Dr. Jesse Haggard was permitted to keep his chosen legal representation in the Applied Pharmacy steroid case after the federal government failed in their attempts to have his attorneys removed from the case. United States Magistrate Judge Sonja Bivins rejected the prosecutors attempt to disqualify David York and Christ Coumanis after the attorneys exposed government deception in court documents. Prosecutors failed to prove that David York participated “personally and substantially” in the Applied Pharmacy investigation as a former U.S. Attorney between 2001 and 2006; government prosecutors decided against producing the documents they said supported their motion to disqualify at a court hearing on the matter.
York disputed the unsubstantiated Government assertion that he “personally approved the Organized Crime Drug Enforcement Task Force Applied Pharmacy investigation” pointing out that the government did not actually submit any evidence supporting this assertion in their memorandum.
York also questioned the legitimacy of the document the government claims would have supported his personal approval of the Applied Pharmacy investigation. York claimed that this document, purportedly bearing his initials, was dated over eight months following his departure from the U.S. Attorney’s Office! Furthermore, even if the document were legitimate, it was NOT the document required for the personal approval of the investigation.
The tactics used by the Government to disqualify Dr. Jesse Haggard’s attorneys appear questionable if not suspect. Certainly, the government was aware that the document was not the one required to approve the investigation. Furthermore, how could they fail to realize that the document was dated eights months after York left the U.S. Attorney’s office? (”Defendant’s Response and Objections to Government’s Motion to Disquality” December 9)
From the record it is apparent that in no way can it be fairly stated that Mr. York “participated personally and substantially” in this matter as asserted by the Government. First, there is no evidence that Dr. Haggard was ever a “target” of the Applied Pharmacy case when Mr. York was United States Attorney. Secondly, there is no evidence that Mr. York was ever briefed on the case while in office. (Exhibit B, ¶6). The document produced to opposing counsel by the Government (but not offered into evidence) that purports to be evidence of Mr. York’s personal approval of the investigation bears what are deemed to be Mr. York’s initials next to his printed name but is dated more than eight months after Mr. York left office, and does not list or identify any individual defendants, much less Dr. Haggard. (Exhibit B, ¶s 10, 11, and 13). Furthermore, the three (3) page document is but an Organized Crime Drug Enforcement Task Force (OCDEFT) “request for designation” form. These forms were regularly sent to the regional OCDETF office asking for official designation as on OCDETF case. Said designation would not prevent the case from moving forward if “official recognition” was denied. In essence, it was purely an administrative document. (Exhibit B, ¶ 12). Of further importance, the document is not one that required Mr. York’s personal approval. As evidenced from the face of the document, it could be signed by the appropriate federal agency head or his designee. (Exhibit B, ¶12).
The Government has presented no evidence that Mr. York requested any documents such as IRS tax returns. No evidence that York requested that any subpoena’s be issued, presented any evidence to a Grand Jury, consulted on strategy, offered advice or in any way directed the prosecution. In fact, Mr. York does not recall giving any advice or direction regarding the investigation or being involved in any filings, discovery or strategy decisions related to the investigation and/or the prosecution in this matter. (Exhibit B, ¶ 5).
As detailed in Exhibit B filed in support of this Response, AUSA Dobbins was responsible for supervision of the appellate and administration sections of the USAO. (Exhibit B, ¶ 8). To the extent she handled any criminal matters, she would have reported to other AUSAs and not Mr. York. (Exhibit B, ¶¶ 7, 8, 9, 11 and 15).
It is apparent from the record and the void of evidence that Mr. York’s participation if any was minimal at best and woefully fails to satisfy the regulatory definition of “participate” or “substantial” which are entitled to due deference by the Courts. Chevron v. Naturalization Resources Defense Counsel, 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984).
The government also failed to convince the court that David York “personally and substantially” participated in the Haggard investigation in the alleged time frame. Haggard’s attorneys pointed out that Dr. Haggard’s alleged involvement in the Applied Pharmacy investigation only occurred in the final months of York’s tenure as U.S. Attorney :
Although the Government asserts a timeframe of March, 2003 through August, 2006 for the conspiracy, Dr. Haggard’s alleged involvement in the distribution and dispensing of Schedule III controlled substances occurred on April 20, 2005, April 22, 2005, April 25, 2005 and May 2, 2005 and involved Co-Defendants A.SAMUEL KELLEY, II, JASON R. KELLEY, and ROBIN K. KELLY. (Doc, 4-3, ¶24, Counts 52-58). Dr. Haggard is also named along with other indicted Co-Defendants in Counts 1, 105, 206 and 207 of the Superseding Indictment. (Doc 4-3).
The government failed to convince the Court that David York received any briefings related to Dr. Haggard’s investigation.
Mr. York has no recollection of participating in any review, evaluation or recommendations regarding any indictments or prosecution nor does he recall having any role in deciding who, if anyone should be prosecuted for the offenses the subject of the indictment including those counts brought against Dr. Haggard while he was U.S. Attorney. (Exhibit B, ¶ 4). Further, Mr. York has no recollection of Dr. Haggard being a target of any investigation while he was U. S. Attorney and first became aware of him after being contacted by his family to represent him in this action. (Exhibit B, ¶ 4). During his tenure as U.S. Attorney, Mr. York does not recall giving any advice or direction to the agents or AUSA Dobbins regarding the investigation. As U.S. Attorney, Mr. York does not remember being involved in any filings, discovery or strategy decisions related to the investigation and/or the prosecution in this matter. To the contrary, the first indictment known to Mr. York arising out of the Applied Pharmacy investigation was filed on September, 25, 2008, under seal, nearly three (3) years after Mr. York left office. (Exhibit B, ¶ 5).
Mr. York has no recollection of having received any substantive briefings regarding the Applied Pharmacy investigation by AUSA Dobbins or any other Asst. U. S. Attorneys or investigators associated with the investigation. If Mr. York received any “briefings” as stated in Brief by the Government, any such “briefings” would have been extremely limited in information, general and non-specific. (Exhibit B, ¶ 6).
During Mr. York’s tenure as U.S. Attorney, he held a weekly management meeting with specific senior staff members, including but not limited to, the Chief of the Criminal Section, the Civil Section Chief, the Law Enforcement Coordinator and the Administrative Officer. These meetings were administrative in nature and did not include specific in-depth case discussions. (Exhibit B, ¶ 7).
In early 2005 the administrative structure of the office was shuffled. AUSA Greg Bordenkircher was assigned the role of First Assistant United States Attorney (FAUSA) and AUSA Donna Dobbbins was re-assigned to supervise the administrative section and appellate division and relocated from the sixth floor to the fourth floor of the United States Attorney’s Office. York has no recollection of AUSA Dobbins having any active criminal cases following her transfer to the Appellate/Administrative Section in early 2005. (Exhibit B, ¶ 8). Following AUSA Bordenkircher’s assumption of the FAUSA role, it would have been the office practice for the criminal section AUSA’s to report to either Bordenkircher or AUSA Gina Vann who was acting as deputy criminal chief. (Exhibit B, ¶ 9). Accordingly, Mr. York was not serving in a supervisory capacity over the Applied Pharmacy investigation.
The government failed to convince the Court that Christ Coumanis was conflicted due to Briskman and Binion’s representation of Dr. Pamela Pyle when Coumanis was an associate attorney at the firm. Haggard’s attorneys point out that Pamela Pyle was never associated to any aspect of Dr. Haggard’s case; the government implication that Pyle would testify against Dr. Haggard in court appeared to be a bluff due to the lack of a connection with Dr. Haggard.
Unknown to Mr. Coumanis or Mr. York, Pamela A. Pyle (“Pyle”) was a un-indicted physician not identified in the Indictment(s) against Dr. Haggard and was allegedly involved in this “illegal drug distribution network” from her medical practice in Myrtle Beach, South Carolina. (Doc. 362-5, pp. 3-4). According to Factual Resume supporting Pyle’s plea, the Government asserted that participants in the conspiracy included APS of Mobile and James Abernathy and Daniel Riedel operating first out of San Diego, California and later from Colorado Springs, Colorado. (Doc. 362-5, p.2). According to the Factual Resume of Pyle, Pyle’s involvement in the distribution occurred as follows:
“ [g]enerally, Abernathy or Riedel would send an email to PYLE that included a list of various drugs and dosages that the customer needed, along with a diagnosis determined by Abernathy. Pyle, who never actually saw any of Abernathy’s customers would prepare a prescription for the drugs recommended by Abernathy, and fax the prescriptions to Abernathy. Next, Abernathy or Riedel would fax the prescriptions to APS. The faxes from Abernathy and Riedel often included specific instructions regarding billing and shipping of the orders. APS, in turn, would fill the order and ship the drugs via Federal Express, sometimes to the customer’s address and sometimes to Abernathy.” (Doc. 362-5, p.3)
The activities of Pyle viz a viz Abernathy and/or Riedel and/or APS did not involve Dr. Haggard and/or Phoenix, Arizona and no mention of Dr. Haggard and/or Phoenix, Arizona is made in the nineteen (19) page Factual Resume of Pyle. (Doc. 363-5).
The government failed to convince the Court that Christ Coumanis had any involvement in Dr. Pamela Pyle’s case that would create a conflict in his representation of Dr. Haggard:
While with B & B, Mr. Coumanis was generally aware that Mr. Briskman was representing someone in a steroid conspiracy case in Federal Court but does not recall learning or viewing any information related to the investigation and/or the present prosecution other than what may have been reported through the media. (Exhibit A, ¶ 6). Mr. Coumanis has no recollection of ever meeting Mr. Briskman’s client or speaking with her by the phone. (Exhibit A, ¶ 5). Further, Mr. Coumanis has no recollection of reviewing any documents while with B & B and during Mr. Briskman’s representation of Pyle and thus, has obtained no confidential or privileged information involved in this prosecution as a result of Mr. Briskman’s representation of Pat Pyle. (Exhibit A, ¶ 5). During his tenure with B & B from 1994 until July, 1, 2009, Mr. Coumanis had the occasion to assist Mr. Briskman in representing some “high profile” clients. When Mr. Coumanis had such an opportunity, he made it his practice to file a Notice of Appearance in the case, especially if it were a federal criminal case. (Exhibit A, ¶ 7). Mr. Coumanis did not file a Notice of Appearance or any other document on behalf of Pyle, who apparently entered her plea agreement on an Information and represented by Mr. Briskman .(Exhibit A, ¶ 8).