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United States v. Daugherty

United States District Court, E.D. Kentucky, Central Division, Lexington

May 3, 2017



          Danny C. Reeves, United States District Judge

         Defendant David Black Daugherty, a former Administrative Law Judge (“ALJ”) with the Social Security Administration (“SSA”), and clinical psychologist Alfred Bradley Adkins were subjects of a Federal Grand Jury Indictment returned on April 1, 2016. [Record No. 1] The defendants were charged with numerous counts related to a conspiracy spanning more than seven years. Along with Eric Conn, Daugherty and Adkins are alleged to have unlawfully deprived the Social Security Administration of an amount in excess of $600, 000, 000.

         Daugherty and Adkins each moved to dismiss the charges against them. Daugherty moved to dismiss the Indictment on the basis of pre-indictment delay. [Record No. 143] Adkins moved to dismiss the indictment on the basis of pre-indictment delay, immunity, and for failure to state an offense. [Record Nos. 132 and 139] The United States filed responses in opposition to the motions. [Record Nos. 148, 149, 155] The motions were referred to United States Magistrate Judge Robert E. Wier for review and issuance of a report pursuant to 28 U.S.C. § 636(b)(1)(B). In three separate Recommended Dispositions, Magistrate Judge Wier analyzed each claim and recommended that they be denied. [Record Nos. 177, 178, 181] Following review, the Court agrees with the recommendations.

         I. Pre-Indictment Delay

         Defendant Daugherty alleges that the Social Security Administration Office of the Inspector General (“OIG”) opened the case that led to his Indictment on May 16, 2011. [Record No. 143 at 2] Defendant Adkins references a Grand Jury proceeding in the Southern District of West Virginia in September of 2012 as the beginning of the alleged delay in bringing this case. [Record No. 132-1 at 2, 6]

         As explained in the Magistrate Judge's Recommended Disposition, obtaining dismissal for pre-indictment delay presents a defendant with a burden that is “nearly insurmountable.” United States v. Rogers, 118 F.3d 466, 477 n.10 (6th Cir 1997). Dismissal under this theory “is warranted only when the defendant shows [1] substantial prejudice to his right to a fair trial and [2] that the delay was an intentional device by the government to gain a tactical advantage.” United States v. Brown, 959 F.2d 63, 66 (6th Cir. 1992) (emphasis in original). The defendants have established neither ground.

         As to the first prong of prejudice, Daugherty and Adkins base their arguments on the death of potential witnesses. The Sixth Circuit recognized in Rogers that “[t]he death of a potential witness during the pre-indictment period may demonstrate the requisite prejudice if the defendant can demonstrate that exculpatory evidence was lost and could not be obtained through other means.” 118 F.3d at 475 (emphasis added). “However, a defendant does not show actual prejudice based on the death of a potential witness if he has not given an indication of what the witness's testimony would have been and whether the substance of the testimony was otherwise available.” Id. Moreover, “[e]ven where a defendant specifies what a deceased witness's testimony would have been, actual prejudice is difficult to prove.” Id.

         Daugherty's Motion identifies four deceased individuals who potentially could have been called as witnessed during trial. However, he fails to show a loss of exculpatory evidence “not [] obtain[able] through other means, ” as Rogers requires. As one example, Daugherty identifies former SSA ALJ Algernon “Al” Tinsley, who died in 2014. [Record No. 143 at 2] According to the defendant, Tinsley gave an interview before his death stating that he had worked with Daugherty and Conn and “had no knowledge of any improper relationship between the two.” [Id.] Tinsley allegedly stated he would never have worked for Conn had he thought Conn was doing anything illegal. [Id.] Further, Tinsley criticized the SSA as “only concerned about the quantity of the work produced by their ALJs, not the quality of that work.” [Id. at 3] This is plainly insufficient to meet the prejudice standard.

         It is far from clear how Tinsley's potential testimony is unique. As the government argues and the Magistrate Judge points out, “simply denying knowledge of an improper relationship between Daugherty and Conn assuredly would be commonplace, especially if [Daugherty] in fact had no improper relationship with Conn[.]” [Record No. 177 at 4] Moreover, there are surely numerous other individuals who could testify regarding the SSA's policies and its treatment of ALJs. Without any showing that Tinsley's testimony is not available through other means, Daugherty has made it nowhere near the mark of showing actual prejudice from the death of Tinsley and loss of his testimony.

         This is also true for the other potential witnesses Daugherty identifies. Dr. Frederick Huffnagle, according to Daugherty, died in late 2010, before the delay period about which the defendants complain. Because Daugherty does not allege that the prosecutorial delay preceded 2011, it is not clear how Dr. Huffnagle could have been a potential witness.[1] Attorney William Redd, a lawyer who practiced before Daugherty and has since had a stroke (the time of which is undisclosed), could have supposedly testified regarding campaign contributions to Daugherty's daughter-a tangential issue and not something alleged to be unique to Redd's knowledge. Finally, Dr. Syed Ikramuddin, a physician who provided reviews of claimants at the request of Conn, died in late 2011. Daugherty admits that “it is unclear what this physician would have said about the propriety of his reviews of claimants[.]” [Record No. 143 at 4] Apart from failing to give any “indication of what the witness's testimony would have been” for Dr. Ikramuddin, Daugherty fails to discuss for each of these individuals “whether the substance of [their] testimony [is] otherwise available.” For reasons distinct or shared among the now-deceased potential witlessness, Daugherty has failed to meet the Rogers test for establishing prejudice.

         Defendant Adkins lists the initials of 16 now-deceased claimants whom he alleges would have been able to “testify as to the thoroughness of [his] mental health evaluation of them.” [Record No. 132-1 at 6] Not only that, but “the [j]ury would have been allowed the opportunity to personally view these witnesses to compare their mental histories to their testimony and the jury would find the criminal allegations against Dr. Adkins are wrong.” [Id.] Adkins also argues that he has lost the opportunity to “request complete mental evaluations” from “other professionals to show his assessments were true and accurate by comparison.” [Id.] Under Rogers, however, Adkins must show that the testimony from these witnesses is not otherwise available or capable of being obtained through other means. As the United States and the Magistrate Judge point out, Adkins evaluated hundreds of claimants for Conn during the course and scope of the charged conspiracy[.]” [Record No. 177 at 10 (quoting Record No. 149 at 14-15)] Therefore, Adkins has hundreds of other potential witnesses through which he may establish the very thing he allegedly would have sought from the sixteen.

         The second prong is whether the pre-indictment delay was intentionally caused by the government to gain a tactical advantage. Brown, 959 F.2d at 66. Neither defendant offers a compelling argument on this point. In fact, Daugherty attempts to shift the burden to the government. He cites an out-of-circuit, outlier case that requires the government to “come forward and provide reasons for its delay” once prejudice has been established. United States v. Sowa, 34 F.3d 447, 451 (7th Cir. 1994) (“once the defendant has proven actual and substantial prejudice, the government must come forward and provide its reasons for the delay”). This is not the law in this circuit. United States v. Schaffer, 586 F.3d 414, 426 (6th Cir. 2009) (“The applicable standard . . . requires [the defendant] to demonstrate that the Government had no valid reason for the delay.”). Sowa is an outlier among circuits (see Record No. 177 at 8 n.5 (surveying cases)) and because Daugherty has failed to establish prejudice, Sowa has no work to do here.

         For his part, Adkins does not actually argue that the government undertook a delay for the purpose of tactical advantage. He only seems to imply it, suggesting “the Government does not have a good reason for such a delay.” [Record No. 132-1 at 7] According to Adkins, the government was aware of the physical condition of the potential witnesses but waited to bring the case: “only after these sixteen witnesses died [] did the Government decide to pass the baton to the Eastern District of Kentucky and prosecute the Defendant.” [Id.] As the Magistrate Judge characterizes it, this a naked assertion with no evidentiary support.

         Because the defendants have failed to establish either prong of the standard for dismissal based upon pre-indictment delay, they ...

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