In U.S. v. Georges, 2021 WL 3887183 (S.D. Oh. Aug. 30, 2021), a federal court recently dismissed a defendant’s motion to dismiss a superseding indictment, denying her claim of prosecutorial vindictiveness related to multiple alleged violations of the Federal Anti-Kickback Statute. The defendant, Nicole Georges, was a pharmaceutical representative who coordinated speaking arrangements with physicians that allegedly induced increased drug prescriptions.  Ms. Georges was initially indicted on a single count for her participation in a single speaking event, however, the government later filed a superseding incitement alleging an additional violation of the Anti-Kickback Statute after plea negotiations failed twelve days before trial.  Despite her due process claims of prosecutorial vindictiveness, the court allowed the superseding indictment to stand.

The initial indictment against Ms. Georges came in September 2020, in connection with several counts against a physician-defendant. Ms. Georges filed a timely motion to sever which the court granted, thus allowing Ms. Georges to stand trial for a single count. Ms. Georges then waived her right to a jury and a bench trial was scheduled. The defendant’s counsel then filed a motion in limine to prevent the government from alleging new acts. The following day, the Grand Jury returned a superseding incitement alleging two counts against Ms. Georges. Ms. Georges claimed that this superseding incitement was filed as an attempt to circumvent the court’s ruling granting severance and allow evidence to be admitted that would not otherwise be presented to the jury. Ms. Georges also argued that filing the superseding indictment twelve days before trial was per se unreasonable.

Ms. Georges moved the court to dismiss the government’s claim based on a claim of prosecutorial vindictiveness, as a violation of due process. To succeed on such a claim, a defendant must either show “actual vindictiveness” or a “realistic likelihood of vindictiveness.” A realistic likelihood of vindictiveness may be established by showing:

1. the defendant exercised a protected right;
2. the prosecutor had some stake in deterring the exercise of that right; and
3. the prosecutor’s conduct was somehow unreasonable.

The court denied Ms. Georges’ motion, finding that Ms. Georges failed to establish the first element. The court reasoned that Ms. Georges was simply asserting the right to go to trial, and that “in the ‘give-and-take’ of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.” This includes situations where the defendant is fully informed of the true terms of the plea offer, including the risk of a superseding indictment.

Ms. Georges also filed a motion to dismiss the superseding indictment and the original indictment based on statute of limitations grounds, arguing that the superseding indictment impermissibly broadened the original indictment and that the original indictment also covers charges falling outside the statute of limitations. The court also denied this motion, reasoning that the conduct of the second count is substantially the same as the conduct which Ms. Georges was already called upon to defend. Therefore, Ms. Georges was on sufficient notice through the language and allegations of the first indictment.  Furthermore, the court reasoned that the indictments were timely and that although the speaker program itself occurred before the statute of limitations, the clock for illegal kickbacks began running once the physician had received payment, which fell a few days after the statute of limitations expiration. Thus, the indictments were deemed timely.

While the court acknowledged that prosecutorial discretion is “not unfettered,” this case highlights the exceedingly high bar a defendant must reach to prevail on a claim of prosecutorial vindictiveness.  Generally, defendants should consider the risk of superseding indictments during plea negotiations and should not plan to rely on a claim of prosecutorial vindictiveness if such superseding indictments are brought.

Further, this is yet another case where the government has brought an action against participants in the healthcare due to a speaker program. We previously discussed a special fraud alert and cases in this area, including a recent retaliation case. More speaker program scrutiny is likely.