complaint allowed the Government to
obtain an indictment after the fact. (Dkt. 158, p. 15).
Defendant Lovelace admits that there is no statement or
physical evidence that Defendant Lovelace is seeking to
suppress. The Motion to Suppress is directed only to the
Complaint (Dkt. 1) and/or the Indictment (Dkt. 24). (Dkt.
158, p. 15).
Motion to Dismiss Indictment With Prejudice
Lovelace moved to dismiss the Indictment with prejudice for
violation of Defendant Lovelace's Sixth Amendment right
to speedy trial.
Lovelace argues that he asserted his right to a speedy trial
on December 13, 2018. (Dkt. 158, p. 15). Defendant Lovelace
cites Barker v. Wingo, 407 U.S. 514 (1972)(defendant
can assert right to speedy trial at any point during case),
and U.S. v. Knight, 562 F.3d 1314 (11th
Cir. 2009) (pretrial delay becomes prejudicial as it
approaches one year; Sixth Amendment right attaches at time
of arrest, or indictment, whichever occurs first, and
proceeds to date of trial). (Dkt. 158, pp. 16-17). Defendant
Lovelace contends that he is three and one-half years into a
prejudicial delay of Defendant's Sixth Amendment right to
a speedy trial. Defendant Lovelace contends that he meets all
four prongs of the test for violation of the Sixth Amendment
right to a speedy trial, and therefore the Court should
dismiss this case with prejudice. (Dkt. 158, p. 18).
Motion to Suppress
Government responds that the Criminal Complaint does not
contain false allegations concerning Defendant Lovelace's
criminal activity. The Government asserts that Defendant
Lovelace is incorrect in arguing that the affidavit contains
a false statement of the law, specifically in asserting that
his activities were not in violation of the law because it
was "perfectly allowable for [him] or for anybody to pay
for the furnishing of the swabs to collect the saliva."
(Dkt. 158 at 12:11-13;14).
Government further argues that the Indictment (Dkt. 24) is
the operative charging document, not the Criminal Complaint
(Dkt. 1). Since Defendant Lovelace has been charged by
indictment, Defendant Lovelace's Motion to Suppress is
without merit. Augustin v. United States, 2018 WL
4323913, *9 (E.D. Tenn. Sept. 10, 2018)(unpublished).
Government further argues that if the Court construed
Defendant's Motion as a motion to dismiss the indictment,
there is no legal infirmity in the indictment. United
States v. Belcher, 927 F.2d 1182, 1185 (11th
Government further argues that in the Motion to Suppress,
Defendant Lovelace essentially argues that the affidavit
supporting the Complaint ignored an affirmative defense, that
it was legal to provide certain medical supplies to medical
clinics for their use in collecting the swab specimens.
Government asserts that Defendant Lovelace relied on the
definition of "remuneration" in 42 C.F.R. Sec.
411.351, but that is a regulation concerning a statutory
exclusion (42 U.S.C. Sec. 1395nn(h)(1)(C)(ii)) from the
definition of remuneration in a different statute, the Stark
Law. See Pub. Law No. 101-239. 103 Stat. 2106
(1989). The Government notes that it is accurate that the
Stark Law excludes the provision of biological test supplies
from the definition of improper remuneration. The Government
also notes that the Anti-Kickback Statute does not include a
similar exclusion for the provision of certain items, devices
or supplies. 42 U.S.C. Sec. 1320a-7b(b)(3). The Government
argues that the only carve-outs for remuneration under the
Anti-Kickback Statute are the specific statutory exceptions
and regulatory safe harbors under the Anti-Kickback Statute,
and the statutory exceptions to the definition of
remuneration under the Stark Law do not have any impact on
the definition of remuneration under the Anti-Kickback
Government further argues that the safe harbor that Defendant
Lovelace identifies would not insulate Defendant
Lovelace's conduct in paying illegal cash kickbacks to
the clinics in return for the specimens they collected.
Defendant Lovelace is not charged with paying remuneration in
the form of the provision of biological test supplies, but
with paying remuneration in the form of cash kickbacks in
violation of the Anti-Kickback Statute, and there is no safe
harbor for kickbacks.
Motion to Dismiss Indictment With Prejudice
Government argues that Defendant Lovelace's Motion to
Dismiss the Indictment with prejudice is without merit and
should be denied.
Government recognizes that the four-part test in Barker
v. Wingo, 407 U.S. 514, 530 (1972) applies to the
Court's consideration of the alleged violation of
Defendant's Sixth Amendment right to speedy trial:
1. the length of the delay;
2. the reason for the delay;
3. whether and how Defendant asserts his right;
4. any resulting prejudice to Defendant caused by the delay.
Government notes that Defendant Lovelace was arrested on
November 14, 2014 on the Complaint. At Defendant
Lovelace's initial appearance on November 17, 2014,
Defendant Lovelace was detained and determined to be in
violation of his bond in No. 8:14-CR-464-T-23AAS. A grand
jury returned an Indictment on December 10, 2014.
Government notes that Defendant Lovelace argues that the
delay from his arrest and indictment to the start of his
trial, approximately 4.5 years, is presumptively prejudicial
and triggers Barker analysis. The Government
recognizes that courts have held that a delay becomes
"presumptively prejudicial" as it approaches one
year. United States v. Schlei, 122 F.3d 944, 987
(11th Cir. 1997).
Government argues that, although a Barker analysis
is triggered by presumptively prejudicial delay, Defendant
Lovelace's argument fails the remaining three prongs of
the Barker test.
outset, the Government argues that Defendant Lovelace
personally requested or consented to each and every delay
since his indictment either by signed waiver of his speedy
trial rights and/or by orally waiving those rights in open
court and filing motions to continue the trial.
Government further argues that the ostensible reason for the
delay in this case is attributable to Defendant's desire
to defend himself on one case at a time, i.e. to focus on his
defense at trial in No. 8:14-CR-464-T-23AAS and to pursue his