In criminal cases, the government frequently employs the strategy of offering immunity to one defendant or witness for information to use in an investigation or against others. In some cases, the government may come to regret its agreement and may seek to get around it to prosecute the cooperating defendant or witness. However, as the Supreme Court held in Kastigar v. United States, 92 S. Ct. 1653 (1972), “where a party has been compelled to relinquish his Fifth Amendment right against self-incrimination in reliance on the government‘s promises of immunity, the government bears the―affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.” Where the government reneges on an agreement of immunity in exchange for testimony or information and seeks to prosecute a defendant, the defense must seek to vigorously hold the government to its promise by requiring it to prove that all information used to prosecute the defendant was obtained from wholly independent, legitimate sources.
One such situation has arisen in the U.S. District Court for the Southern District of Georgia, in the case of U.S. v. Rasco, Case No. 4:08-100. Alfred Rasco was arrested May of 2008 as a result of Medicare fraud in relation to his operation of United Therapy, which operated infusion clinics. Following his arrest, Mr. Rasco offered to meet with the government. In May of 2008, Mr. Rasco and his counsel met with attorneys for the United States Attorney’s Office for the Southern District of Georgia and investigating agents. Mr. Rasco and his attorney understood that the purpose of the meeting was so that Mr. Rasco could make a proffer of information to the government for the government to evaluate, and that he would receive certain protections, including in not having any of the information which he provided used against him.
Mr. Rasco and the government entered into plea negotiations. In August of 2008, Mr. Rasco and his attorney met with representatives of the government a second time pursuant to a letter proffer agreement. The proffer agreement provided, in relevant part, that (1) the government would not make any “direct use” of the statements or information provided by Mr. Rasco against him, (2) the government could make “derivative use” of investigative leads suggested by any statements or information provided by Mr. Rasco, and (3) the proffer agreement would not protect against prosecution for perjury or false statements. Mr. Rasco provided the government with statements and information which the government used to indict Mr. Rasco’s co-conspirator, Riccy Mederos, in September of 2008.
Despite the government’s promises and the proffer agreement and the information provided by Mr. Rasco, in October of 2008, the prosecution obtained a superseding indictment against Mr. Rasco and his wife for conspiracy and health care fraud. Mr. Rasco moved to dismiss the indictment or to prohibit the government from using any evidence or information which it obtained during the proffer meetings against him, arguing that the government’s indictment was largely the direct result of evidence and information provided by Mr. Rasco. A hearing was held on the motion on August 31, 2009. The prosecution responded by returning to the grand jury again to obtain a second superseding indictment against Mr. Rasco.
The defense contended, however, that the evidence presented to the grand jury, which included testimony by Mederos, and the allegations in the second superseding indictment were directly derived from statements and information provided by Mr. Rasco to the government in his proffer meetings relating to false Medicare diagnostic codes and tests and Mederos’ advice to Rasco to locate the infusion clinic outside of Florida. It argued that Mederos’ testimony was tainted by statements and information provided by Mr. Rasco. The defense also maintained that the prosecution had presented the testimony of a case agent to the grand jury, who falsely testified to the grand jury that he had obtained his information from interviewing a key physician witness, when the agent had actually obtained the information from Mr. Rasco in his second proffer. In May of 2009, Mederos agreed to cooperate with the prosecution and attended proffer meetings with the same agents who had interviewed Mr. Rasco.
The defense has filed a Supplemental Motion to Dismiss and Motion In Limine, which may be viewed here, arguing that the government must be prohibited from using the statements and information provided by Mr. Rasco during his proffer meetings against him, pursuant to the proffer agreement, and requesting that the second superseding indictment be dismissed. Mr. Rasco has also requested a Kastigar hearing to require the prosecution to prove that it obtained the second superseding indictment based upon legitimate, untainted sources wholly independent of any statements or information provided by Mr. Rasco pursuant to the proffer agreement. Mr. Rasco also relies on Federal Rule of Evidence 410, which provides that evidence of plea negotiations is not admissible against a defendant participating in the negotiations.
The prosecution has responded to the defense’s supplemental motion, which response is viewable here. It contends that Mr. Rasco’s contentions regarding the relocation of the infusion clinic are moot because it has dropped these allegations from its indictment. It also defends that it obtained information regarding United Therapy’s false diagnostic codes and tests from sources independent of, or prior to, Mr. Rasco’s proffer to the government, and asserts that it did not falsely represent facts to the court during the August hearing or suborn perjured testimony before the grand jury.
Mr. Rasco is represented by Savannah, Georgia, attorney Julie M. Wade, of the Wade Law Firm. Assistant United States Attorney Brian T. Rafferty is representing the United States. On Friday, the Court issued a 60 page order, viewable here, in which it granted a Kastigar hearing. The Blog intends to keep track of the case and the outcome of Mr. Rasco's efforts to enforce the proffer agreement and hold the government to its word.
