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United States v. Lovelace

United States District Court, M.D. Florida, Tampa Division

June 12, 2019

UNITED STATES OF AMERICA,
v.
DAVID BROCK LOVELACE.

          ORDER

          SUSAN C. BUCKLEW SENIOR UNITED STATES DISTRICT JUDGE

         This 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

         Defendant 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).

         Defendant 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.

         I. Motion to Suppress Complaint

         Defendant 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).

         Defendant 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).

         II. Motion to Dismiss Indictment With Prejudice

         Defendant Lovelace moved to dismiss the Indictment with prejudice for violation of Defendant Lovelace's Sixth Amendment right to speedy trial.

         Defendant 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).

         III. Response

         A. Motion to Suppress

         The 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).

         The 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).

         The 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 Cir. 1991).

         The 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.

         The 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 Statute.

         The 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.

         B. Motion to Dismiss Indictment With Prejudice

         The Government argues that Defendant Lovelace's Motion to Dismiss the Indictment with prejudice is without merit and should be denied.

         The 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.

         The 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.

         The 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).

         The 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.

         At the 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.

         The 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 ...


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