Coronavirus deals prosecutors a rare loss with the grand jury out

Federal prosecutors are used to winning their cases, but the coronavirus just hit them with a rare loss.

With the grand jury out of commission because of the pandemic, South Florida prosecutors filed an “information” as a placeholder to charge a person identified only as “B.G.G.” He was accused of receiving $200,000 in fees for purported speaking engagements from a drug distributor in exchange for improperly writing certain prescriptions dating back to 2015.

With the five-year statute of limitations just a few days away from running out, prosecutors could not obtain a grand jury indictment to preserve their case, so they filed the information. It’s a charging document normally agreed to by the prosecution and defense when both sides plan to work out a plea deal without an indictment.

The prosecution’s legal maneuver — deployed in other healthcare, money laundering and fraud cases by the U.S. Attorney’s Office during the pandemic — backfired because B.G.G.’s defense attorneys did not agree to let their client be charged by information.

On Monday, a federal judge rejected the prosecution’s request to dismiss the information after the statute of limitations ran out Aug. 31 and replace it with an indictment by the grand jury, which began meeting again in November after an eight-month hiatus.

U.S. District Judge Donald Middlebrooks, citing constitutional barriers, said that federal prosecutors missed their deadline to seek a grand jury indictment charging B.G.G. with accepting kickbacks so he can’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 20page ruling, one of the few documents unsealed in the case.

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

B.G.G.’s lawyers, David O. Markus and Lauren Doyle, credited Middlebrooks with upholding the “rule of law.” “Even during a global pandemic — especially during a global pandemic — we must make sure to protect our rights in the Constitution,” the lawyers said.

It is unclear whether prosecutors Roger Stefin and Alexandra Chase will appeal Middlebrooks’ ruling. On Tuesday, the U.S. Attorney’s Office said it is considering its options.