Memorandum & Order — United States v. Perry Frankel (E.D.N.Y., Dkt. 44, October 26, 2023)

Summary

A Memorandum & Order in United States of America v. Perry Frankel, 22-CR-0180(JS), U.S. District Court, Eastern District of New York, Document 44, filed 10/26/23. Defendant Perry Frankel moves to compel the discovery of purported Brady material, to quash the Government's grand jury subpoena, and for a bill of particulars. The order denies the Brady motion, grants the motion to quash, and grants in part and denies in part the motion for a bill of particulars, directing the Government to provide a chart denoting whether services were not provided or were medically unnecessary. It recounts the Government's allegation that the defendant billed $17 million in claims for Covid-19 testing at mobile sites. It is signed /s/ JOANNA SEYBERT.

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“Memorandum & Order — United States v. Perry Frankel (E.D.N.Y., Dkt. 44, October 26, 2023).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-2-22-cr-00180-dkt-44-e-d-n-y-95cedf7fa7/, SHA-256 5f3cd44b881152a727c35510c015146ce72eaf6ce1fa55bf1fa85df801b9358c.

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Case 2:22-cr-00180-JS Document 44 Filed 10/26/23 Page 1 of 19 PageID #: 481

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------X
UNITED STATES OF AMERICA,

-against- MEMORANDUM & ORDER
22-CR-0180(JS)
PERRY FRANKEL,

Defendant.
--------------------------------X
APPEARANCES
For United States: Patrick J. Campbell, Esq.
United States Attorney’s Office
Eastern District of New York
271-A Cadman Plaza East
Brooklyn, New York 11201

Kelly M. Lyons, Esq.
United States Department of Justice,
Criminal Division
970 Broad Street
Suite 700
Newark, New Jersey 07102

For Defendant: Timothy Sini, Esq.
Michal E. Cantor, Esq.
Neil Patrick Diskin, Esq.
Nixon Peabody LLP
275 Broadhollow Road
Suite 300
Melville, NY 11747

SEYBERT, District Judge:

Perry Frankel (“Defendant”) moves: (1) to compel the

discovery of purported Brady material; (2) to quash the

Government’s grand jury subpoena; and (3) for a bill of particulars

relating to the Government’s charges. (See Motion, ECF #39.) For

the reasons below, Defendant’s: motion to compel the discovery of

purported Brady material is DENIED; motion to quash the

1
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Government’s Grand Jury Subpoena is GRANTED; and motion for a bill

of particulars is GRANTED in part and DENIED in part. The

Government is directed to provide Defendant with a chart as

described infra.

BACKGROUND 1

I. Summary of the Grand Jury Subpoena and Indictments

On or around March 30, 2022, Advanced Cardiovascular

Diagnostics, PLLC (“Advanced Cardio”), a company owned by

Defendant, was served a grand jury subpoena (“Subpoena”) seeking

records relating to the Defendant’s business and billing practices

from March 1, 2020 through the date of the Subpoena’s service. A

few weeks later, on April 19, 2022, Defendant was charged by a

three-count indictment with health care fraud (the “First

Indictment”). (See ECF # 1.) On June 27, 2023, Defendant was

charged by a seven-count superseding indictment with health care

fraud and engaging in unlawful monetary transactions (the

“Superseding Indictment” or “S-1”). (See ECF # 35.) On September

30, 2022, the Subpoena issued to Advanced Cardio expired. (Opp’n,

ECF #42, at 16).

1 The facts are recited as relevant to the Court’s analysis and
are drawn from the Case Docket, the Indictments, and the parties’
submissions relative to the instant motion. Citations to “DX” refer
to the Defendant’s Exhibits.

2
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The alleged criminal scheme arises in connection with

Defendant’s operation of mobile Covid-19 testing sites (“Mobile

Testing Sites”) during the Covid-19 pandemic. In particular, the

Government alleges that Defendant fraudulently submitted billing

claims to Health Care Benefit Programs 2 for services rendered to

persons who received Covid-19 tests at Mobile Testing Sites.

According to the Government, Defendant billed for “evaluation and

management” services which were “medically unnecessary, not

provided as represented and illegible for reimbursement.” (S-1 at

9.) For some of the billing claims, the Government alleges

Defendant was not present in New York State on the date those

services were purportedly provided. (Id.)

Defendant billed $17 million in allegedly fraudulent

claims, resulting in his receipt of approximately $3 million in

payments from Health Care Benefit Programs. Id. Defendant is also

charged with engaging in unlawful monetary transactions by using

the proceeds of the alleged scheme to make purchases in amounts

greater than $10,000. (Id. at 11.)

II. Procedural History

a. Discovery

The parties agree the Government has produced voluminous

discovery in this matter. (Support Memo, ECF # 39-18, at 2; Opp’n

2 The term “Health Care Benefit Programs” as defined in the
Superseding Indictment is used herein.
3
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at 12.) In particular, the Government has provided Defendant with:

(1) the names of the five individuals whose insurance claims are

charged in the Superseding Indictment; (2) the initials, dates of

service, location of service, and insurance information for an

additional beneficiary the Government may call at trial; and (3)

over a dozen spreadsheets, totaling nearly 310,000 pages, which

catalogue hundreds of thousands of patient claims, identified by

claim number and date, and at least one of which contains diagnosis

codes, procedure codes, and payment status information. (Support

Memo at 15, n.6; Opp’n at 12-13).

b. Meetings Amongst the Parties

Throughout November and December 2022, the parties

discussed Defendant’s belief that, during the Covid-19 pandemic,

he was not required to be present in New York State in order to

bill for services rendered by non-physician practitioners working

under his remote supervision. This was due to a change in

applicable regulations, which Defendant calls the “Supervision

Rule Change”. Following the November and December 2022

discussions, in January 2023, the Government interviewed its

experts about the Supervision Rule Change, and subsequently

produced documents memorializing those interviews. (DX 11, 12.)

4
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III. The Instant Motions

Defendant now moves: (1) to compel the discovery of

purported Brady material; (2) to quash the Government’s Subpoena;

and (3) for a bill of particulars relating to the Government’s

charges. (See Support Memo.) In particular, the Defendant seeks

the following:

(A.) “Brady” Material: All information and material relating to

the Supervision Rule Change, including but not limited to:

(1) When the prosecutors first learned of the Supervision

Rule Change;

(2) When the prosecutors first discussed [said change]

with anyone else, including each other, supervisors,

Franco [Government’s case agent], other government

officials, witnesses, etc.;

(3) The content of those communications;

(4) The views, opinions, and/or positions of government

officials regarding the Supervision Rule change and

its implementation and/or enforcement; and

(5) Contact information for government employees who have

provided an opinion or view on the Supervision Rule

change, or who have told the Government that they were

not aware of it.

(Id. at 13.)

5
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(B.) An Order Quashing the Subpoena: “if the term of the grand

jury has expired and . . . regardless of whether the grand

jury term has expired, because the Subpoena improperly

seeks information in preparation of trial.” (Id. at 23.)

(C.) Bill of Particulars: “identifying each claim it intends to

prove was fraudulent, including the date of service, the

claim number, the patient’s name, the services and amount

billed, the payor, the amount paid, and the reason why the

Government is alleging the claim is fraudulent.” (Id. at

19.)

DISCUSSION

I. Motion to Compel “Brady” Material

Defendant moves for an order compelling the production

of all Brady material relating to the Supervision Rule Change,

including all communications “by and among government officials

. . . who have provided an opinion or view on the Supervision Rule

Change, or who have told the Government that they were not aware

of it.” (Id. at 10.) Defendant contends the Government is obligated

to provide this information under Brady v. Maryland, 373 U.S. 83

(1963), because “it is likely that during those communications,

government[] officials expressed their ignorance of the

Supervision Rule Change or their views on its interpretation.”

(Id. at 12.) The Government’s purported ignorance on the

6
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Supervision Rule Change is “highly probative” according to

Defendants, because it “shows how easily a physician or billing

specialist could be confused by and/or unaware of the unprecedented

number of regulatory changes and CPT coding rules that were

constantly being implemented and adjusted during the course of the

pandemic.” (Id.) The Defendant seeks to use the Government’s

purported ignorance as to the Supervision Rule Change to show “that

it is not reasonable to infer criminal intent from not complying

with a complicated, ever-changing set of rules that the Government

cannot even get right.” (Id.)

The Government counters Defendant’s arguments, noting

the allegations in the Superseding Indictment do not concern

whether Defendant supervised his personnel during the relevant

time period. (Opp’n at 5.) According to the Government, “the

defendant is not charged with committing health care fraud simply

because he was not present at . . . COVID-19 mobile testing sites

or because he violated regulations. . . . [H]e is charged with

billing $17 million to federal health care programs for services

that were not provided either by him, as the claims to Insurers

represented they were, or his employees, whom he claims he

supervised.” (Id.) The Government further argues “[i]nternal

government documents prepared in connection with prosecuting a

case . . . are explicitly exempt from disclosure under Federal

Rule of Criminal Procedure 16” and, to the extent Defendant

7
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requests documents from other governmental agencies, such

documents are not in the Government’s “possession, custody, or

control” and thus are not subject to disclosure. (Id. at 7-8.)

A. Legal Standard

“The basic rule of Brady is that the Government has a

constitutional duty to disclose favorable evidence to the accused

where such evidence is ‘material’ either to guilt or to

punishment.” United States v. Coppa, 267 F.3d 132, 139 (2d Cir.

2001). Accordingly, a Brady violation occurs only where the

Government fails to turn over evidence that “could reasonably [have

been] taken to put the whole case in such a different light as to

undermine confidence in the verdict.” Id. (collecting cases);

United States v. Schlesinger, 439 F. Supp. 2d 255, 257 (E.D.N.Y.

2006) (“Information is material under Brady if there is a

reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.”) (internal quotation marks

and citations omitted); United States v. Payne, 63 F.3d 1200, 1208

(2d Cir. 1995).

8
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B. Analysis

The Court finds the information sought by Defendant does

not meet the materiality requirements of Brady, and accordingly

need not be disclosed. It bears repeating that Defendant is charged

with health care fraud by billing for medical procedures that were

either unnecessary or not provided at all. (S-1 at 9.) While the

Superseding Indictment does briefly mention that the Defendant was

not in New York State at the time some of the alleged fraud took

place, (id.), there is no allegation in the Indictment that the

fraud occurred because the Defendant was not in New York State or

because he remotely “supervised” his personnel as they rendered

services to patients. Accordingly, discovery on the Supervision

Rule Change, a rule that permitted Defendant to remotely supervise

his staff, is not “material to either guilt or punishment” because

it does not bear any relation to the charges alleged. Coppa, 267

F.3d at 139; see United States v. Garcia, 936 F.3d 648, 655

(finding discovery immaterial as it related to an issue not in

dispute at trial). Moreover, the Government’s own view of one of

the many regulations applicable to Defendant and his practice

during the pandemic is irrelevant to Defendant’s own state of mind

consistent with the charges alleged. Defendant is the person

charged with healthcare fraud, not the Government. Defendant’s

mens rea is the only mens rea that bears any relation to the

outcome of this case.

9
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Because the Court finds the requested discovery is

immaterial under Brady, it need not address the parties’ other

arguments on this issue. Accordingly, Defendant’s motion to compel

discovery of Brady material is DENIED. 3

II. Motion to Quash Subpoena

Defendant moves to quash the Subpoena issued to his

company, Advanced Cardio, for two reasons. First, Defendant

alleges the Court does not have jurisdiction to enforce the

Subpoena after the grand jury’s term expired. (Support Memo at

21.) Second, Defendant alleges the Subpoena improperly seeks

information in preparation of trial. (Id. at 22.) The Government

counter-argues that, as of the date of its filing, the Subpoena

had not expired. (Opp’n at 15.) It further alleges that the timing

of the service of the Subpoena indicates that it was not issued

for an improper purpose, since it was issued almost three weeks

before the First Indictment and more than year before the

Superseding Indictment. (Id. at 16-17) Therefore, the Subpoena was

not issued for the sole or dominant purpose of preparing for trial.

(Id.)

3To the extent Defendant seeks to exclude evidence concerning his
compliance or lack of compliance with the Supervision Rule Change,
or his whereabouts during the provision of services, Defendant may
seek such exclusion by filing a pre-trial motion in limine.
10
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A. Legal Standard

“Any order to produce evidence pursuant to an expired

grand jury’s subpoena is void.” In re Grand Jury Proceeding, 971

F.3d 40, 51 (2d Cir. 2020) (citing Loubriel v. United States, 9

F.2d 807 (2d Cir. 1926)) (internal quotation marks omitted)

(emphasis added). This is because “the duty imposed by a subpoena

to produce documents to, or to testify before, a specific grand

jury ceases once that grand jury's term expires.” Id. at 50 (noting

this is “long-standing precedent” in the Second Circuit).

B. Analysis

Here, the Government concedes that the grand jury term

expired on September 30, 2023, eighteen months after the Subpoena

was issued. (Opp’n at 16.) Accordingly, on September 30, 2023,

Advanced Cardio’s duty to comply with the Subpoena ceased, and

this Court was divested of jurisdiction to enforce the Subpoena.

For that reason, the Defendant’s motion to quash is GRANTED, and

the Court need not address the parties’ additional arguments. 4

Notwithstanding the foregoing, the Court acknowledges that the

Government reserves its right to issue a trial subpoena pursuant

to Fed. R. Crim. P. 17.

4 Notwithstanding the foregoing, the Court acknowledges that the
Government reserves its right to issue a trial subpoena pursuant
to Rule 17 of the Federal Rules of Criminal Procedure.
11
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III. Motion for a Bill of Particulars

Defendant contends his requests for particulars are

warranted because the Superseding Indictment only specifies five

claims of allegedly fraudulent billing, totaling $1,150, whereas

the Defendant is charged with effecting $17 million in fraudulent

claims. According to Defendant, the “defense is thus left to guess

as to what [other] specific claims the Government will attempt to

prove” were fraudulent at trial. (Support Memo at 14.) Moreover,

Defendant argues that he is entitled to information on the “manner

in which such claims were purportedly fraudulent” because the

Government has alleged “both that no services were provided and

also that services were medically unnecessary.” (Reply, ECF # 43,

at 8, 9.) In response, the Government argues Defendant has already

been provided with information concerning the identity of the six

beneficiaries whose claims may be presented to the jury at trial,

and, to the extent Defendant seeks “early disclosure of which

additional claims the government intends to prove at trial,” such

disclosures will be made at least sixty days before trial, pursuant

to the Court’s July 18, 2023 Order (see ECF #36). (Opp’n at 14-

15.) Moreover, the Government argues that in situations where it

alleges all billing claims are fraudulent, a bill of particulars

is not necessary. (Id. at 14.)

12
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A. Legal Standard

Rule 7(f) of the Federal Rules of Criminal Procedure

permits a defendant to seek a bill of particulars to enable him to

“prepare for trial, to prevent surprise, and to interpose a plea

of double jeopardy should he be prosecuted a second time for the

same offense.” United States v. Bortnovsky, 820 F.2d 572, 574 (2d

Cir. 1987); United States v. Wilson, 493 F. Supp. 2d 364, 369

(E.D.N.Y. 2006). “A bill of particulars is required only where the

charges of the indictment are so general that they do not advise

the defendant of the specific acts of which he is accused.” United

States v. Chen, 374 F.3d 151, 163 (2d Cir. 2004) (quoting United

States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999)) (internal

quotation marks omitted). Thus, “[t]he applicable standard for

whether a bill of particulars should issue is not whether the

information sought would be helpful to the defense, but whether it

is necessary.” United States v. Taylor, 17 F. Supp. 3d 162, 178

(E.D.N.Y. 2014), aff'd, 802 F. App’x 604 (2d Cir. 2020). The

defendant bears the burden of showing “the information sought [in

a bill of particulars] is necessary and that [the defendant] will

be prejudiced without it.” United States v. Donovan, No. 20-CR-

374, 2021 WL 5819915, at *4 (E.D.N.Y. Dec. 6, 2021) (quoting United

States v. Fruchter, 104 F. Supp. 2d 289, 312 (S.D.N.Y. 2000)

(internal quotation marks omitted)).

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To determine whether a bill of particulars is warranted,

courts may look “beyond the four corners of the indictment” and

“determine whether the information sought has been provided

elsewhere, such as in other items provided by discovery, [and]

responses made to requests for particulars.” United States v.

Barrett, 153 F. Supp. 3d 552, 571 (E.D.N.Y. 2015) (citing United

States v. Strawberry, 892 F. Supp. 519, 526 (S.D.N.Y. 1995).

Accordingly, a bill of particulars is unnecessary where “the

indictment and/or pretrial discovery provide the defendant with

sufficient information as to the nature of the charges.” United

States v. Drivas, No. 10-CR-0771, 2012 WL 3011023, at *2 (E.D.N.Y.

July 19, 2012) (citing United States v. Walsh, 194 F.3d 37, 47 (2d

Cir. 1999) (further citations omitted)). “The Government, however,

does not fulfill its obligations merely by providing mountains of

documents to defense counsel who were left unguided as to the

nature of the charges pending.” United States v. Wey, No. 15-CR-

-611, 2017 WL 237651, at *18 (S.D.N.Y. Jan. 18, 2017)(citing United

States v. Lino, 00-CR-0632, 2001 WL 8356, at *4 (S.D.N.Y. Jan. 2,

2001) (further citations and quotation marks omitted)). The

decision of whether to grant or deny a motion for a bill of

particulars rests within the sound discretion of the district court

and is reviewed only for abuse of discretion. United States v.

Cephas, 937 F.2d 816, 823 (2d Cir. 1991); United States v. Ramirez,

14
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609 F.3d 495, 502 (2d Cir. 2010); United States v. Barrera, 950 F.

Supp. 2d 461, 477 (E.D.N.Y. 2013).

B. Analysis

As discussed supra, the Defendant seeks “[a] bill of

particulars identifying each claim it intends to prove was

fraudulent, including the date of service, the claim number, the

patient’s name, the services and amount billed, the payor, [and]

the amount paid” (hereafter, the “Claim Particulars”). (Support

Memo at 19). The Defendant further requests particulars concerning

“the reason why the Government is alleging the claim is fraudulent”

(hereafter, the “Fraud Particulars”). (Id.) The Court addresses

the two categories of requests below.

1. Request for Claim Particulars

A bill of particulars is unwarranted, where, as here,

the information sought has already been provided to the Defendant

either in the indictment or through discovery. United States v.

Barrett, 153 F. Supp. 3d 552, 573 (E.D.N.Y. 2015) (denying request

for a bill of particulars where “the information provided in the

indictment coupled with the information provided to defendant in

discovery appears more than adequate to permit [defendant] to mount

an effective defense”); United States v. Strawberry, 892 F. Supp.

519, 526 (S.D.N.Y. 1995) (“In deciding whether a bill of

particulars is needed, the court must determine whether the

information sought has been provided elsewhere, such as in other

15
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items provided by discovery, responses made to requests for

particulars, prior proceedings, and the indictment itself.”).

In this instance, in his moving papers Defendant made

clear that he is already in possession of all of the requested

Claim Particulars. In his opening brief, Defendant stated that the

Government produced spreadsheets including “patient demographic

information, date of service, diagnosis code, procedure code,

[and] payment status, among other information.” (Support Memo at

n. 6). Moreover, Defendant’s claim that the “defense is . . . left

to guess as to what specific claims the Government will attempt to

prove” were fraudulent, is unavailing. (Id. at 14). The Government

indicated, both in the Superseding Indictment and its opposition,

its intention to prove at trial that all claims for Covid-19

testing at mobile sites submitted for evaluation and management

visits under CPT codes 99202, 99212, and 99213 were fraudulent.

(S-1 at 8-9; Opp’n at 14). Under these circumstances, a bill of

particulars is not necessary because the Defendant is on notice of

the Government’s allegation that all claims meeting the

aforementioned criteria are fraudulent. United States v. Steiner,

No. 19-CR-0295, 2022 WL 2390943, at *4 (E.D.N.Y. July 1, 2022)

(“[A] bill of particulars is unnecessary to identify which

prescriptions are alleged to be fraudulent as they are all alleged

to be fraudulent.”); United States v. Shteyman, No. 10-CR-0347,

2011 WL 2006291, at *4 (E.D.N.Y. May 23, 2011) (denying request

16
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for bill of particulars where the Government alleged the

defendant’s “only business was to bilk the Medicare program”);

United States v. Rose, No. 19-CR-0789, 2021 WL 2117119, at *15

(S.D.N.Y. May 24, 2021) (noting there is no “needle in a haystack

problem” where the Government contends that all actions were

fraudulent).

The Court recognizes Defendant may have received information

during the course of discovery concerning procedures that do not

relate to COVID-19 visits at mobile sites billed under CPT codes

99202, 99212, and 99213. This does not, however, necessitate a

bill of particulars, because Defendant is nonetheless aware that

he is not charged with fraudulent acts unrelated to Covid-19 visits

billed under such codes. That is precisely what distinguishes the

request for Claim Particulars from the request in United States v.

Bortnovsky. 820 F.2d 572 (2d Cir. 1987).

In Bortnovsky, defendants were indicted on various

charges related to their alleged submission of false claims for

burglary losses. 820 F.2d at 574. In the indictment, the Government

failed to specify the dates of the burglaries or enumerate which

of the documents were falsified. Id. The Second Circuit held

defendants were “hindered in preparing their defense” because they

failed to receive crucial information concerning the dates of the

fake burglaries and the identity of the allegedly fraudulent

documents. Id. The failure to particularize which burglaries were

17
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allegedly fraudulent in effect shifted the burden of proof to the

defendants to prove certain claims of actual burglaries were not

fraudulent. Id. at 575. Unlike the Defendants in Bortnovsky, here,

Defendant knows exactly which claims the Government alleges are

fraudulent. Accordingly, Defendant’s request for Claim Particulars

is DENIED.

2. Request for Fraud Particulars

Notwithstanding the foregoing, the Court finds it appropriate

for the Government to designate which of the alleged fraudulent

claims were “not provided” and which were “medically unnecessary.”

(See S-1 at 9.) Although the Government has provided Defendant

sufficient notice of which claims were alleged to be fraudulent,

(see supra), it has not provided Defendant with sufficient notice

concerning how those claims are fraudulent. United States v. Vaid,

No. 16-CR-0763, 2017 WL 3891695, at *11 (S.D.N.Y. Sept. 5, 2017)

(ordering the Government to identify, by 60 days prior to trial,

“the [allegedly fraudulent] claim and whether the goods or service

was not provided or was medically unnecessary”); United States v.

Nachamie, 91 F. Supp. 2d 565, 574 (S.D.N.Y. 2000)(ordering the

Government to identify which of the “five possible ways the item

or [medical billing] entry is allegedly false”). Accordingly,

Defendant’s request for Fraud Particulars is GRANTED. At least

sixty days before trial, the Government is to provide to Defendant

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a chart containing all claims that the Government intends to prove

were fraudulent, and denoting whether the services were not

provided or were medically unnecessary.

CONCLUSION
Accordingly, it is HEREBY ORDERED, for the reasons stated herein,

Defendant’s: motion to compel the discovery of purported Brady

material is DENIED; motion to quash the Government’s Grand Jury

Subpoena is GRANTED; and motion for a bill of particulars is

GRANTED in part and DENIED in part. The Government is directed to

provide Defendant with a chart consistent with this Memorandum and

Order.

SO ORDERED.

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.

Dated: October 26, 2023
Central Islip, New York

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