BY KEN LITTLE
A federal judge granted a motion this week filed by the government prohibiting "unlawfully intercepted oral communications" at the trial of Dr. Anindya K. Sen.
Sen and his wife, Patricia Posey Sen, were indicted in June by a federal grand jury on charges connected with the alleged sale and administration of misbranded drugs.
U.S. Magistrate Judge Dennis Inman ruled on the motion, which maintained that recorded statements made by employees of the Sens' East Tennessee Cancer & Blood Center (ETCBC) in Greeneville, and recordings of two federal agents who interviewed them April 5 in a clinic break room, should be banned from the trial.
There are video cameras throughout the clinic, including one in the break room, and four signs indicating that the interior of the building was "under surveillance."
"Unbeknownst to the agents and the interviewed employees, the cameras not only were able to capture images. They were also equipped with audio recording devices," the government motion said.
The motion was filed when the government learned that the interviews had been recorded, the motion said.
"With two exceptions, every interview was unlawfully intercepted, since neither the interviewing agents nor the employees consented to the interception," Inman wrote.
The exceptions are the interviews of Patricia Sen and Larry Edgell, assistant office manager.
A draft of the interview conducted by Special Agent Robert West, of the Food and Drug Administration (FDA), does not accurately reflect the content of the interviews as recorded on tape, Anindya Sen defense lawyers Edward M. Yarbrough and J. Alex Little argued in a recent response to the government motion.
Lawyers for the Sens argued at an Oct. 11 motions hearing that since the interviews were conducted on their premises, "neither the agents nor the employees had any reasonable expectation of privacy."
'RIGHT TO REFUSE'
"The defendants presumably had the right to refuse to allow any interviews to occur on their premises, in which event the agents and the employees would have been forced to find another location.
"But the defendants allowed the interviews to take place in their building, and the employees especially were not shorn of their expectation of privacy solely on that account," Inman wrote in the order.
Inman cited an example in the order.
"Could the defendants blithely assert that they had the right to intercept and record the conversations between two of their employees that involved personal and highly confidential matters, such as domestic problems?" Inman wrote.
"If the defendants could record the conversations between the agents and the employees regarding the criminal investigation simply because the interviews occurred on their premises, the defendants could record any conversation occurring on their premises, regardless of the participants or the nature of the conversations."
Inman agreed with defense lawyers that a verbatim recording of the interviews would be more accurate than agents' notes.
"But that in no way can justify a violation of the (law)," he wrote.
The judge granted the motion with one "critical qualification."
"Everyone knows what is in these recordings. If a witness testified in some glaringly contradictory fashion to what that witness actually said on the recording, then the defendants should be allowed to raise anew with the district judge the possibility of using this transcript, its illegality notwithstanding, to impeach that witness," Inman wrote.
TRIAL SET FOR DECEMBER
The Sens' joint trial is set for Dec. 3 in U.S. District Court in Greeneville.
Both were re-arraigned after a second superseding indictment was filed Oct. 8 by the U.S. Attorney's Office that dropped felony health-care fraud charges against Anindya Sen, but added additional felony charges against Patricia Sen, who is ETCBC practice manager.
Dr. Sen, 64, is managing physician and president of ETCBC, with offices at 1406 Tusculum Blvd. and in Johnson City.
One of the statements from the April 5 interview includes a characterization by Special Agent West of the medications obtained by Patricia Sen for the practice as "foreign drugs."
West also cites specific drugs that he alleges are "foreign-labeled," according to the recording transcript.
There are a total of 83 counts involving all defendants in a second superseding indictment filed last week.
Patricia Sen and ETCBC are charged with 44 felony counts of health-care fraud.
Anindya Sen, Patricia Sen and ETCBC are also charged with 25 counts of interstate commerce of misbranded drugs and six counts of receiving merchandise imported contrary to law, charged as felonies.
The indictment filed on Tuesday charges Dr. Sen with 29 misdemeanor violations of causing the introduction into interstate commerce of misbranded drugs, and Patricia Sen with 29 felony violations of the same statute.
The second superseding indictment said that, as part of the treatment for patients with cancer and other diseases, ETCBC purchased chemotherapy and other prescription drugs prescribed by Dr. Sen, and administered and dispensed them through the practice.
Reimbursement for the drugs and their administration was sought from the Medicare and TennCare programs, along with other health care benefit programs.
The indictment said that in April 2009, Patricia Sen "began ordering and directing others to order drugs" from Clinical Care, a company based in Alberta, Canada.
Clinical Care "began shipping misbranded unapproved drugs to ETCBC," where they were administered to patients, and claims for reimbursement were submitted to health benefits programs.
UNAPPROVED DRUGS ALLEGED
The drugs were "from foreign sources that were not inspected and approved" by the U.S. Food and Drug Administration, the indictment alleges.
ETCBC purchased more than $3 million worth of drugs from Clinical Care from April 2009 through March 2012, the indictment said.
The indictment said that Patricia Sen and ETCBC committed health care fraud by submitting claims for reimbursement to public health care benefit programs by "falsely representing" through codes for FDA-approved drugs, "when in fact they were not [FDA-approved]."
Patricia Sen was indicted on two counts of willfully making a false statement to government agents, a felony, in connection with the statements made on March 27 and April 5 to West and special agents of the FDA's Office of Criminal Investigation.
The charges were included in a first superseding indictment filed on July 9 of willfully making a false statement to government agents, a felony.