United States v. Barrett
153 F. Supp. 3d 552
E.D.N.Y2015Background
- Andrew Barrett, a licensed pharmacist, was indicted in the E.D.N.Y. for health care fraud, false claims, money laundering, and multiple tax-related offenses tied to pharmacies he owned/operated in both the Eastern and Southern Districts of New York.
- Government alleges Barrett caused Medicaid/Medicare to be billed for refills never dispensed at Economy Drug (E.D.N.Y.) and that over $5.8 million was improperly billed.
- Alleged scheme (2010–2012) includes transferring fraud proceeds from Eastern District pharmacies to Southern District pharmacies (B&P, Clarkstown), then withdrawing funds for personal use while mischaracterizing them on corporate and personal tax returns.
- Defendant moved pretrial to dismiss the tax counts for improper venue, for a bill of particulars (including identities of unindicted co-conspirators), and for early disclosure of certain materials; government moved in limine to admit tax-evidence even if tax counts are dismissed.
- Court held venue challenge timely for consideration, denied dismissal of the Tax Counts (without prejudice to renew at close of government’s case), ordered production of known unindicted co-conspirators, required a preliminary government witness list, and granted government motion to admit tax-related evidence (except 2010 returns) even if tax counts later dismissed.
Issues
| Issue | Government's Argument | Barrett's Argument | Held |
|---|---|---|---|
| Venue for Tax Counts in E.D.N.Y. | Venue proper under continuing-offense statute and likely provable by preponderance via defendant’s Eastern District acts and effects | Venue improper — returns were made/subscribed and accountant located in S.D.N.Y.; motion under §3237(b) time-bar asserted | Denied dismissal; venue likely provable at trial; §3237(b) inapplicable; defendant may renew after government case (Rule 29) |
| Admissibility of tax-evidence if Tax Counts dismissed | Tax evidence is inextricably intertwined with money laundering/health-care fraud and directly probative of concealment, knowledge, motive | Tax counts and tax evidence are separate, risk confusing jury and creating a trial-within-a-trial | Granted: tax evidence (except 2010 returns) admissible as direct evidence or under Rule 404(b); probative value not substantially outweighed by prejudice (Rule 403) |
| Bill of particulars — identities of unindicted co-conspirators | Opposed or not committed to full disclosure | Requests names to avoid surprise given repeated "together with others" allegations | Granted: government must produce list of known unindicted co-conspirators within 30 days (Nachamie/Kahale factors applied) |
| Early disclosure (Giglio/Jencks, exhibits, witness list) | Will produce Giglio/Jencks per policy; will ID exhibits two weeks before trial and witness list per pretrial schedule | Seeks Giglio/Jencks, exhibit IDs, and witness list 60 days before trial | Denied for Giglio/Jencks (Jencks Act/ Coppa); denied for case-in-chief document identification; granted in part for witness list — government must disclose likely witnesses at least 45 days before trial |
Key Cases Cited
- United States v. Cabrales, 524 U.S. 1 (Sup. Ct.) (venue cannot be based solely on where laundered funds were generated)
- United States v. Rooney, 866 F.2d 28 (2d Cir.) (§7206 offenses treated as continuing; venue may lie where return was made, filed, or preparer received information)
- United States v. Rowe, 414 F.3d 271 (2d Cir.) (substantial-contacts test for venue; analyze site of acts, nature of crime, locus of effect, suitability for factfinding)
- United States v. Coppa, 267 F.3d 132 (2d Cir.) (Jencks Act bars pretrial disclosure of witness statements; courts must ensure impeachment material is available in time for effective use at trial)
- United States v. Carboni, 204 F.3d 39 (2d Cir.) (uncharged conduct that is inextricably intertwined with charged offenses is not 404(b) other-crimes evidence)
- United States v. Monaco, 194 F.3d 381 (2d Cir.) (failure to report spending inconsistent with reported income admissible in money-laundering cases)
- United States v. Pace, 314 F.3d 344 (9th Cir.) (act of making a return commences when one furnishes material information; venue proper where such conduct occurs)
- United States v. Hirschfeld, 964 F.2d 318 (4th Cir.) (venue for §7206(2) may lie where aiding/assisting acts occurred)
- United States v. Rommy, 506 F.3d 108 (2d Cir.) (government must prove venue by preponderance; circumstantial evidence may suffice)