South Florida prosecutors may have charged some defendants wrongly during pandemic

When the coronavirus pandemic gripped the nation, the federal court system also largely ground to a halt. Not only did trials get postponed but grand juries could no longer meet to consider indicting criminal defendants.

In South Florida, as idle criminal cases ranging from healthcare to financial fraud piled up, prosecutors did what some critics called an end-run around the grand jury process — normally a critical step before charging defendants. They filed a document known as an “information” to avoid missing the five-year deadline to bring charges under the statute of limitations — but without obtaining the constitutionally required consent of defendants to give up their right to be charged by a grand jury indictment.

Now, a federal appeals court is going to hear oral arguments in January that will spotlight conflicting decisions on this crucial matter by U.S. district court judges in South Florida: Two found that prosecutors in the U.S. Attorney’s Office acted lawfully, but one concluded they did not when they filed an information as a place keeper to stay within the statute of limitations without the approval of the defendant.

Much is riding on the outcome in the 11th U.S. Circuit Court of Appeals — which covers the states of Florida, Georgia and Alabama — because a ruling could decide whether about 10 defendants will still face charges for crimes that both sides acknowledge happened more than five years ago.

“Three judges in our district have written thoughtful opinions addressing an issue brought about by the pandemic and caused by the absence of grand juries,” prominent Miami whitecollar defense attorney Jon Sale told the Miami Herald.

“These decisions are a law professor’s delight,” said Sale, a former federal prosecutor in the Southern Districts of

New York and Florida. “They look to the meaning of words going all the way back to the times of our Founding Fathers. It is up to the Eleventh Circuit to resolve the relationship between the plain meaning of a statute and the Fifth Amendment’s guarantee of the right to be charged by a grand jury within the statute of limitations.”

CONTROVERSY INEVITABLE

The controversy over how some criminal defendants would be charged was perhaps inevitable when the U.S. district court judges shut down the grand jury process in South Florida from late March 2020 to mid-November 2020 during the height of the COVID-19 pandemic. With hundreds of criminal investigations in the pipeline for potential indictments, prosecutors were forced to come up with an alternative way to charge some of them by information because of looming deadlines under the statute of limitations.

Normally, prosecutors pursue that course only after a defendant agrees to cut a plea deal and waive his right to be charged by a grand jury indictment.

One pivotal case involved a person identified in court files only as “B.G.G.” With the grand jury out of commission because of the pandemic, South Florida prosecutors filed an information as a placeholder to accuse

him of receiving $200,000 in kickback fees for purported speaking engagements from a drug distributor in exchange for improperly writing certain prescriptions dating back to 2015.

The prosecution’s legal maneuver backfired because B.G.G.’s defense attorneys did not agree to let their client be charged by information, instead invoking his right under the Fifth Amendment to be charged by indictment.

In January of this year, a federal judge rejected the prosecution’s request to dismiss the information after the statute of limitations ran out in August 2020, and to replace it later with an indictment by the grand jury, which began meeting again that November.

U.S. District Judge Donald Middlebrooks, citing constitutional barriers and federal laws dating back to the aftermath of the American Revolution, said that federal prosecutors Roger Stefin and Alexandra Chase missed their deadline to seek a grand jury indictment, ruling that he couldn’t be charged with a crime.

“I appreciate that the historical moment we are living through, which gave rise to the temporary suspension of grand juries, prevented the government from obtaining indictments in this district from approximately March 26, 2020 to November 17, 2020,” Middlebrooks wrote in his 20-page ruling.

“But our legal system has experienced public emergencies before, and it will experience them again,” Middlebrooks wrote. “Allowing the applicability of our constitutional norms to ebb and flow with the times is not becoming of a democracy under the rule of law.”

Middlebrooks, who was appointed by President

Bill Clinton, noted that Congress was asked by the Justice Department at the outset of the pandemic in March 2020 to suspend the statute of limitations for one year, but lawmakers refused to do so.

CONFLICTING RULINGS

During the depths of the pandemic, with the clock ticking on the statute of limitations, South Florida prosecutors charged an ophthalmologist by information with multiple counts of Medicare fraud, accusing Dr. Lauren Rosecan of improperly diagnosing patients with malignant eye cancer and billing for unnecessary retina treatments at his network of clinics. His lawyers sought to dismiss the information, arguing that the physician had not consented to being charged by information and had not given up his constitutional right to be charged by a grand jury indictment.

In March of this year, U.S. District Judge Rodolfo Ruiz denied Rosecan’s dismissal motion and sided with the prosecutors, citing the specific language of the federal statute of limitations. To wit: “Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.”

In other words, Ruiz concluded that the prosecutors, Stefin and Chase, acted lawfully because they “instituted,” or began, the process of prosecuting the physician by information, saying it is allowable under the statute of limitations dating back to the 1790 Crimes

Act.

The judge cited a 1998 opinion by the 7th U.S. Circuit Court of Appeals, which covers the states of Illinois, Indiana and Wisconsin. Echoing that ruling, Ruiz noted that the law “does not forbid filing an information without a waiver” of indictment from the defendant; “it simply establishes that [the] prosecution may not proceed without a valid waiver” from him.

Ruiz, who was appointed by President Donald Trump, adopted a strict interpretation of the statute, which tracks with the legal theory of “originalism” embraced by the conservative Federalist Society and its late champion, Supreme Court Associate Justice Antonin Scalia.

“The main issue in this case is one of statutory interpretation, which mandates that the Court begin with the text at issue,”

Ruiz wrote in his ninepage ruling.

Under the constraints of the pandemic and a statute of limitations deadline, South Florida prosecutor Laurence Bardfeld charged a Fort Lauderdale area man with wire fraud, accusing him in an information of fleecing $200,000 from a widow who thought she was investing in a shipping company in the Cayman Islands in 2015. Once the grand jury reconvened, the prosecutor asked a federal judge to dismiss the information and then obtained a grand jury indictment.

But a lawyer for the defendant, Joseph A. Sanfilippo, challenged the prosecutor’s two-step maneuver to avoid blowing the statute of limitations deadline during the pandemic.

A THIRD RULING

In November, U.S. District Judge Roy Altman, a former federal prosecutor in Miami who was appointed by Trump to the bench, adopted a position that was similar to Ruiz’s in the Medicare fraud case while delving deeper into the evolution of the statute of limitations.

Altman not only focused on the meaning of the word “institute” as Ruiz did in his decision — that prosecutors were allowed under the 1790 Crimes

Act to initiate the prosecution of Sanfilippo by information without his approval. But Altman also pointed out that the Fifth

Amendment allowing Sanfilippo the right to be charged by indictment was not adopted until the following year.

“When Congress voted on the statute of limitations, in other words, this now-established right to a grand jury proceeding didn’t exist,” Altman wrote in his 23-page decision denying the defendant’s motion to dismiss his indictment. “This chronology only further underscores what the text of the [Crimes] Act has already shown us: that, in 1790, an information could be ‘instituted’ for any non-capital crimes (felonies included).”

Two defense attorneys involved in the Sanfilippo and B.G.G. cases said they believe Judge Middlebrooks’ decision stressing the constitutional right of a defendant to be charged by indictment should prevail over his two colleagues’ strict interpretation of instituting an information under the statute of limitations.

The bottom line is, “Congress could have acted to extend the statute of limitations,” said Sanfilippo’s lawyer, Humberto Dominguez. “It was brought up and they did not do so.”

David O. Markus, the lawyer for B.G.G., said, “We believe that Judge Middlebrooks got this one right and we look forward to arguing it in the 11th Circuit in January.”

Jay Weaver: 305-376-3446, @jayhweaver