The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge
INITIAL RECOMMENDATION REGARDING [Counts 6 - 9]
MOTION TO DISMISS (Docket No. 33)
Defendant Gary Gerlay moves pursuant to the Due Process Clause of the Fifth Amendment for an order dismissing Counts 6 through 9 of the Indictment due to pre-indictment delay. Docket 33. Gerlay filed a supporting brief at Docket 34, exhibits under seal at Docket 74, and a supplemental memorandum at Docket 97 with exhibits under seal at Docket 100. The motion is opposed by the government. Docket 54. The government did not respond to the defendant's supplemental memorandum in support of dismissal of Counts 6 through 9. For reasons discussed hereafter, the motion lacks merit.
Counts 6 through 9 allege that Dr. Gerlay prescribed controlled substances to "David K" intentionally, not for legitimate medical purpose and intentionally outside the usual course of professional medical practice.*fn1 David K died approximately 20 months after the DEA began its investigation and prior to the indictment in this case.*fn2
Counts 6 through 9 of the indictment allege that on four separate occasions, beginning December 13, 2004 (Count 6) to March 7, 2005 (Count 9), Gary S. Gerlay unlawfully distributed and dispensed OxyContin and Hydromorphone and Xanax to David K in violation of 21 U.S.C. § 841(a)(1) and aiding and abetting statute, 18 U.S.C. § 2. Gerlay claims that David K would have been a favorable witness to the defense as to the intent requirement of Counts 6 through 9. According to Dr. Gerlay, beginning in May 2003, David K complained to his primary treating physician of pain in his back as a result of a work related injury. The treating physician referred David K to Dr. Gerlay for management of "unresolved and persistent pain" related to the injury. Prior to the indictment, David K. was examined by a psychiatrist, Dr. Alan Abrams, hired by an insurance company, and Gerlay complains that David K can no longer be subjected to further psychiatric testing.*fn3
The U.S. Supreme Court decisions that have examined due process claims granted on pre-arrest delay in federal criminal prosecutions have relied on the Due Process Clause of the Fifth Amendment. That Amendment provides: "[n]o person shall . . . be deprived of life, liberty, or property without due process of law . . . ."
The Fifth Amendment requires the dismissal of an indictment, even if it is brought within the statute of limitations, if the defendant can prove that the government's delay in bringing the indictment was a deliberate device to gain an advantage over him and that it caused him actual prejudice. See Arizona v. Youngblood, 488 U.S. 51, 57, 109 S.Ct. 333 (1988).
The seminal case is United States v. Marion, 404 U.S. 307, 92 S.Ct. 455 (1971), wherein the court addressed whether a defendant's federal constitutional rights are violated by an extensive delay between the occurrence of a crime and the indictment or arrest of a defendant for the crime. The defendants in Marion were charged with having engaged in a fraudulent business scheme beginning in March 1965 and ending January 1966. The court held that no actual prejudice to the conduct of the defense had been alleged or proved, and there was no showing that the government intentionally delayed prosecution to gain some tactical advantage over Marion or to harass him.
The grand jury that investigated the scheme in Marion was not impaneled until September 1969 and an indictment was not returned until March 1970. The court noted that the primary guarantee against bringing overly stale charges is the applicable statute of limitations. In the instant case, the approximate 53 to 56 months of delay in charging Dr. Gerlay from the dates of the alleged criminal acts in 6-9 of the Indictment (December 13, 2004 - March 7, 2005), falls within the five-year statute of limitations.
In United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044 (1977), the court discussed the decision in Marion and rejected Lovasco's argument that if a defendant suffered actual prejudice from the pre-trial delay, this alone was sufficient proof to establish a due process violation. Lovasco makes clear that the holding in Marion that proof of prejudice is generally a necessary but not a sufficient element of a due process claim, and that court's the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused. Id. at 790. Thus, from Marion and Lovasco, a two-prong test has emerged to address a due process claim for pre-arrest delay. First, the defendant must show actual prejudice from the delay and, second, the prejudice alone is not sufficient to show a violation of due process where the delay was due to the government's continuing investigation of the crime.
As a threshold matter, then, Gerlay must establish that he suffered actual prejudice from the delay. United States v. Horowitz, 756 F.2d 1400, 1405 (9th Cir. 1985). In United States v. Mays, 549 F.2d 670 (9th Cir. 1977), the court held that the defendant must not only show loss of a witness and/or evidence, but must also demonstrate how that loss is prejudicial to him and such proof must be definite and nonspeculative. Id. at 677. "The assertion that a missing witness might have been useful does not show the 'single actual prejudice' required by Marion." United States v. Galardi, 476 F.2d 1072, 1075 (9th Cir.), cert. denied, 414 U.S. 839 (1973).
Dr. Gerlay complains that he's prejudiced because he is unable to seek a second psychiatric opinion of David K now that David is deceased. He does not explain in his memorandum why he is so highly prejudiced because he cannot seek a second psychiatric examination of David K now that David Deceased. Dr. Gerlay complains that the demise of David K is prejudicial because he can no longer offer David K's testimony regarding the physician/patient relationship. Dr. Gerlay was not David K's primary physician. It was Dr. Thornquist. On or about January 2004, Dr. Cohen, a neurosurgeon, performed an operation on David K to fuse damaged vertebrae. There is no showing that either of these physicians is deceased or unavailable to be called as a witness.
Dr. Gerlay claims that he cannot "test" Dr. Abrams medical opinions. The motion to dismiss does not identify what part of Dr. Abrams' report the defendant particularly seeks to rebut. Dr. Abrams examined David K as a psychiatrist, not a pain management specialists. Dr. Abrams is not deceased and he can be examined as a witness at trial. The defendant has a copy of Dr. Abrams November 2004 report. The defendant's intent to act is at issue not the patient's. Pain is somewhat subjective. The pain treatment physician is called upon to render a professional opinion based in part on what the patient tells ...