United States District Court, Eastern District of Michigan, Southern Division
ORDER DENYING DEFENDANT’S MOTION TO COMPEL PRODUCTION OF NSA TELEPHONE RECORDS (DOC. # 124)
Victoria A. Roberts, United States District Judge
I. INTRODUCTION AND BACKGROUND
Defendant Surya Nallani (“Nallani”) is charged with healthcare fraud. Nallani filed a motion to compel production of NSA telephone records under Brady and Rule 16 of the Federal Rules of Criminal Procedure. In the alternative, Nallani asks the Court to grant a subpoena duces tecum under Rule 17 of the Federal Rules of Criminal Procedure. Nallani says applicable law allows certain non-physician providers (“NPPs”) to bill Medicare for in-home services, as long as those providers are working in collaboration with a supervising physician. She says the records will prove she properly billed Medicare for services rendered by NPPs under her supervision.
The Government says it agrees that collaboration between physicians and NPPs is allowable billing under Medicare; however, the Government says whether Nallani collaborated is irrelevant to its theories of liability because it does not accuse Nallani of failing to collaborate. Instead, the Government says Nallani: (1) fraudulently billed Medicare for services provided by NPPs as though Nallani herself, a physician, provided them allowing her to obtain reimbursements from Medicare at a higher rate; (2) fraudulently billed Medicare for services not rendered by anyone, neither her nor a NPP because the beneficiaries were dead at the time the services were rendered; and (3) asserted that patients were “homebound, ” when many were not.
The Court DENIES Nallani’s motion, but orders preservation of the records pending the outcome of the proceeding.
Under Brady v. Maryland, 373 U.S. 83 (1963), a prosecutor must reveal evidence that is both favorable to the accused and material to guilt or punishment. Owens v. Guida, 549 F.3d 399, 415 (6th Cir. 2008). Evidence is material if there is “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. White, 492 F.3d 380, 410 (6th Cir. 2007). A “reasonable probability” of a different result is shown when the government's evidentiary suppression undermines confidence in the outcome of the proceeding. Kyles v. Whitley, 514 U.S. 419, 434 (1995).
Federal Rule of Criminal Procedure 16(a)(1)(E) provides that, upon defendant’s request, the government must permit the defendant to inspect, among other things, data that is within the government's possession, custody, or control if the item is material to preparing the defense. When evaluating materiality, a court considers “the logical relationship between the information withheld and the issues in the case, as well as the importance of the information in light of the evidence as a whole.” United States v. Lykins, 428 F.App'x 621, 624 (6th Cir. 2011).
Rule 17 of the Federal Rules of Criminal Procedure says “a subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence.” Fed. R. Crim. P. 17(c). In Nixon v. United States, 418 U.S. 683 (1974), the Supreme Court established the test the party must meet to qualify for a subpoena duces tecum.
The moving party must show:
(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general ‘fishing expedition.’
Id. at 699-700. And, the material requested must be relevant, admissible, and specific. United States v. Abdush-Shakur, 465 F.3d 458, 467 (10th Cir. 2006).
The Court is not convinced that the NSA phone records are material to Nallani’s defense. Nallani says the records show that she collaborated with her NPPs while in contact with them on the telephone and legitimately billed for the services of her NPPs. However, this argument does not meet the material requirements set forth in Brady, Rule 16, or Rule 17; Nallani fails to ...