United States District Court, Eastern District of Michigan, Southern Division
OPINION AND ORDER DENYING MOTION TO DISMISS INDICTMENT
ROBERT H. CLELAND, UNITED STATES DISTRICT JUDGE
On March 23, 2013, the government filed a Second Superseding Indictment (Dkt. # 189) charging Defendant Adelfo Pamatmat and others with (1) conspiracy to distribute and possess with intent to distribute controlled substance in violation of 21 U.S.C. §§ 841(a)(1), 846 (“Count 1") and (2) health care fraud conspiracy in violation of 18 U.S.C. §§ 1347, 1349 (“Count 2"). The indictment contains eleven additional counts charging defendants other than Pamatmat. Pamatmat moves to dismiss Counts One and Two on the following grounds: (1) Counts 1 and 2 fail to inform Pamatmat of the specific acts that he performed in furtherance of the conspiracy, with whom he conspired to commit the acts, and the lengths of time Pamatmat engaged in the conspiracy and (2) Counts 1 and 2 charge multiple conspiracies and are duplicitous. (Dkt. # 853, Pg. ID 3684-85.) The government filed a response, arguing that, “[s]ince the indictment is legally sufficient, is not duplicitous, and does not include two conspiracy charges within a single count, the defendant’s motion should be denied.” (Dkt. # 944, Pg. ID 4364.) For the reasons stated below, the motion will be denied.
I. The Indictment
Count 1 of the indictment alleges that, from January 2008 “continuing as to some conspirators until on or about the date of this indictment, ” Pamatmat and forty other defendants conspired with each other “as well as other persons not named in this Indictment” to distribute and possess with intent to distribute controlled substances including oxycodone, oxymorphone, Viccodin, hydrocone bitartrate, and Alprazolam. (Dkt. # 189, Pg. ID 841-43.)
Count 2 alleges that from January 2008 “continuing as to some conspirators until on or about the date of this indictment, ” Pamatmat, thirty-one other defendants, and “others both known and unknown to the Grand Jury” conspired to defraud a health care benefit program affecting commerce. (Id. at 843-45.) Count 2 further alleges that (1) the defendants and others unlawfully enriched themselves by submitting false claims to Medicare, Medicaid, and private insurers; (2) paying kickbacks and bribes to Medicare and Medicaid beneficiaries in order to use their beneficiary numbers for the basis of the fraudulent claims; (3) receiving kickbacks and bribes for arranging the furnishing of services for which payment may be made by Medicare and Medicaid; (4) concealing the submission of fraudulent claims to Medicare, Medicaid, and private insurers, the rexiept and transfer of proceeds from the fraud, and the payment of kickbacks; and (5) divesting proceeds of the fraud for the personal benefit of the defendants and their co-conspirators. (Id. at 845.)
Under the Federal Rules of Criminal Procedure, an indictment “must be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). For an indictment to be constitutional, “first, the indictment must set out all of the elements of the charged offense and must give notice to the defendant of the charges he faces; second, the indictment must be sufficiently specific to enable the defendant to plead double jeopardy in a subsequent proceeding, if charged with the same crime based on the same facts.” United States v. Martinez, 981 F.2d 86, 872 (6th Cir. 1992) (citing Russell v. United States, 369 U.S. 749, 763-64 (1962)).
A. The Indictment Adequately Informs Pamatmat of the Charges Against Him
1. Count 1
Pamatmat alleges that Count 1 is deficient because it does not apprise him of the “acts he engaged in to constitute being an alleged co-conspirator, what acts were entered into by Dr. Pamatmat that showed a conspiracy was willfully formed and with whom and what specific acts were committed by Dr. Pamatmat in furtherance of the conspiracy.” (Dkt. # 853, Pg. ID 3688.) The Sixth Circuit has held, however, that “[a]n overt act . . . need not be charged in a § 846 conspiracy.” United States v. Dempsey, 733 F.2d 392, 396 (6th Cir. 1984) (citation omitted) (explaining that “[o]ur holding that it was not necessary to charge an overt act is based on the conclusion that in enacting 21 U.S.C. § 846 Congress intended to make the conspiracy itself a complete offense.”). Section 846 provides, “Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” 21 U.S.C. § 846. Section 841(a)(1) states, “[I]t shall be unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance . . . .” 21 U.S.C. § 841(a)(1). “The essential elements of conspiracy are that the conspiracy was willfully formed and that the defendant willfully became a member of the conspiracy.” United States v. Bourjaily, 781 F.2d 539, 544 (6th Cir. 1986). These essential elements are included in Count 1. Count 1 alleges that Pamatmat and others (1) intentionally and knowingly (2) conspired (3) to distribute and possess with intent to distribute (4) certain enumerated controlled substances. (Dkt. # 189, Pg. ID 842.) These allegations mirror §§ 841(a)(1) and 846, and “an indictment that recites statutory language in describing the offense is generally sufficient . . . .” United States v. Hudson, 491 F.2d 590, 593 (6th Cir. 2007) (internal quotation marks omitted). The fact that Count 1 does not allege the specific acts that Pamatmat engaged in to join the conspiracy and in furtherance of the conspiracy was not render Count 1 infirm because Count 1 informs Pamatmat of the essential elements of the charge against him.
Pamatmat also challenges Count 1 on the ground that the indictment does not “indicate with any specificity or particularity when Dr. Pamatmat became involved in the conspiracy and the duration of his involvement in the conspiracy.” (Dkt. # 853, Pg. ID 3689.) Parmatmat argues that, because the indictment does not provide specific dates for his involvement in the conspiracy, he cannot adequately prepare a defense, and he will lose his Sixth Amendment protection against double jeopardy. Pamatmat’s argument falls short in both respects.
“Courts have found indictments insufficient where they are open-ended as to both beginning and end dates, but sufficient where they fix the end of the conspiracy and provide an approximate start date.” United States v. Vassar, 346 F. App’x 17, 19-20 (6th Cir. 2009). Count 1 states that the conspiracy began on or about January 2008 and continued “as to some conspirators” until on or about the date of the indictment, which was filed on March 20, 2013. (Id. at 842.) Therefore, Count 1 is not open ended, but rather presents approximate dates for the duration of the conspiracy which enable Pamatmat to prepare for trial and provide double jeopardy protection against charges for the same conspiracy covering the dates described in the count. Moreover, “that conspiracy indictments typically charge ...