30 F. Supp. 3d 514
E.D. Va.2014Background
- Perry and Angela Perry are charged in an 18-count superseding indictment, with Count Fourteen alleging falsification/alteration of CPC office records (DMAS-90s) over roughly four years.
- The Government narrowed its expected trial evidence for Count Fourteen to DMAS-90 time sheets within 72 identified CPC patient files, despite thousands of DMAS-90s present.
- Perry’s defense affidavits describe post-search conduct in 2012–2014, including firing employees and reporting embezzlement, with counsel coordinating or advising actions and communications with federal agents.
- The Government seeks to disqualify Perry’s defense counsel (Williams Mullen) on grounds of potential testimony as a fact witness about the 2014 local-embezzlement complaint.
- Perry seeks a bill of particulars to clarify the specific DMAS-90s the Government will rely on for Count Fourteen and to avoid unfair surprise at trial.
- The Court grants Angela’s joinder, grants the bill of particulars, and denies the Government’s disqualification motion, while directing targeted DMAS-90 disclosures and advising independent counsel consultation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a bill of particulars is required for Count Fourteen | Perry seeks specificity to identify falsified DMAS-90s. | Government’s general DMAS-90 indication is insufficient for trial preparation. | Count Fourteen bill of particulars is granted; identify specific DMAS-90s by date. |
| Scope of disclosure for DMAS-90 evidence | Broad, unidentified DMAS-90s would cause unfair surprise. | Discretion to define scope is adequate if identified. | Government must identify the falsified/altered DMAS-90s it will rely on; narrow set identified by July 23, 2014. |
| Whether defense counsel should be disqualified under Rule 3.7 | Counsel’s testimony could be necessary and prejudicial to Perry. | Counsel’s testimony is not necessary; waiver and strategy arguments apply. | Disqualification denied; no showing counsel is or may be prejudicial to Perry. |
| Whether defense counsel’s testimony is strictly necessary | Testimony needed to address 2014 conduct and counsel involvement. | Testimony would be cumulative and not strictly necessary. | Not strictly necessary at this stage; testimony deemed non-essential. |
| Right to counsel of choice versus ethical constraints | Criminal defendant’s counsel of choice should be preserved; avoid conflict-driven disqualification. | Ethical duties permit protective action when conflicts arise. | Presumption in favor of counsel of choice respected; no disqualification unless ethical concerns are proven. |
Key Cases Cited
- United States v. Schembari, 484 F.2d 931 (4th Cir.1973) (bill of particulars narrows, not previews evidence)
- Wheat v. United States, 486 U.S. 153 (1988) (right to counsel of choice; presumption in favor of chosen counsel)
- Gonzalez-Lopez v. United States, 548 U.S. 140 (2006) (right to counsel of choice is a core constitutional right)
- Aetna Cas. & S. Co. v. United States, 570 F.2d 1197 (4th Cir.1978) (disqualification standards require careful, case-specific analysis)
- Personalized Mass Media Corp. v. Weather Channel, Inc., 899 F. Supp. 239 (E.D. Va. 1995) (three-part test for disqualification: relevant, necessary, prejudicial)