Defendant’s Motion to Dismiss Superseding Indictment for Prejudicially Compromising 6TH Amendment Rights of Defendant to Speedy Trial — No. 6:21-cr-03016 (Dkt. 48, W.D. Mo.)

Summary

Motion by Patricia Ashton Derges, MD, filed September 1, 2021, asking the court to dismiss her superseding indictment on Sixth Amendment speedy trial grounds. She faces 23 counts including wire fraud, distribution by means of the internet without a valid prescription, false statements and CARES Act fraud, investigated by the FBI and HHS. The motion describes her as an assistant physician who ran the Lift Up Someone Today clinic in Springfield and announced a run for Missouri State Representative for District 140 on March 28, 2020, about a month before she was warned of a federal investigation. It says prosecutors reported on August 5, 2021 that a key government witness had suffered a stroke the day before. She asks for dismissal or the earliest trial date, and for disclosure of prosecutors' internal messages about the witness.

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Cite this document

“Defendant’s Motion to Dismiss Superseding Indictment for Prejudicially Compromising 6TH Amendment Rights of Defendant to Speedy Trial — No. 6:21-cr-03016 (Dkt. 48, W.D. Mo.).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/defendant-s-motion-to-dismiss-superseding-indictment-for-prejudicially-eecdc7dc95/, SHA-256 f66dad51985aea2a041df2ad75d0d18480db1e76754b53ebfc7ce2347cac9dae.

Full text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
WESTERN DIVISION

UNITED STATES OF AMERICA )
)
Plaintiff, )
)
v. ) Case no. 6:21-cr-03016-BCW-1
)
PATRICIA ASHTON DERGES, )
)
Defendant. )

DEFENDANT’S MOTION TO DISMISS SUPERSEDING INDICTMENT FOR
PREJUDICIALLY COMPROMISING 6TH AMENDMENT RIGHTS OF DEFENDANT
TO SPEEDY TRIAL

Defendant, Patricia Ashton Derges, MD (“Defendant”), by and through her counsel,

respectfully moves this Court to dismiss the Superseding Indictment For Prejudicially

Compromising 6th Amendment Rights of Defendant to Speedy Trial.

Introduction

1. Defendant is accused of 23 counts under a Superseding Indictment, comprised of counts

sounding in Wire Fraud, Distribution by Means of the Internet without a Valid Prescription, False

Statements, CARES Acct Fraud, Forfeiture Allegation, and Mandatory Restitution. Investigative

work relating to the charges against Defendant was conducted by Government Agents affiliated

with the Federal Bureau of Investigation (“FBI”) and U.S Department of Health and Human

Services (“HHS”) by and through its Office of Inspector General (“OIG”).

2. Defendant is an MD practicing as a duly registered and licensed Assistant Physician in the

State of Missouri, having commenced her medical school studies at the age of 51; received her

medical doctor degree in her mid-50’s; and having been unable to garner a residency, was unable

to be a duly registered physician, instead qualifying to serve as an MD licensed as an Assistant

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Physician.

3. Defendant is married, the mother of eight children, and grandmother of twenty-four

grandchildren; the recipient of the Jacqueline Kennedy Onassis Award in Washington, DC; and

the recipient of the Springfield, Missouri Humanitarian of the Year Award.

4. After becoming an Assistant Physician, Defendant thereafter opened and operated as an

Assistant Physician a health care clinic, Lift Up Someone Today (“Lift Up”) serving the health

care needs of the poor, indigent, elderly, uninsured, unemployed, mentally vulnerable, street

people and others who simply could not navigate the traditional health care system. Lift Up

operated and served those in need in Springfield, Missouri and subsequently grew to include other

locations in Southwest Missouri.

5. On March 28, 2020, Defendant made public and announced her candidacy as a Republican

running for the Missouri State Representative for District 140, Christian County, running on a

platform involving the sponsoring of a Bill which would allow assistant physicians to become full

physicians after completing a period of five years serving the health care needs of poor, indigent

and elderly patients in rural areas of the State of Missouri underserved by health care providers.

6. The Bill Defendant sought to sponsor was one which garnered strong opposition by

powerful state medical and health care lobbyists in Jefferson City, being the capital of the State of

Missouri.

7. Approximately one month following the announcement of her candidacy, on May 1, 2020

Defendant was warned that a federal investigation had been imitated by the Government which

was purported to target the medical practice of the Defendant. This occurred contemporaneously

with or shortly before Government, by and through its special agents employing their badges to

identify themselves, employing persuasive statement procurement techniques while overtly

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conducting interviews of patients of Defendant and subpoenaed records relating to Defendant’s

practice, causing concern on the part of patients who did not understand how their protected

medical records got in the hands of federal agents.

8. Defendant won the primary election for her State Representative on August 4, 2020.

9. The Government continued with overt investigative undertakings being certain to share

with interviewees the federal criminal investigation of Defendant.

10. The general election for the State Representative position sought by Defendant was held

on November 3, 2020.

11. Defendant was named the winner of the 2020 general election for Missouri State

Representative for District 140, Christian County.

12. On January 6, 2021, Defendant was sworn in and duly seated as the State Representative

for Missouri’s District 140.

13. Shortly after being sworn in, Defendant filed her Bills to attempt to pass legislation

providing for an avenue by which assistant physicians could attain an unrestricted general

practitioner license in the State of Missouri, by and through its Board of Registration for the

Healing Arts..

14. On January 12, 2021, Defendant’s then counsel was contacted by AUSA Randy Eggert

advising the Government had decided to move forward with the indictment of the Defendant.

15. On January 16, 2021, the then 63-year-old Defendant was advised by the Government she

had been charged under a sealed Indictment. When Defendant self-surrendered, despite her

criminal history being comprised of two traffic tickets, was handcuffed and held during processing.

16. Less than one month after being duly sworn in, on February 1, 2021, the Indictment was

unsealed and the Defendant was charged, arraigned and released per pretrial terms of release.

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Virtually immediately, Defendant was stripped of her committee positions as a State

Representative, asked to resign her position as State Representative by the Speaker of the House,

removed from her office and relocated to a converted supply closet in the State Capital of Missouri;

investigated by and through the Missouri Board of Registration for the Healing Arts; and the

Government, by and through its Department of Justice, conducted an hour plus long public press

conference announcing and publicly reviewing the allegations of the Indictment of the Defendant

which garnered national media print, internet and national televised news coverage.

17. On March 26, 2021, a Superseding Indictment was thereafter filed which added counts

sounding in CARES Act fraud, this despite the Government being in possession of the CARES

Act money awarded Defendant’s company.

18. At all times Defendant has maintained her innocence.

19. Defendant spurned, nay rejected, any and all of the multiple offers for plea deals proffered

by the Government.

20. The Defendant did not waive any of her Speedy Trial rights under the 6th Amendment of

the U.S. Constitution.

21. The present case was set for a two-week jury trial to commence on August 16 2021.

Relevant Background

22. Final trial preparation undertakings thereafter commenced. A July 21, 2021 pretrial

conference confirmed the August 16, 2021 trial setting. The Court thereafter designated Judge

Harpool to serve as the trial judge to the present case.

23. The parties collaboratively addressed pretrial exchanges and communicated in an effort

to streamline the trial, identify stipulations to which the parties could agree and other similar

issues.

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24. On August 5, 2021 AUSA Randy Eggert called and advised counsel for Defendant that a

key witness (“Subject Witness”) endorsed by the Government to testify in the present case had

sustained a “stroke” the prior day (being August 4, 2021). The Government further advised the

Government had been in contact with the wife of the Subject Witness who confirmed that the

Subject Witness had been unresponsive on August 4, 2021 but had shown “some improvement”

on August 5, 2021.The Government, by and through AUSA Eggert confirmed the Subject

Witness would not be available to testify at trial on August 16, 2021.

25. The Defendant’s counsel immediately confirmed with the Government that the Subject

Witness was vital to the defense herein and would consent to the continuance of the trial herein.

The Government proceeded to suggest (erroneously) that the Government would be able to

proceed with the counts reliant on the Subject Witness by getting certain written email

correspondence between Defendant and the Subject Witness with a business records affidavit,

some with which the Defendant’s counsel did not concur. The Government suggested the

Government would consent to the continuance of trial herein.

26. On August 5, 202, an informal telephone conference was conducted with the trial judge,

being Judge Harpool, during which the unavailability of the Subject Witness, the reason (as

provided by the Government) for the unavailability of the Subject Witness, and need for

continuance of trial setting were discussed. The trial judge noted the case had not been formally

assignment to him and that a Motion to Continue was required.

27. After further discussion with AUSA Eggert herein, during which the Government

emphasized it preferred the request for a continuance be filed by the Defendant with the noting

that the Government consented to same.

28. Given the foregoing, and based on the unequivocal affirmative representations by the

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Government of the unavailability of the Subject Witness due to the Subject Witness having

sustained a stroke and the fact the Subject Witness would be unavailable to testify at trial, the

Defendant, by and through her counsel, filed a Motion to Continue herein.

29. The Court granted the Motion to Continue and, without consultation with counsel for

Defendant, re-set the present cause for the jury trial to commence in June 2022, being almost 11

months from now.

30. But for the affirmative representations of the Government relative to the health and

condition of the Subject Witness, no Motion to Continue would have been filed.

31. The Defendant herein has not waived her rights to a Speedy Trial under the Sixth

Amendment of the United States Constitution.

32. On August 16, 2021, the date on which the jury trial of the present cause was originally

scheduled to be conducted, Defendant’s counsel issued a letter to AUSAs Kempf and Eggert

expressing concern about the availability of the Subject Witness going forward; noting

specifically that Defendant’s counsel that he was unaware of the specific “condition” of the

Subject Witness and expressing support for the proposition that the deposition of the Subject

Witness should be taken to preserve the testimony of the Subject Witness. Defendant’s counsel

specifically requested the Government consent to the scheduling of the deposition of the Subject

Witness in lieu of live testimony and suggesting dates therefore.

33. On August 20, 2021, AUSA Kempf issued a letter to Defendant’s counsel confirming the

title of a General Counsel associated with the employer of the Subject Witness with whom

AUSA Kempf spoke noting that the General Counsel for the employer of the Subject Witness

was still in the hospital, and further, advised that the Subject Witness is “expected to ‘recover’”;

did not know any further detailed regarding the extent of the anticipated recovery of the Subject

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Witness; and that the Subject Witness was “expected to go through rehabilitation upon discharge

from the hospital.” AUSA Kempf confirmed the Government’s desire to preserve the testimony

of the Subject Witness by means of deposition.

34. On August 23, 2021, Defendant’s counsel issued a letter to AUSA Kempf specifically

requesting the date on which AUSA Kempf spoke with the General Counsel of the employer of

the Subject Witness and the name of said General Counsel.

35. On August 23, 2021, AUSA Kempf sent an email to Defendant’s counsel confirming the

name of the General Counsel of the employer of the Subject Witness and specifically noted that

the date on which AUSA Kempf spoke to the General Counsel of the Subject Witness was

August 20, 2021.

36. Given the foregoing representations of the Government, Defendant’s counsel consulted

with health care professional resources regarding the likely severity of a stroke in the event an

individual remained hospitalized for two weeks following the stroke.

37. Defendant’s counsel procured a report from a private investigator situated in the vicinity

of the Subject Witness who prepared a report suggesting that the Subject Witness was not

hospitalized since at least August 7, 2021 and that the Subject Witness was, in fact, less than

after AUSA Kempf reported to Defendant’s counsel that the Subject Witness was still in the

hospital, driving about his town, shopping at Lowes for garden supplies, performing activities

associated with heavy lifting and transport and off-loading of the purchased garden supplies. A

true and correct copy of the private investigator’s report (replete with photographic images of the

Subject Witness) prepared in this regard is attached hereto, incorporate herein by reference, filed

under seal, and marked Exhibit A.

38. On August 24, 2021, Defendant’s counsel wrote a letter to AUSA Kempf, a courtesy

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copy of which was sent to AUSA Eggert, confirming the substance of the findings of the private

investigator’s findings vis-à-vis the Subject Witness; offering to provide the private

investigator’s report upon receipt of a written request therefore; and noting the wholesale

absence of due diligence on the part of the Government relative to the affirmative representations

made regarding the health and availability of the Subject Witness; and, most notably, confirming

the willingness and availability of the Defendant to explain to the Government the incentive for

obstruction being conducted by the Subject Witness and/or those who spoke to the Government

about the condition of the Subject Witness; assistance in the Government’s undertakings to

assess the obstruction to justice which was a function of affirmative and material misinformation

being provided to the Government by those upon whom the Government negligent relied as a

basis for the Government’s affirmative misrepresentations to the Court and Defendant herein.

39. A true and correct copy of the chain of email correspondence by and between

Defendant’s counsel and AUSA Eggert and AUSA Kempf (as referenced above) is attached

hereto, incorporated herein by reference, filed under seal and marked Exhibit B.

40. On August 30, 2021, AUSA Eggert issued a letter to Defendant’s counsel which

confirmed procurement by the Government of a HIPAA waiver from the Subject Witness;

receipt of medical records pertaining to the Subject Witness; and the review of same. The August

30, 2021 letter from AUSA Eggert set forth determinations by the Government relative to the

Subject Witness following review of the records. The Government’s determinations included: a)

the Subject Witness did not have a stroke, but rather, a “stroke-like event”; that the Subject

Witness had not been hospitalized continuously from the date of the underlying episode on

August 4, 2021 until August 20, 2021 (as expressly stated by AUSA Kempf), but rather, was

released from the hospital on August 6, 2021; the Subject Witness actually was working on

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august 16, 2021, the date on which the trial of the present cause was to commence.

41. At all times pertinent hereto, the Government was the sole portal through which all

communication regarding the availability or purported unavailability of the Subject Witness as

purportedly related to the Government by the wife of the Subject Witness and the General

Counsel of the employer of the Subject Witness.

42. The Defendant relied on the representations of the Government regarding the

unavailability of the Subject Witness.

43. The Defendant had a right to rely on the representations of the Government regarding the

unavailability of the Subject Witness and the Defendant did so believing the representations were

true. The Government had a duty to ensure the accuracy of the representations made by the

Government to the Defendant and the Court were accurate.

44. The standard operating procedure applicable to the Government in this regard is nothing

short of the very reasonable due diligence conducted by the Government after-the-fact to

ascertain the material falsities comprising the representations. But forth the failure of the

Government to discharge its duty in this regard, the Defendant would never have sought to

continue the present cause from its original August 16, 2021 jury trial setting.

45. The Government has failed to share the medical records upon which the Government is

premising its re-characterization of the health of the Subject Witness.

46. The Government has indicated it was going to follow-up with the medical doctors

purporting to have treated/are treating the Subject Witness but have not shared information

arising therefrom.

LEGAL DISCUSSION

47. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public

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trial, by an impartial jury of the state and district wherein the crime shall have been committed,

which district shall have been previously ascertained by law, and to be informed of the nature

and cause of the accusation; to be confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have the assistance of counsel for his

defense." Sixth Amendment, U.S. Constitution.

48. In the present case, the Defendant has at all times been consistent in that she has never

waived her right to a Speedy Trial and was ready, willing and able to proceed with the jury trial

scheduled to commence August 16, 2021.

49. In Baker v. Wingo, 407 U.S. 514 (1972), the Supreme Court held a defendant's

constitutional right to a speedy trial cannot be established by any inflexible rule, but can be

determined only on an ad hoc balancing basis in which the conduct of the prosecution and that of

the defendant are weighed. The court should assess such factors as the length of and reason for

the delay, the defendant's assertion of his right, and prejudice to the defendant. In this case, the

lack of any serious prejudice to petitioner and the fact, as disclosed by the record, that he did not

want a speedy trial outweigh opposing considerations, and compel the conclusion that petitioner

was not deprived of his due process right to a speedy trial. Pp. 407 U. S. 519-536.

50. In affirming the lower Court’s decision, the Supreme Court in Baker, adopted the rule

that the lower Court adopted and used as a factor in determining whether the speedy trial right

had been denied was whether or not [the Defendant] had asserted his right. However, a waiver of

that right could not be presumed, except as to delay caused by Barker himself. The conduct of

both the prosecution and [the Defendant] were to be balanced, taking into

account Barker's assertion of the right, prejudice to Barker, the length of delay, and the reasons

for the delay. Id.

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51. The Supreme Court in Baker provided a detailed breakdown of the analysis to be

conducted by the Court in Speedy Trial Issues.

52. The Supreme Court first noted that "[t]he right to a speedy trial is generically different

from any of the other rights enshrined in the Constitution for the protection of the accused" for

three reasons:

53. First, the Court noted that "there is a societal interest in providing a speedy trial which

exists separate from, and at times in opposition to, the interests of the accused". The Court

commented on the backlog of cases, mainly in urban courts, that often enable defendants to

negotiate a plea for a lesser offense. The Court also noted that persons released on bond had the

opportunity to commit further crimes the longer an accused is free awaiting trial, the more

tempting becomes his opportunity to jump bail and escape", and that "delay between arrest and

punishment may have a detrimental effect on rehabilitation." The Court also noted that if the

accused cannot make bail, that too can make rehabilitation difficult, that a lengthy pre-trial

detention can be costly, and that "society loses wages which might have been earned, and it must

often support families of incarcerated breadwinners." Second, the Court noted that "deprivation

of the right may work to the accused's advantage." As the time between arrest and trial lengthens,

witnesses may become unavailable and/or their memories fade; if the witnesses were for the

prosecution the case may be seriously weakened (as the prosecution has the burden to prove the

defendant guilty beyond a reasonable doubt). Finally, the Court noted that the concept is more

vague than with other rights, in that the Court "cannot definitely say how long is too long in a

system where justice is supposed to be swift but deliberate. Id.The Court then noted that there

were two competing approaches as to how to handle the uncertainty regarding “how long is too

long, neither of which it accepted.Id.

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54. One approach (supported by the American Bar Association) was to "hold that the

Constitution requires a criminal defendant to be offered a trial within a specified time period."

The Court rejected this approach, stating that there was "no constitutional basis for holding that

the speedy trial right can be quantified into a specified number of days or months. Id.

55. The other approach was to "restrict consideration of the right to those cases in which the

accused has demanded a speedy trial." In other words, if the defendant did not specifically

demand a trial, the defendant waived his/her right to appeal the matter. The Court also rejected

this approach, as it considered a speedy trial to be a fundamental right, and quoting Carnley v.

Cochran the Court ruled that "[p]resuming waiver from a silent record is impermissible. The

record must show, or there must be an allegation and evidence which show, that an accused was

offered counsel but intelligently and understandably rejected the offer. Anything less is not

waiver. Id.

56. As a balancing test, the Court adopted four factors to be considered in determining, on a

case-by-case basis, whether a defendant has been prejudiced by the lack of a speedy trial, to wit:

a. the length of delay,

b. the reason for the delay,

c. the time and manner in which the defendant has asserted his right, and

d. the degree of prejudice to the defendant which the delay has caused.

e. Taking these factors into consideration, though, the court agreed that the

period of time between initial arrest and trial – over five years – was

"extraordinary" and that only seven months of the delay was justifiable (the

period of the ex-sheriff's illness).Id.

57. The Defendant is a medical doctor working as an Assistant Physician providing health

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care to poor, indigent, elderly, unemployed, uninsured people in Southwest Missouri, a faith

based professional undertaking which has been increasingly hampered each day during which the

present case pends.

58. The Defendant is a duly elected and seated Missouri State representative and, as such, is

a lawmaker representing Christian County, Missouri residents. Virtually contemporaneously

with the unsealing of the Indictment herein, and each day thereafter, the Defendant has been

relegated to a status in the Missouri State House of Representatives, being a status akin to being

deemed “untouchable.”

59. Since the unsealing of the Indictment herein, the Defendant has been compelled to endure

the humiliation of a cry for her resignation by the Speaker of the House of Representatives and

subjected to having her office relocated from her initial assigned office to an “office” which is a

converted closet.

60. The Defendant was compelled to endure a wildly public press conference conducted by

the Office of the United States Attorney in Springfield, being one which demonized the

Defendant and cast her in a guilty light despite no trial, much less conviction, being garnered.

61. The Defendant has been compelled to endure the intra-familial hardship associated with

explaining to her 8 children and 24 grandchildren that she being federally criminally accused.

62. The Defendant has been compelled to endure expressions of disdain by patients who

were concerned with how the Government got access to their HIPPA protected medical records

with their consent.

63. The platform on which Defendant sought election as a State Representative involved

sponsorship of a Bill design to broaden the scope of health care to Missourians, a Bill which has

been ignored since the unsealing of the Indictment herein.

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64. The Defendant’s husband, a senior lending officer with a federal insured lending

institution has been rendered perpetually tenuous since the unsealing of the Indictment herein.

65. The Defendant’s reputation in the community, one which has included many local, state

and national awards recognizing Defendant’s giving to and caring of the public.

66. The Defendant has been compelled to address angry and threatening words and, in one

case, a threatened lawsuit, from patients who, prior to interaction with federal investigative law

enforcement, were grateful, effusive in their praise of Defendant for her care, were led to believe

by the Government’s agents that they had been wronged by Defendant, through in-person

interviews, re-interviews, and calls with patients of Defendant.

67. The Defendant has been compelled to endure being subjected to gender based insensitive

and inappropriate statements by an AUSA during which the subject AUSA, at the conclusion of

a reverse proffer, suggested to Defendant she take a plea deal so she can “go home and be a

grandmother.”

68. The Defendant has been the subject of not one but two widely reported press releases

issued by the Department of Justice.

69. The Defendant has been forced and compelled to navigate the concurrent State Board of

Registration for the Healing Arts concurrent and collaborative regulatory undertakings designed

to further pressure the Defendant into capitulation herein.

70. With each day of delay, the degree of prejudice inuring to the detriment of the Defendant

as a result of the actions of the Government increases exponentially.

71. The reason for the continuance, and hence delay, of the trial herein was a direct and

proximate and sole result of the Government’s failure to exercise even a modicum of care with

respect to conducting due diligence and drilling down on the veracity of third-parties’ purported

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characterization of the Subject Witness’ unavailability to testify herein.

72. The Government’s representations to the Court and the Defendant, both orally and in

writing, were erroneous.

73. The Defendant has in no way, manner, fashion, or respect contributed to the cause for

delay herein.

74. In short, the Defendant herein is significantly more adversely affected by the nearly 11-

month delay in the conducting of the jury trial herein than one might ever imagine could be

possible.

WHEREFORE, for the foregoing reasons, the Defendant prays this Honorable Court

grant the following relief:

A. Issue an Order dismissing the present cause of action with prejudice;

B. Issue an Order granting the right of the Defendant to depose the Subject Witness to

permit the Defendant to assess her rights relative to alternative prospective courses of

action;

C. Issue an Order directing the Government to release the medical records received and

reviewed to date relative to the health care accorded the Subject Witness for in-

camera inspection and examination by the Court and the Defendant;

D. Issue an Order directing the Government to share all writings and communication of

any and every nature by and between the Subject Witness, the General Counsel of the

employer of the Subject Witness, the wife of the Subject Witness and the Government

relative to any aspect of the availability or unavailability of the Subject Witness to

testify at trial herein with the Court and Defendant; and, in the event of the non-

dismissal of the present cause, the issuance of an Order mandating and directing the

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re-setting of the present cause for trial on the soonest date possible with the dismissal

of those counts relating to the subject matter about which the Subject Witness was

contemplated by the Government to testify;

E. Issue an Order to the Government directing the Government disclosure of internal

memoranda, writings, texts, and emails by and between AUSA Kempf and AUSA

Eggert regarding matters relating to the availability or unavailability of the Subject

Witness for trial herein;

F. Schedule a

G. Such other and further relief as the Court deems just and meet given the unique and

extraordinary circumstances herein.

KODNER WATKINS

By:___/s/ Albert S. Watkins____________
ALBERT S. WATKINS, LC MO#34553
1200 South Big Bend Boulevard
St. Louis, Missouri 63117
Phone: (314) 727-9111
Facsimile: (314) 727-9110 Facsimile
E-Mail: albertswatkins@kwklaw.net

COUNSEL FOR DEFENDANT

CERTIFICATE OF SERVICE

Signature above is also certification that on September 1, 2021 a true and correct copy of the

foregoing was electronically filed with the Clerk of the Court utilizing the CM/ECF system which

will send notification of such filing to all parties of record.

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