BY KEN LITTLE
U.S. Magistrate Judge Dennis Inman should rule next week on a motion filed by the government seeking to ban recorded statements made by employees of the Greeneville clinic operated by Dr. Anindya K. Sen.
The employees of the East Tennessee Cancer & Blood Center (ETCBC), and two federal agents who conducted the interviews in April at Sen's Greeneville office, appeared Friday at a motions hearing in U.S. District Court.
Lawyers for Sen and his wife, Patricia Posey Sen, argued in favor of allowing the recorded interview at the Sens' upcoming trial, while Assistant U.S. Attorney M. Neil Smith spoke in favor of prohibiting what the government maintains are "unlawfully intercepted oral communications."
Both Sens were re-arraigned after a second superseding indictment was filed Tuesday 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.
A joint trial for Anindya and Patricia Sen is set for Dec. 3. Both were present in court Friday.
2 MOTIONS GRANTED
Sen, 64, is managing physician and president of the East Tennessee Cancer & Blood Center (ETCBC), with offices at 1406 Tusculum Blvd. and in Johnson City.
He and Patricia Sen were originally indicted in June by a federal grand jury on charges connected with the alleged sale and administration of misbranded drugs.
Inman granted two other motions by the government on Friday.
The first requested that certain statements made April 5 by Patricia Sen to agents of the U.S. Food and Drug Administration (FDA) and the FBI at the Sens' Tusculum Boulevard office be paraphrased and introduced at the joint trial of both defendants.
One of the statements includes a characterization by FDA Agent Robert 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.
The second motion by the U.S. Attorney's office requests that the court take "judicial notice" of information the government will present at trial, including evidence that the drugs were shipped directly to Sen from the United Kingdom.
"The United States expects the proof at trial to show that chemotherapy treatment of patients at ETCBC was delayed on occasion" because of delayed air shipments from the U.K. to the U.S.
The motion states that flights in April and May 2010, and again in May 2011, were delayed because of a volcanic eruption that created an ash plume resulting in the cancellation of flights from the U.K.
The government also plans to show that air travel from the U.K. was disrupted because of the wedding of Prince William and Catherine Middleton, on April 29, 2010.
The federal agents relied on notes to document the content of two interviews with Patricia Sen.
The prosecution called several Sen clinic employees, along with West, to testify that they were not aware they were being recorded in the medical office conference room where the interviews took place.
A draft of the interview conducted by West does not accurately reflect the content of the interviews as recorded on tape, Dr. Sen defense lawyers Edward M. Yarbrough and J. Alex Little said in a recent response to the government motion.
Daniel Warlick represents Patricia Sen.
In court Friday, Yarbrough asked the employees and West if they were not aware there were four video cameras in the clinic.
"Everybody would have been aware that the camera was on?" he asked former office employee Barbara Henegar.
"Yes," she replied, later adding she did not know the interview with the FDA agent was being recorded.
'THOUGHT IT WAS PRIVATE'
"I thought it was private," Henegar testified.
Yarbrough and Warlick seek to have the entire interview allowed into evidence.
"Which do you think would be more accurate, notes or a recording?" Yarbrough asked several prosecution witnesses.
West told Yarbrough that it is FDA policy for its investigators to take notes rather than record interviews.
"You're not aware of any good reason (why)?" Yarbrough asked.
"I don't know the reason they make the policies," West replied, adding that he wrote down the "relevant information" from the interview with Patricia Sen.
"Your agency doesn't believe judges and juries are capable of listening to a recording and [understanding] everything in the interview?" he asked West.
"When I go into an interview room ... I expect that conversation is private," West said.
Inman said in court he had to consider whether use of the recording during trial was a "lawful interception" of the interview.
Yarbrough said it occurred to him before Friday's hearing that the proceeding may be recorded.
"I don't think anybody in this room would be satisfied with a transcript unless it was taken down word for word," he said. "It is equally important, particularly that first (interview), when we had an opportunity to have truthful testimony."
The federal agents had no right to expect privacy in a setting such as Dr. Sen's office, Yarbrough said.
Smith argued that courts regularly exclude certain testimony, including conversations between a husband and wife and information about a defendant's previous criminal convictions.
"The accuracy of information is not the hear all and be all," Smith said.
Surveillance signs were clearly posted near the cameras in Sen's office, Yarbrough said, "and now the government is coming in and saying they're shocked and surprised this is going on."
"You don't have a reasonable expectation of privacy while conducting an interview in somebody's office," he added.
There are a total of 83 counts involving all defendants in the second superseding indictment.
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.
Patricia Sen was indicted July 9 in a first superseding indictment on two counts of willfully making a false statement to government agents, a felony.
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 does not specify why the health care fraud charges against Anindya Sen were dropped.
MOTIONS HEARING SET
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 making false statements to government agents 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, according to the indictment.