Monday, January 23, 2017

The government is accused (again!) of invading the defense camp.

This one deals with the high profile case of Dr. Salomon Melgen, who is represented by Kirk Ogrosky and Matt Menchel. I'll relate the facts as detailed in the motion, which is being heard by Judge Marra:

The government executed a search warrant on Dr. Melgen’s office back in February of 2013. According to the motion, Dr. Melgen then retained a Medicare billing consultant, Ann Rose, to assist them in the representation.  Nevertheless, the government subpoenaed Dr. Melgen for records related to Ann Rose.  

Dr. Melgen’s lawyers informed the government that it had retained Rose and asked the government if it had issued a Grand Jury subpoena directly to her.  The government responded that it had issued a subpoena, but that it was prior to learning that Rose had been retained by Dr. Melgen’s lawyers.  So, Dr. Melgen’s lawyers requested that they be allowed to participate to protect the privilege.  The government did not respond and went forward without allowing Dr. Melgen’s lawyers to participate.  An indictment was returned in April of 2015.

Post indictment, Dr. Melgen learned that the prosecution had issued another Grand Jury subpoena to Ms. Rose a month after his lawyers had informed the government that she was working for them as a consultant on the case.  Ms. Rose had complied with the subpoena and was interviewed by the prosecution.  Dr. Melgen’s attorneys were never told of the interview, any grand jury appearance, or allowed to lodge any objections.  And, the government apparently has not provided any discovery to Dr. Melgen related to what happened.

On December 6, 2016, Dr. Melgen filed a motion in limine seeking discovery from SDFL and an proffer outside the presence of the jury if the government seeks to call their case consultant at trial.  This month, the prosecution responded by telling Judge Marra that they didn’t ask any questions about the consulting engagement and Ms. Rose didn’t reveal any privileged material.  Dr. Melgen’s reply stated the obvious: how would Dr. Melgen or his attorneys ever know what happen or how to object without any discovery? 

If true, how can the government justify issuing a subpoena to an attorney’s consultant with knowledge that the consultant is part of the defense team without even giving the lawyers an opportunity to object?

Here's the motion, response, and the reply. Should be interesting to see how this plays out.


Anonymous said...

What kind of consultant doesn't tell the team...twice?

The tiny lizzard part of my brain says that this consultant was a government snitch (wannabe whistle-blower) all along. Just my conspiracy theory.

Too bad they don't have real lawyers who owe no allegiance to the old office defending them.

Literati said...

The "reply" link sends you to the original motion.

Anonymous said...

So, hiring "reasonably foreseeable" or known government witnesses as defense consultants/experts is ethical lawyering? There were no other experts available?

Looks more like buying testimony and obstruction of justice to preclude testimony about pre-hire evidence.

Anonymous said...

Everyone knows this office is dirty.