BY KEN LITTLE
The latest legal volley in the case involving Greeneville oncologist Dr. Anindya K. Sen and his wife, Patricia, was fired last week by defense lawyers in a motion seeking dismissal of the case because of "vindictive prosecution, prosecutorial misconduct and selective prosecution."
U.S. Magistrate Judge Dennis Inman is expected to hear arguments at a Nov. 13 hearing in Greeneville.
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.
In two superseding indictments, more felony charges have been added against Patricia Sen, while felony health care fraud charges against Dr. Sen were dismissed.
Earlier this month, Inman granted a motion filed by the government prohibiting the use of "unlawfully intercepted oral communications" at the upcoming trial of Dr. Sen.
The Sens' joint trial is set for Dec. 3 in U.S. District Court in Greeneville.
Also listed as a defendant in the case is East Tennessee Cancer & Blood Center (ETCBC), the clinic operated by the Sens that has offices at 1406 Tusculum Blvd. and in Johnson City.
The joint motion was filed Oct. 21 by Edward M. Yarbrough and J. Alex Little, who represent Anindya Sen; and Daniel D. Warlick, who represents Patricia Posey Sen, ETCBC practice manager.
It seeks dismissal of the second superseding indictment in the case, filed Oct. 8 by Assistant U.S. Attorney Neil Smith, for three reasons.
"The indictment is the result of vindictive prosecution," the first reason states.
The second point claims that the government "committed egregious prosecutorial misconduct that violated the defendants' right to due process."
The third reason contends that "selective prosecution of the defendants as compared to other similarly situated individuals violated the defendants' right to equal protection of the laws."
In the alternative, the motion states that, if Inman finds that the evidence presented is currently "insufficient" to conclude that the government committed prosecutorial misconduct or engaged in vindictive and selective prosecution, "the court should permit the defendants to obtain discovery about these matters."
The government had not issued a response to the motion as of Monday.
The indictment should be dismissed because it was vindictive, the defense motion states.
"At the outset of this case, the government improperly attempted to coerce guilty pleas from the defendants by threatening to indict Dr. Anindya Sen on felony charges that it did not have evidence to support," the motion said.
The Sens have maintained their innocence and "refused to plead guilty," resulting in retaliation by the government, "by manipulating and prejudicing the grand jury investigation against them," the motion said.
The government also sought an indictment against the Sens that "it knew was not supported by sufficient evidence," according to the motion.
The defense motion maintains that the indictment should be dismissed because of "egregious prosecutorial misconduct" by the government.
Misconduct alleged in the motion includes efforts by the prosecution and case agents to undermine the integrity of the investigation by "disparaging the defendants to known and potential grand jury and trial witnesses," by "disclosing secret grand jury information" and "disclosing confidential financial information about the defendants to inflame witnesses against the defendants."
The motion also alleges that Smith personally confronted a witness to "threaten him with potential charges if he did not change his statement and assist the government."
The motion maintains that the indictment should also be dismissed "because it represents the product of selective prosecution of the defendants."
The motion said that the government did not seek criminal charges against another clinic and two doctors who engaged in activities similar to what the government is alleging about the Sens and ETCBC.
In July, three doctors affiliated with McLeod Cancer in Johnson City agreed to pay $4.25 million to settle allegations of civil false claims, submitted to Medicare and TennCare, for misbranded, unapproved chemotherapy drugs.
Dr. William R. Kincaid, Dr. Millard R. Lamb and Dr. Charles O. Famoyin, former partners at McLeod Cancer and Blood Center, agreed to pay the sum in separate settlement agreements.
Kincaid, the managing partner of McLeod Cancer and Blood Center, pleaded guilty in December 2012 to receiving misbranded drugs with intent to defraud or mislead in violation of the federal Food, Drug and Cosmetics Act.
He was sentenced on June 10 in U.S. District Court in Greeneville to serve two years in federal prison.
Lamb and Famoyin were not prosecuted by the government, nor was McLeod Cancer and Blood Center, in Johnson City.
"As the facts of this case demonstrate, there also was no rational reason for the government to treat ETCBC, Dr. Sen and (Patricia) Sen differently than McLeod Cancer, Dr. Lamb and Dr. Famoyin," the motion said.
The second superseding indictment includes a total of 83 counts involving all defendants.
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 Oct. 8 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 special agents of the FDA's Office of Criminal Investigation and the FBI.
The charges were included in a first superseding indictment, filed on July 9, of willfully making a false statement to government agents, a felony.