Naushad et al v. Ware

Filing 25

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Petitioners Motion to Quash Search Warrants, Subpoenas, and/or to Return Property Seized during the Course of the Execution of an Illegal Search is DENIED. (Doc. No. 1) IT IS FURTHER ORDERED that Petitioners Supplement to Rule 41 Motion is DENIED. (Case No. 1:13CV107AGF, Doc. No. 26; Case No. 4:13CV1408AGF, Doc. No. 10.) All issues having been resolved, the cases are hereby closed. Signed by District Judge Audrey G. Fleissig on 6/2/14. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
IN THE MATTER OF THE SEARCH OF
ADVANCED PAIN CENTERS POPLAR
BLUFF, et al.
ABDUL NAUSHAD, M.D., P.C. a/k/a
ADVANCED PAIN CENTERS, a
Missouri Professional Corporation, and
BILLY JO ANN WILMERT,
Petitioners,
vs.
TIMOTHY WARE AND OTHER
UNKNOWN FEDERAL AGENTS, et al.
Respondents.

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Case No. 1:13CV00107 AGF

and

Case No. 4:13CV01408 AGF

MEMORANDUM AND ORDER
This matter is before the Court for final ruling on the Motion to Quash Search
Warrants, Subpoenas, and/or to Return Property Seized during the Course of the
Execution of an Illegal Search under Rule 41 of the Federal Rules of Criminal Procedure
of Abdul Naushad, M.D., P.C. a/k/a Advanced Pain Centers (“APC”), and Billy Jo Ann
Wilmert (“Petitioners”), and on Petitioners’ Supplement to Motion, pertaining to e-mails
obtained thereafter, filed on March 26, 2014.
I.

Motion to Quash Search Warrants
In their initial motions, Petitioners assert that they are entitled to the return of

certain documents under the provisions of Federal Rule of Criminal Procedure 41
because Respondents Timothy Ware and other unknown federal agents (“the

Government”) violated Petitioners’ rights under the Fourth Amendment by seizing
certain documents while executing search warrants at several of Petitioner Naushad’s
APC clinics.1 Specifically, Petitioners assert that the search warrants fail to describe the
items to be seized with the required specificity and that certain of the seized documents
are beyond the scope of the warrants, or have no relationship to the violations identified
in the search warrants. Petitioners seek the return of, or to exclude as evidence, certain of
the seized documents. For the reasons set forth below, Petitioners’ motion will be
denied.
BACKGROUND
Petitioner Naushad (“Dr. Naushad”) owns and operates several APCs in the Saint
Louis vicinity and in Southeastern Missouri. On June 26, 2013, a team of federal agents,
and other state local law enforcement officers executed search warrants at six of the
APCs, in connection with their investigation of Dr. Naushad and others for suspected
distribution of controlled substances outside the normal scope of medical practice by
unqualified and unauthorized persons, as well as the submission of fraudulent Medicaid
and Medicare claims and the “up-coding” of office visits in violation of 21 U.S.C. §
841(a)(1), 18 U.S.C. § 1347, and 18 U.S.C. § 1035. It is undisputed that the Government

1

In this motion Petitioners also challenged the retention of all seized documents under
Rule 41, and requested reimbursement of copying costs, and challenged the seizure of
incident reports on the ground that they were subject to the attorney client and work
product privileges. The Court addressed the copying costs and privilege issues separately
in an earlier Memorandum and Order. See Case No. 1:13CV107AGF, Doc. No. 38; Case
No. 4:13CV1408AGF, Doc. No. 16.
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acted pursuant to the search warrants but also seized items not explicitly identified in the
warrants, including the incident reports that are the focus of Petitioners’ motion.
An attachment to the affidavits in support of the warrants describes the documents
to be seized as follows:
1. Original and copies of APC patient records, to include but not limited to,
records pertaining to patient histories, assessments, treatment notes,
physician orders, nurses notes, prescriptions, notes/correspondence
showing communication with patients, patients’ families and
representatives, and insurers and third party payers. The patient records to
be seized include, but are not limited to, the records of patients listed on
Attachment C.
2. Original and copies of billing records of patients, to include but not
limited to, claim forms, superbills, encounter forms, explanations of
benefits (EOB) forms, transmittal forms, and documents reflecting
communications with the patients, families and representatives, and
insurers and third party payers concerning payment for services provided
by APC and/or employees and agents of APC and Dr. Naushad.
3. Personnel records for present and former employees . . . of APC . . .
including . . . documents reflecting communication with APC and/or
employees and agents of APC and Dr. Naushad.
Doc. No. 15-1, at 2.
Among the items seized were certain binders containing “incident reports,”
documents routinely prepared by APC employees to record adverse events involving
patients or employees occurring at the clinics. See Case No. 4:13CV1408AGF, Doc. No.
20-1. The generic incident report form used by the APCs includes the type of
information ordinarily maintained by a medical provider in patient records: the patient or
employee name, the physician, the name of the APC employee completing the form, the

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patient’s account number and diagnosis, a narrative description of the incident, the
outcome of the incident; and any harm to the patient or employee. Id. at Doc. No. 20-3.
In support of their motion, Petitioners submitted a log (the “Log”) describing the
contents of each of the incident reports. See id. The Court’s review of the Log indicates
that the incident reports document both employee-related and patient-related incidents.
The patient-related incidents include the following types of events: falls, anxiety,
seizures, chest pain, diabetic reaction, muscle spasms, difficulty breathing, needle sticks,
billing complaints, threatening comments or assaults directed at physicians, the giving of
an injection on the wrong side of the body, the performance of the wrong procedure on a
patient, law enforcement reports that APC patients were using drugs, and the death of a
patient following treatment.
Petitioners assert that the descriptions of patient and billing records set forth in the
warrants are overbroad and lack the specificity required under the Fourth Amendment.
Petitioners further argue that the incident reports seized do not fit the definition of
“patient records” or “billing records” as described in the warrants and are therefore
beyond the scope of the warrants. Finally, Petitioners assert that the patient information
contained in the incident reports is not relevant to the alleged violations of the federal
criminal statutes that are the subject of the search warrants and the Government’s
investigation. For these reasons, Petitioners seek an order requiring the Government to
return the seized incident reports and prohibiting the Government from retaining copies
of those reports.

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In response, the Government has advised the Court that it will voluntarily return
the incident reports2 identified by Bates numbers: 62-92, 209-222, 668-676, and 13511360, which relate solely to injuries to employees or employee discipline for non-patient
related acts. Without conceding that these documents are beyond the scope of the
warrants, the Government states that they will be returned to Petitioners because they do
not advance its investigation.
With respect to the remaining documents at issue, the Government takes the
position that the warrants describe the items to be seized with the required particularity
and that the patient-related incident reports are within the scope of the warrants and
relevant to the underlying investigation.
APPLICABLE LAW
Federal Rule of Criminal Procedure 41
Rule 41(g)3 allows persons whose property has been seized by the government to
petition a district court for the return of the confiscated property. Rule 41(g) provides as
follows:
(g) Motion to Return Property. A person aggrieved by the unlawful
search or seizure of property or by the deprivation of property may move
for the property’s return. . . . The court must receive evidence on any
2

The Government acknowledges some delay in the return of these incident reports
and attributes the delay to the fact that the Government counsel assigned to the
prosecution team did not obtain access to the incident reports until the Government
requested and the Court permitted such access during an April 9, 2014 telephone
conference with the parties.
3
Prior to amendments enacted in 2002, the substance of Rule 41(g) was contained in
former Rule 41(e). See United States v. Copeman, 458 F.3d 1070, 1071 n. 1 (10th Cir.
2006) (noting that “[w]hat was formerly Rule 41(e) is now Rule 41(g), with only stylistic
changes”).
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factual issue necessary to decide the motion. If it grants the motion, the
court must return the property to the movant, but may impose reasonable
conditions to protect access to the property and its use in later proceedings.
See Fed. R. Crim. P. 41(g).
Prior to its amendment in 1989, Rule 41(g) permitted the return of property or
documents only based on an illegal search and seizure. Further, the Rule then provided
that if return were granted, the property would be restored and would “not be admissible
in evidence at any hearing or trial.” In 1989, the provision requiring suppression was
deleted. See Bennett v. United States, No. 12—61499—Civ, 2013 WL 3821625, at *9-10
(S.D. Fla. July 23, 2013). The Advisory Committee explained:
The amendment deletes language dating from 1944 stating that
evidence shall not be admissible at a hearing or trial if the court grants the
motion to return property under [41(g)]. This language has not kept pace
with the development of the exclusionary rule doctrine and is currently only
confusing. . . . [Rule 41(g)] is not intended to deny the United States the
use of evidence permitted by the fourth amendment and federal statutes,
even if that evidence might have been unlawfully seized. . . . Thus the
exclusionary provision is deleted, and the scope of the exclusionary rule is
reserved for judicial decisions.
Fed. R. Crim. P. 41(g), Advisory Committee Notes to the 1989 amendments.
Rule 41(g) compels a district court to afford such persons an opportunity to submit
evidence in order to demonstrate that they are lawfully entitled to the challenged
property. United States v. Bailey, 700 F.3d 1149, 1151 (8th Cir. 2012). Because an order
providing for the return of property under Rule 41(g) is an equitable remedy, it “is
available only when there is no adequate remedy at law and the equities favor the
exercise of jurisdiction.” De Almeida v. United States, 459 F.3d 377, 382 (2d Cir. 2006);
see also United States v. Zaleski, Doc Nos. 11-660-cr(L), 11-1888-cr(CON), 2012 WL
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2866301, at *92 (2d Cir. July 13, 2012); United States v. Shigemura, 664 F.3d 310, 311
(10th Cir. 2011); In re Search of 4801 Fyler Ave., 879 F.2d 385, 387 (8th Cir. 1988)
(recognizing that pre-indictment, a motion to return and suppress is “‘more properly
considered as a suit in equity rather than one under the Rules of Criminal Procedure.’”)
(quoting Richey v. Smith, 515 F.2d 1239, 1245 (5th Cir. 1975)).
No standard is set forth in [Rule 41(g)] to govern the determination
of whether property should be returned to a person aggrieved either by an
unlawful seizure or by deprivation of the property. The fourth amendment
protects people from unreasonable seizures as well as unreasonable
searches, United States v. Place, 462 U.S. 696, 701 (1983), and
reasonableness under all of the circumstances must be the test when a
person seeks to obtain the return of property. If the United States has a
need for the property in an investigation or prosecution, its retention of
the property generally is reasonable. But, if the United States’ legitimate
interests can be satisfied even if the property is returned, continued
retention of the property would become unreasonable.”
Fed. R. Crim. P. 41 Advisory Committee’s Note to 1989 Amendments (emphasis
supplied). Therefore, during the investigatory phase of a criminal matter, the lawfulness
of the underlying search and seizure for purposes of the Fourth Amendment is pertinent
to, but not determinative of a Rule 41(g) claimant’s right to return of the property. Cf.
United States v. Smith, 329 Fed. App’x. 682, 683 (8th Cir. 2009) (holding that the
lawfulness of the underlying search and seizure was not determinative of a defendant’s
right to return of the disputed property); United States v. Embrey, 50 Fed. App’x. 804,
805 (8th Cir. 2002) (unpublished per curiam) (same). However, once criminal
proceedings have terminated, “the person from whom the property was seized is
presumed to have a right to its return, and the government must demonstrate that it has a

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legitimate reason to retain the property.” Shigemura, 664 F.3d at 311 (internal quotation
omitted).
Rule 41(h) provides an additional remedy stating that “[a] defendant may move to
suppress evidence in the court where the trial will occur” in accordance with the
provisions of Rule 12. Fed. R. Crim. P. 41(h).
Fourth Amendment Principles
The Fourth Amendment requires that a warrant “particularly describ[e] the . . .
things to be seized.” U.S. Const. amend. IV. This requirement precludes the issuance of
a warrant that permits a ‘“general, exploratory rummaging in a person’s belongings.’”
United States v. Kail, 804 F.2d 441, 444-45 (8th Cir. 1986) (quoting Coolidge v. New
Hampshire, 403 U.S. 443, 467 (1971)). However, the particularity requirement has long
been construed “to provide a practical margin of flexibility” regarding “the degree of
specificity required in search warrant descriptions.” United States v. Porter, 831 F.2d
760, 764 (8th Cir. 1987).
Specifically, under Eighth Circuit law, “the standard used to determine the
adequacy of the warrant description is one of ‘practical accuracy,’” such that “the degree
of specificity may necessarily vary according to the circumstances and type of items
involved.” Id. (quoting United States v. Johnson, 541 F.2d 1311, 1313 & 1314 (8th Cir.
1976)). “To satisfy the particularity requirement of the fourth amendment, the warrant
must be sufficiently definite to enable the searching officers to identify the property
authorized to be seized.” United States v. Summage, 481 F.3d 1075, 1079 (8th Cir.
2007). “Where the precise identity of goods cannot be ascertained at the time the warrant
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is issued, naming only the generic class of items will suffice . . . .” United States v.
Dennis, 625 F.2d 782, 792 (8th Cir. 1980) (recognizing that “[t]he particularity
requirement ‘is a standard of practical accuracy rather than a hypertechnical one’”)
(internal quotation omitted); see also United States v. Thurman, 625 F.3d 1053, 1057 (8th
Cir. 2010) (quoting United States v. Peters, 92 F.3d 768, 769-70 (8th Cir. 1996)), cert.
denied, 563 U.S.

, 131 S. Ct. 1803 (2011). In addition, the Court notes that

“whether a warrant fails the particularity requirement cannot be decided in a vacuum.
The court will base its determination on such factors as the purpose for which the warrant
was issued, the nature of the items to which it is directed, and the total circumstances
surrounding the case.” United States v. Fiorito, 640 F.3d 338, 346 (8th Cir. 2011)
(quoting Milliman v. Minnesota, 774 F.2d 247, 250 (8th Cir. 1985) (internal citation
omitted)); see also Andresen v. Maryland, 427 U.S. 463, 480 n. 10 (1976).
Finally, the Fourth Amendment requirement that the documents seized fall within
the scope of the warrant and relate to the subject matter of the investigation are
interpreted with similar practicality. See, e.g., United States v. Hager, 710 F.3d 830, 835
(8th Cir. 2013) (discussing whether agents acted within the scope of a warrant and
holding that “[t]he broad language of the warrant must be given a practical, rather than a
hypertechnical, interpretation that is cabined by the purpose for which it issued”).
DISCUSSION
Rule 41
To the extent Petitioners’ request falls within the scope of Rule 41(g), the Court
finds Petitioners are not entitled to relief. Under Rule 41(g) the Government’s retention
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of the seized documents pending the conclusion of its investigation or a related criminal
action is presumed reasonable. Petitioners have offered neither evidence nor argument
sufficient to persuade the Court that seizure of the disputed incident reports was
unreasonable.
Petitioners also essentially seek suppression, as they seek to require the
Government to return all copies of the documents and to prevent their use by the
Government for any purpose. It is not entirely clear, however, the extent to which Rule
41(g) provides a basis for suppression pre-indictment. “The Circuit Courts that have
addressed the issue are divided, with more Courts finding that the 1989 amendments did
not foreclose the possibility that complete suppression can be ordered under the rule.”
Bennett, 2013 WL 3821625, at *11 (citing cases). Assuming In re Search of 4801 Fyler
Ave. remains good law, and that the Eighth Circuit sides with the majority of Circuits, the
question continues to be governed by equitable considerations and the factors cited in
Pieper v. United States, 604 F.2d 1131, 1133 (8th Cir. 1979) and Richey v. Smith, 515
F.2d 1239 (5th Cir. 1975). See In re Search of 4801 Fyler Ave., 879 F.2d at 387-88;
Bennett, 2013 WL 3821625, at *11-12. Having carefully considered Petitioners’
arguments, as well as the applicable equitable principles, Petitioners’ request to prevent
any use of the documents fails.
As discussed below, Petitioners have not demonstrated that the agents acted in
callous disregard of Petitioners’ Fourth Amendment rights. Further, Petitioners have not
been irreparably harmed. The Government has agreed to return some of the disputed
incident reports immediately, Petitioners have been provided copies of all retained
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documents, and Petitioners may seek the return of the remainder of the documents at the
conclusion of the investigation or criminal proceeding. The mere fact that Petitioners
may face criminal indictment is not sufficient to constitute irreparable harm. In Re
Search of 4801 Fyler, 879 F.2d at 389.
To the extent that Petitioners seek suppression of the seized incident reports solely
on the ground that the search and seizure failed to comport with the requirements of the
Fourth Amendment, the Court concludes that they are without standing to mount such a
challenge. Unlike Rule 41(g), which applies to “person[s] aggrieved,” Rule 41(h) applies
only to “defendant[s].” Petitioners who are under investigation but have not been
indicted or charged with any criminal wrongdoing related to the investigation, do not
therefore satisfy the requirements of the Rule for purposes of suppression.
For the reasons stated above, the Court concludes that the motion to quash lacks
merit. The Court believes that Petitioners’ further arguments, regarding the scope of the
warrant and lack of particularity, are arguments Petitioners may assert under Fed. R.
Crim. P. 12, in any criminal proceeding. However, even if these arguments provided a
basis for relief pre-indictment, for the reasons discussed below, the Court finds
Petitioners’ contentions lack merit.
The Fourth Amendment Concerns
A. Particularity
Upon review of the descriptions of the documents to be seized, the Court
concludes that they are sufficiently specific to meet the particularity requirement of the
Fourth Amendment. The broad categories of patient, billing, and personnel records
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“must be read in the context of the specific list that follows” and the purpose of the
investigation. Fiorito, 640 F.3d at 347. Considering similarly broad descriptions in light
of these factors, numerous Eighth Circuit decisions uphold seizures predicated on
warrants describing only general categories of items to be seized. See, e.g., United States
v. Horn, 187 F.3d 781, 788 (8th Cir. 1999) (holding that “the words ‘[r]ecords,
documents, receipts . . .’ were sufficiently particular to preclude the exercise of any
illegal discretion by the executing officers.”); Marvin v. United States, 732 F.2d 669, 673
(8th Cir. 1984) (holding that the phrase “[p]atient cards, also known as ledgers, and
patient medical folders . . . and other books and records that reflect the income and
expenses . . . from the operation of the Midtown Clinic” met the particularity
requirement); Dennis, 625 F.2d at 792 (holding that search warrant for “certain books and
records” relating to crimes was not overbroad and met the specificity requirement
because exact identity of evidence to be seized was not known at time of issuance);
Johnson, 541 F.2d at 1331 (holding that the phrase, including “[a]ny and all address
and/or telephone books and records, reflecting names, addresses, and/or telephone
numbers, including but not limited to, paper and computer formats” met the specificity
requirement for the seizure of evidence related to drug trafficking).
Moreover, in a case such as this, involving allegations that an entire business is
operating in a fraudulent manner, a requirement that a warrant explicitly identify all of
the records or even the types of records to be seized would be unreasonable and contrary
to the “practical accuracy” standard espoused by the Eighth Circuit. Porter, 831 F.2d at
764.
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B. Scope of the Warrant
Petitioners also argue that the seizure of the incident reports exceeds the scope of
the warrant because the incident reports are not explicitly referenced in the list of items to
be seized and do not relate to the provision of patient care. The Court concludes,
however, that the incident reports were properly seized as “patient records,” “billing
records,” or “personnel records” because ‘“[t]he failure of the warrant to anticipate the
precise form in which [the information] would appear is not fatal.’” United States v.
Sherman, 372 Fed. App’x 668, at *6 (8th Cir. Apr. 14, 2010) (quoting United States v.
Lowe, 50 F.3d 604, 607 (8th Cir.1995)).
The patient-related incident reports relate to APC patients and were maintained at
each clinic to document information related to the patient’s care. Further, these
documents are reasonably included with the category of “patient records, to include but
not limited to . . . notes/correspondence showing communications with patients.” Neither
the designation of these particular patient records as “incident reports” nor the fact that
they were maintained in a binder separate and apart from other patient records takes them
out of the general category of patient records or places them beyond the scope of the
warrant. See id.; see also United States v. Kail, 804 F.2d at 445 (8th Cir. 1986)
(concluding, where there was probable cause to believe that “fraud permeated the entire
business operation,” that seizure of almost all of the target’s business records did not
exceed the scope of the warrant because “it would not be possible through a more
particular description to separate those business records that would be evidence of fraud
from those that would not”). In light of these precedents, the Court concludes that the
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incident reports referring to events involving APC patients are “patient and billing
records” within the scope of the warrant.
C. Relevance
The Court does not agree with Petitioners’ contention that the seizure of the
incident reports was improper because they are not relevant to the offenses referenced in
the warrants. The incident reports bear a reasonable relationship to an investigation of
those offenses because a reasonable agent could determine that they might shed light on
prescribing and billing practices and the administration of prescription drugs by
unauthorized personnel at the clinics. See Sherman, 372 Fed. App’x. 668, at *6.
CONCLUSION
In the event that Petitioners are charged with a criminal offense, they may
challenge the evidentiary relevance of specific incident reports or otherwise seek
suppression under the Federal Rules of Criminal Procedure. At this juncture, however,
they have not shown their entitlement to relief under Rule 41 or equitable principles, or
under the Fourth Amendment.
II.

Petitioners’ Supplement to Motion
After the hearings and all briefs were completed on Petitioners’ Rule 41 motions

related to the search warrants executed on June 26, 2013, Petitioners filed a Supplement
to their motion, related to an e-mail dated August 14, 2013, from Mary Dolan to Brittany
Wideman, that had been obtained by the investigating agents. Petitioners learned the
investigators had obtained the email after an investigating agent contacted Dolan, who
was then no longer employed by Petitioners, and asked to discuss it with her. Petitioners
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attached affidavits from Dolan and Wideman attesting that they had not provided it to the
investigators. Noting that the email could not have been covered by the original
warrants, as it was created after the warrants were executed, Petitioners speculate that the
Government must have “obtained the email illegally through either hacking into
petitioner’s computer system or otherwise illegally accessing petitioner’s employees’
email accounts.” Case No. 1:13cv00107 AGF, Doc. No. 26, at 2. They seek the return of
all copies of petitioners’ employee’s emails currently in the possession of the
Government. Id. at 3.
In their response to Petitioners’ supplemental motion, Respondents state that on
September 16, 2013, Magistrate Judge Frederick R. Buckles approved a warrant for the email account of Wideman stored and controlled by Google, and obtained the e-email
through proper execution of that warrant. Petitioners’ did not file any reply or offer
anything to dispute Respondents’ assertion.
As such, the Court finds no basis to require a return of the e-mails obtained as a
result of the September 16, 2013 search warrant or for any further proceedings related to
the supplemental motion. Petitioners offer nothing beyond rank speculation, that appears
to be unfounded, for contending that the e-mail was obtained unlawfully. And the
magistrate judge’s determination of probable cause is entitled to deference.
Further, for reasons similar to those discussed above, Petitioners’ have not met
their burden to demonstrate that they are entitled to a return of any e-mails obtained
under Rule 41 or any applicable equitable principles. Petitioners do not allege that their
own access to this data was in any manner infringed, and they will have a full and fair
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opportunity to contest the Government’s use of any documents obtained as a result of the
September 16, 2013 search warrant in any future criminal proceeding, through a motion
to suppress. See In re Search of 4801 Fyler Ave., 879 F.2d at 389. It simply cannot be
that Rule 41(g) was intended to be used in a manner such as this, to try and force
investigators to disclose and justify each step of their investigation as it is taken.
Accordingly, Petitioners’ Supplement to the Rule 41 Motion, related to e-mails,
shall be denied.
Accordingly,
IT IS HEREBY ORDERED that Petitioners’ Motion to Quash Search Warrants,
Subpoenas, and/or to Return Property Seized during the Course of the Execution of an
Illegal Search is DENIED. (Doc. No. 1)
IT IS FURTHER ORDERED that Petitioners’ Supplement to Rule 41 Motion is
DENIED. (Case No. 1:13CV107AGF, Doc. No. 26; Case No. 4:13CV1408AGF, Doc.
No. 10.)
All issues having been resolved, the cases are hereby closed.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 2nd day of June, 2014.

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