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Government's Time Sensitive Motion to Compel Medical Records or, Alternatively, for an Order Authorizing Issuance of Rule 17(c) Subpoena —…
No. 6:22-cr-00201-AGM-LHP · Doc. 229 · Docket on CourtListener
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
UNITED STATES OF AMERICA
v. CASE NO. 6:22-cr-00201-WWB-LHP
EVAN EDWARDS
TIME SENSITIVE MOTION TO COMPEL MEDICAL RECORDS OR,
ALTERNATIVELY, FOR AN ORDER AUTHORIZING ISSUANCE OF RULE
17(c) SUBPOENA
The United States of America by Roger B. Handberg, United States Attorney
for the Middle District of Florida, by the undersigned AUSA, hereby requests that
this Court (1) compel the production of the medical records in the defendant’s
possession from Advent Health New Smyrna Beach Hospital dated July 8, 2022,
through August 25, 2022; (2) order the production of the Advent Health New
Smyrna Beach records directly from the hospital; or (3) alternatively, enter an order
authorizing the issuance of a subpoena under Federal Rule of Criminal Procedure
17(c) for the medical records from Advent Health New Smyrna Beach Hospital
dated July 8, 2022, through August 25, 2022.
This Court previously ordered the disclosure of the defendant’s medical
records to be produced to the parties based upon the parties’ joint request. Doc. 45.
The Court’s order specifically identified the medical records from the Orlando
Regional Medical Center from December 14, 2022 forward, but did not specifically
address the Advent Health Records New Smyrna Beach Hospital dated July 8, 2022,
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through August 25, 2022. Nevertheless, the defendant signed a specific release of
medical records for the Advent Health Records when he was in BOP custody at
FMC Devens, and based upon information and belief, also provided a release for the
same information to be provided to defense counsel. On October 15, 2024, the
government contacted counsel and requested the Advent Health Records New
Smyrna Beach Hospital dated July 8, 2022, through August 25, 2022. See Exhibit A.
Although counsel did not object to their production, he also did not acknowledge
having the documents, or agree to produce them stating “That’s quite odd. As I
recall, your office provided them to me or I to your office some time ago.” See
Exhibit B.
I. Background
On December 7, 2022, a federal grand jury returned an indictment against the
defendant, Evan Edwards, charging him with Conspiracy to Commit Bank Fraud in
violation of 18 U.S.C. § 1349, Bank Fraud in violation of 18 U.S.C. §§ 1344 and 2,
False Statement to Lending Institution in violation of 18 U.S.C. §§ 1014 and 2, and
Visa Fraud in violation of 18 U.S.C. § 1546(a). The sophisticated scheme involved
multiple frauds to procure more than $8 million in funds from the Federal
Government. 1
1
As an initial matter, the government notes that all of the competency reports and medical
reports were provided to all parties by agreement with the defense. The documents have been
reviewed by the Court and arguably part of the record of a judicial proceeding, and are
"judicial documents," to which common-law presumption of public access attaches. See United
States v. Sattar, 471 F. Supp. 2d 380, 385 (S.D.N.Y. 2006), see also Nixon v. Warner Commc'ns,
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On or about May 15, 2023, the defendant signed a release authorizing the
Department of Justice and the Bureau of Prisons to obtain these specific medical
records from Advent Health dated July 8, 2022, through August 25, 2022. See
Exhibit A, redacted. Based upon conversations with the record custodians and the
legal department of Advent Health, they do not have a record of receiving the
release, nor of sending the records to the BOP.2 Based upon conversations with the
record custodians and the legal department of Advent Health, the defendant also
authorized the release of the medical records from Advent Health dated July 8, 2022,
through August 25, 2022 to defense counsel and those records were sent to defense
counsel.
On or after September 23, 2024, the Court and the parties received the 18
U.S.C. § 4241(d) Competency Restoration Report by Dr. Chad Brinkley. On
October 8, 2024, the Court held a status conference in which the government made a
request for the appointment of Dr. Ryan Darby, a neurologist, to review the medical
and mental health records of the defendant and to render an opinion as to his
competency and/or restoration. ECF No. 226. The Court agreed and appointed Dr.
Inc., 435 U.S. 589, 597 (1978), Callahan v. United Network for Organ Sharing, 17 F. 4th 1356
(11th Cir. 2021), United States v. Rogers, No. 6:23-cr-7-RBD-RMN, 2023 U.S. Dist. LEXIS
178692, 2023 WL 6464110 (M.D. FL, Oct. 4, 2023), United States v. Kaczynski, 154 F.3d 930,
931 (9th Cir. 1998).
2
Given the extreme time exigency of the Court’s October 8, 2024 order, the government is
simultaneously sending, or resending, the defendant’s release to Advent Health to obtain the
records from July 8, 2022, through August 25, 2022.
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Darby to review the available medical records, but established a strict deadline of
October 29, 2024.
Based upon information provided to mental health evaluators, the defendant
had no significant medical or cognitive problems prior to July 8, 2022. On that day,
according to records not in the possession of the government, the defendant was
brought by family members to the Emergency Department at Advent Health New
Smyrna Beach Hospital. His family reported that he had not eaten or drank for two
days, mumbled incoherently, and had become progressively weak. According to the
reports from his family members, they had been spending every day at the beach
under direct sun. His daughter had reportedly been feeding Mr. Edwards salt and
lemons, with the intention of increasing his fluid intake and enhance alertness.
It is this report of “salt and lemon” poisoning that forms the basis of the
defendant’s claimed cognitive deficiencies which render him incompetent, and
possibly unrestoreably incompetent. That report by family members is sandwiched
by other bizarre and dubious conduct by the defendant’s family, and the defendant
himself. The defendant self-published a self-help book in 2011 in which he bragged
about being “[a]rrested and harassed by the Turkish police and military over 50
times.” See Exhibit C. On or about September 18, 2020, the defendant was arrested
on a federal complaint for allegations of visa fraud. See United States v. Evan Edwards,
Case 6:20-mj-01673-LRH (M.D. FL, Sept. 18, 2020), ECF No. 1. The complaint
was dismissed on the same date. Id., ECF No. 7. The defendant was under
investigation for an $8 million Covid Fraud scheme. On December 14, 2020, the
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United States filed a complaint seizing over $8 million in cash under the defendant’s
control. See United States of America v. Approximately $5,698,846.38, 6:20cv2269 (M.D.
FL, Dec. 14, 2020), ECF No. 1. The defendant’s fraudulent scheme was laid out in
that public filing identifying the defendant and his family member’s involvement in
the fraud. Id. The defendant was properly served notice of the forfeiture complaint.
Id., at ECF No. 19. On December 14, 2022, the defendant was arrested for his
involvement in the Covid Fraud scheme outlined in the civil forfeiture proceeding.
See United States v. Evan Edwards, Case 6:22cr201 (M.D. FL, Dec. 14, 2022), ECF No.
9.
It is between this gap, the initial visa fraud arrest and the forfeiture
proceedings outlining the defendant’s fraud and the arrest for the Covid Fraud, that
the defendant presented himself to Advent Health on or about July 8, 2022 with the
complaint of “salt and lemon” poisoning. During his restoration proceedings at
FMC Devens, the defendant was also observed engaging in malingering behavior. In
administrative notes taken at Devens, the staff noted that the defendant:
is under telemetry monitoring due to suspected selective mutism for secondary
gain versus dementia versus catatonia. Suspected malingering versus dementia
and inability to recognize thirst or hunger or participate in conversation or
self-care. With certain times with some staff members, he is speaking and
answering questions and at other times he is non-verbal.
18 U.S.C. § 4241(d) Competency Report, pg. 11. The defendant was also observed
taking and ingesting hand sanitizer, potentially to make himself appear sick.
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II. The Court has the Authority to Order the Production of Records
The Court has the authority to order the production of the defendant’s medical
records under the circumstances of this case. See United States v. Akula, No. 3:19-cr-
30039-MGM, 2020 U.S. Dist. LEXIS 63903, 2020 WL 1853134 (D. Mass., Apr. 13,
2020) (ordering production of defendant’s hospital records to help establish
kidnapping charge). The defendant has placed his mental state and mental health in
issue by raising the issue of competency. The Court also obviously has the authority
to order the production of the medical records from the defendant himself.
The Health Insurance Portability and Accountability Act of 1996 ("HIPAA")
governs the procedures for the release by health care providers (hereinafter
"providers") of patient health information. Generally, providers may disclose
protected health information only with the written authorization of the patient, or
where there is an opportunity for the patient to agree or object to the disclosure. 45
C.F.R. §§ 164.508, 164.510.
There are certain circumstances, however, where patient authorization is not
required for disclosure, nor is any opportunity required for a patient to object to the
disclosure of her medical records. 45 C.F.R. § 164.512. One such circumstance
includes when there is a court order. 45 C.F.R. § 164.512(e)(1)(i). Another is where
the government serves a subpoena on the provider and the government provides
satisfactory assurance to the provider that it has made reasonable efforts to: (1)
provide notice of the request to the patient; or (2) secure a qualified protective order.
45 C.F.R. § 164.512(e)(1)(ii). A "qualified protective order" is a court order or a
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stipulation between the parties that prohibits the parties from disclosing the produced
patient's health information for purposes other than the litigation and requires the
return to the provider or destruction of the produced patient health information at
the end of the litigation. 45 C.F.R. § 164.512(e)(1)(v); see also Degnan v. United States,
No. CV 06-40099-TSH, 2007 WL 9805541, at *2 (D. Mass. Aug. 31, 2007).
The government may also obtain a patient's medical records without the
patient's authorization for law enforcement purposes permitted by a court order,
warrant, subpoena or summons issued by a judicial officer. 45 C.F.R. § 164.512(f).
III. Rule 17(c) Subpoena Duces Tecum
While the use of a Rule 17(c) subpoena is not a substitute for regular discovery
practice under Rule 16, a party “may still be able to obtain materials not discoverable
under Rule 16 by using Rule 17(c), ‘so long as they are evidentiary.’” United States v.
Hardy, 224 F.3d 752, 755 (8th Cir. 2000) (quoting Bowman Dairy Co. v. United States,
341 U.S. 214, 219 (1951). Rule 17(c) “was not intended to provide an additional
means of discovery,” and such evidentiary materials may be subpoenaed only if there
is “a good-faith effort[ ] made to obtain evidence.” Bowman Dairy Co. 341 U.S. at
219–20. Moreover, in order to gain access to said materials, the moving party must
show that the subpoenaed document: (1) is relevant; (2) admissible; and (3) has been
requested with adequate specificity. United States v. Hardy, 224 F.3d at 755. The
parties can also make the request ex parte. United States v. Hang, 75 F.3d 1275, 1281-
82 (8th Cir. 1996).
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The District Court for the Middle District of Florida, Magistrate Judge Mizel
presiding, recently considered the propriety of issuing a Federal Rule of Criminal
Procedure 17(c) subpoena for the pretrial production of records from the defendant
in United States v. Gyetvay, No. 2:21-cr-83-TPB-NPM, 2022 U.S. Dist. LEXIS 161540,
2022 WL 4095070 (M.D. FL, Sept. 7, 2022). The Court held that to require
production by subpoena, the movant 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.’
Gyetvay, No. 2:21-cr-83-TPB-NPM, 2022 U.S. Dist. LEXIS 161540 * 5, citing United
States v. Nixon, 418 U.S. 683, 699-700 (1974). The Court summarized by saying that
“Generally, the government "must clear three hurdles: (1) relevancy; (2)
admissibility; (3) specificity." Id.
Here, the Advent Health New Smyrna Beach Hospital records dated July 8,
2022, through August 25, 2022 clear all three hurdles. The documents are clearly
relevant, forming the basis for the defendant’s claim of salt and lemon poisoning
causing cognitive decline that renders the defendant incompetent to stand trial, and
perhaps unrestoreably incompetent. Further, all mental health evaluations reference
the Advent Health New Smyrna Beach Hospital records as the “source” documents
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establishing the mechanism of the defendant’s cognitive deficiency. As such, the
documents are clearly admissibly in any competency hearing. Finally, the request is
extraordinarily specific, referencing only those documents relied upon by other
evaluators.
IV. The Defendant’s Waiver and the Court’s Prior Orders
As previously stated, the defendant previously authorized the release of the
Advent Health New Smyrna Beach Hospital records dated July 8, 2022, through
August 25, 2022 and that release forms an independent basis for the production of
the records, which the government is separately pursuing. Further, the government
suggests, the Advent Health New Smyrna Beach Hospital records dated July 8, 2022,
through August 25, 2022 are within the ambit of those records previously ordered to
be produced by the Court, although perhaps not specifically described, and the
Court’s prior Order provides an additional basis for disclosure.
WHEREFORE, the government requests that this Court order the production
of the Advent Health New Smyrna Beach Hospital records dated July 8, 2022,
through August 25, 2022 to the government and defense so that the records may be
provided to Dr. Darby.
Respectfully submitted,
ROGER B. HANDBERG
United States Attorney
By: /s/ Kara M. Wick
Kara M. Wick
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Assistant United States Attorney
Florida Bar No. 0085578
400 W. Washington Street, Suite 3100
Orlando, Florida 32801
Telephone: (407) 648-7500
E-mail: Kara.Wick@usdoj.gov
By: /s/ James D. Peterson
James D. Peterson
Trial Attorney
Bar No. VA 35373
United States Department of Justice
1331 F Street N.W. 6th Floor
Washington, D.C. 20530
Desk: (202) 353-0796
E-mail: James. D.Peterson@usdoj
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CERTIFICATE OF SERVICE
I hereby certify that on the 17th day of October 2024, a true and correct copy of
the foregoing document was filed with the Court using the Court’s CM/ECF systems
and was served upon each attorney of record via ECF notification:
Brian Philips, Esq.
/s/ James D. Peterson
James D. Peterson
Trial Attorney
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