Federal Criminal Rule of Procedure 16 provides that a defendant must disclose to the government any evidence the defendant intends to use in the defendant’s case-in-chief at trial. Recently, prosecutors around the country are interpreting Rule 16 to require an “early” disclosure of discovery from the defense, including disclosure of an intent to proceed with an advice of counsel defense. These demands from the government are being made through motions in limine, in advance of trial. The demands are coupled with a request for sanctions in the form of inability to use evidence that is not disclosed “early”. Interestingly, these demands for early disclosure of defense exhibits and defenses are being made before the government has disclosed its witness and exhibit list. The good news is that some judges are siding with the defense.

For instance, in United States v. Wilkerson, 388 F.Supp.3d 969, 970-76 (E.D. Tenn. 2019) the district court denied the Government’s request to compel defendants to disclose in advance of trial an advice of counsel defense and for sanctions for failure to comply. Wilkerson involved allegations of health care fraud and violations of the Anti-Kickback Statute (AKS) related to certain sales and marketing arrangements involving compounded medications, including pain and wrinkle creams. Wilkerson, (at 971-972.)

Wilkerson not only denied the government’s request, but made clear that the government’s requests violated the United States Constitution:

  • The next presumption underlying the Government’s motion is that if Defendants are going to present an advice of counsel defense, that they ought to be required to make up their minds and tell everyone sometime ahead of trial. But other than a seemingly arbitrary, unspecified sentiment about when a proper defense must be formulated, the Court does not know why a criminal defendant must decide what defense (if any) to pursue in advance of trial or risk losing the option altogether.The Defendants here, for example, could wait and decide what defenses to raise once they see what evidence the Government presents at trial. Or perhaps they believe the Government is, in any event, unable to put on a case that will survive a motion for a directed verdict. If that is the case, it would be untenable—and, most likely, unconstitutional—to require Defendants to turn over potential evidence (most of which is currently privileged) to the Government or risk forfeiting a defense. The source of that concept, whatever it might be, is fundamentally foreign to the adversarial system of criminal justice contemplated by the United States Constitution.

Wilkerson, at 975.
There are also decisions in the Southern District of Florida that support the sentiment in Wilkerson:

  • United States v. Young, 19-cr-60157, (S.D. Fla. November 21, 2019) (D.E. 96). Honorable Rodolfo Ruiz agreeing with the Court in Wilkerson and denying the Government’s request for early disclosure of the advice of counsel defense.
  • United States v. Phillip Esformes, et al., 16-cr-20549-RNS (S.D. Fla. May 24, 2017) (D.E. 366 at 4), Honorable Robert Scola concluded that “the government has not provided neither binding precedent nor persuasive authority for its demand that Defendants be compelled to disclose whether they intend to rely on advice of counsel or good faith defenses at trial or that, absent such disclosure, they be precluded from raising the defenses.”
  • United States v. Pisoni, Case No. 19-CR-20399-Gayles (D.E. 108) (S.D. Fla. Dec. 10, 2015) (“The Court will not conduct a pre-trial hearing to determine the admissibility of evidence related to an advice of counsel defense. However, at trial, a defendant must testify or present other evidence of reliance on the advice of counsel before an attorney/expert may testify related to the advice provided to that defendant.”

The bottom line is that the defense is not in a position to determine whether it will even present a defense case, much less assert an advice of counsel defense, until it has an opportunity to evaluate the government’s case.

Healthcare Fraud Defense Journal




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