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United States v. Harrell

United States District Court, N.D. Georgia, Atlanta Division

November 9, 2018

UNITED STATES OF AMERICA
v.
MATTHEW HARRELL

          MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

          RUSSELL G. VINEYARD UNITED STATES MAGISTRATE JUDGE.

         Defendant Matthew Harrell (“Harrell”) is charged in a thirty-two count indictment, along with three co-defendants, with conspiracy to commit healthcare fraud, in violation of 18 U.S.C. § 1349; healthcare fraud, in violation of 18 U.S.C. § 1347; and aggravated identity theft, in violation of 18 U.S.C. § 1028A. [Doc. 1].[1]Harrell has filed a pretrial motion for a Kastigar hearing, [2] or alternatively, to dismiss the indictment, [Doc. 65], which the government opposes, [Doc. 75].[3] Harrell has filed a reply in support of his motion, [Doc. 78], as well as a supplemental motion, [Doc. 99], and for the reasons that follow, it is RECOMMENDED that Harrell's motion for a Kastigar hearing, or alternatively, to dismiss the indictment, [Doc. 65], and his supplemental motion, [Doc. 99], be DENIED.

         I. STATEMENT OF FACTS

         Following an investigation by the Georgia Medicaid Fraud Control Unit that began in 2013, Harrell was indicted in Cobb County Superior Court on November 11, 2014, for Medicaid fraud with respect to his business, Revive Athletics, Inc. (“Revive-GA”). See [Doc. 65 at 1-2]. Around this time, federal authorities were also investigating Harrell and Revive-GA. [Id. at 2]. On June 19, 2015, an Assistant United States Attorney for the Northern District of Georgia sent Harrell's counsel a proffer letter (the “Proffer Agreement”), which states, in relevant part:

Your client, [] Harrell, is scheduled for a proffer for the purpose of providing information that he may have regarding possible violations of law. This is not a cooperation agreement and this agreement does not apply to any previous statements your client may have made to law enforcement officers. The following terms will govern any proffer session with your client:
1. The United States Attorney's Office for the Northern District of Georgia (the Government) requires completely truthful statements of your client. Anything related to the Government by you or your client during the proffer cannot and will not be used against him in the grand jury or in the Government's case-in-chief. No. statements made by your client during the proffer will be used against your client to increase his offense level pursuant to the Sentencing Guidelines . . . in the pending case. Crimes of violence are excluded from the terms of this paragraph.
2. The Government is completely free to pursue any and all investigative leads derived in any way from the proffer, which could result in the acquisition of evidence admissible against your client in subsequent proceedings. If your client subsequently takes a position in any legal proceeding that is inconsistent with the proffer-whether in pleadings, oral argument, witness testimony, documentary evidence, questioning of witnesses, or any other manner- the Government may use your client's proffer statements, and all evidence obtained directly or indirectly therefrom in any responsive pleading and argument, and for cross-examination, impeachment, or rebuttal evidence. The Government may also use statements made by your client in the proffer session(s) to respond to arguments made or issues raised sua sponte by the Magistrate or District Court. If a plea/cooperation agreement is later reached with your client, and your client violates that plea/cooperation agreement, the United States may use your client's proffer statements during any stage of any prosecution related to the violation of the plea/cooperation agreement including, but not limited to, proceedings before the grand jury, and during all phases of any resulting trial, including the Government's case-in-chief.
3. If your client willfully makes false or misleading statements during the proffer, your client may be charged with perjury, obstruction of justice, making false statements, or with violating any other applicable criminal statute relating to the giving of false statements. In such prosecution the Government may use your client's proffer statements, and all evidence obtained directly or indirectly therefrom. Furthermore, in such prosecution, your client's proffer statements may be used at any stage of the prosecution, including, but not limited to, proceedings before the grand jury, and during all phases of any resulting trial, including the Government's case-in-chief.
4. In agreeing to provide a proffer to the government, your client agrees that the use of any statements or information provided by your client shall be governed by the terms and conditions set forth in this letter agreement. Furthermore, your client waives any right to challenge the admissibility of any such statements or information under Fed. R. Crim. P. 11 and Fed.R.Evid. 410.
5. If this Office receives a request from another prosecutor's office for access to information obtained pursuant to this Proffer Agreement, this Office may furnish such information but will do so only on the condition that the requesting office honor the provisions of this Agreement.
6. The proffer is to be provided for the purpose of allowing the Government to assess the credibility and value of the evidence and possible testimony that we believe your client can provide. Please understand in this regard that at this juncture your client is not entitled to any specific consideration regarding the disposition of charges currently pending against him solely because he will have given this proffer.
7. No promises, agreements, or conditions have been entered into other than those set forth in this agreement, and none will be entered into unless memorialized in writing and signed by all parties. This agreement supersedes any prior promises, agreements or conditions between the parties.

[Doc. 75-1 at 1-2 (emphasis omitted)].

         Pursuant to the Proffer Agreement, Harrell and his counsel met with law enforcement agents on June 26, 2015, for a proffer session. [Doc. 65 at 2]. The Cobb County Superior Court subsequently dismissed the indictment against Harrell on October 9, 2015, and a second proffer session with Harrell and his counsel occurred on October 30, 2015. [Id.; Doc. 65-2].[4] On June 21, 2016, Harrell was indicted along with seven co-defendants in the Northern District of Georgia on charges relating to conspiracy to commit health care fraud with respect to Jode Counseling and Training Services, LLC (“Jode”). See United States v. Shannon, Criminal No. 1:16-cr-00218-LMM-RGV, at [Doc. 1] (N.D.Ga. June 21, 2016). On April 10, 2017, the government dismissed the charges against Harrell in that indictment, see id. at [Doc. 155], and on November 7, 2017, a grand jury returned ...


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