United States District Court, E.D. Louisiana
SUSIE MORGAN, District Judge.
Pending before the Court is a motion filed by Defendant Nides ("Nides") to dismiss Counts 2, 4, 5, 6, and 10 of the superseding indictment. Nides contends that these Counts "are quixotic, untimely, and vindictive" and seeks them dismissed. The Court has reviewed the briefs, the record, and the applicable law and now issues this Order.
This criminal case arises out of the operation of "pill mill" pain management clinics by Defendants Tiffany Miller ("Miller") and Joseph Mogan ("Mogan), which allegedly "dispense[d] quantities of oxycodone (oxycontin), opana, MS contin, methodone, hydromorphone, hydrocodone, alprazolam, diazepam, clonazepam, butalbital, carisprodal, and other Schedule II, III, and IV controlled substances outside the scope of professional practice and not for a legitimate medical purpose, " and Defendant Nides's alleged assistance in covering up that activity while a New Orleans Police Department officer deputized as a Drug Enforcement Agency ("DEA") Tactical Diversion Task Force member.
The original nine-count indictment was returned on February 21, 2014. On August 8, 2014, the superseding indictment was returned, which added Count 10. Count 1 charges that Miller, Mogan, and Nides conspired to dispense controlled substances at the Omni Clinic, a pain management clinic operated by Miller and Mogan, in violation of 21 U.S.C. § 841(a) and 846. According to the superseding indictment, Nides conspired with Miller and Mogan by illegally aiding the operation of their clinics and assisting them in their attempts to evade law enforcement. He did so by allegedly accepting cash payments and sex acts in exchange for his failing to investigate their illegal activities and disclosing "red flags" that the DEA used to identify "pill mills." The superseding indictment also alleges that Nides warned Miller about an upcoming DEA search of a different pain clinic operated by Miller's sister. Nides does not challenge Count 1 in the pending motion, but he argues Counts 2, 4, 5, 6, and 10 should be dismissed for various reasons as set forth below.
A. Counts 2, 4, and 5
Nides moves to dismiss Counts 2, 4 and 5 of the superseding indictment on the basis that they are barred by the statute of limitations. Specifically, he argues that the tolling agreements signed by Defendant expressly exclude these Counts, so they were not timely when the indictment was filed because the extensions provided for in the agreements did not save unenumerated offenses. The Government responds that Nides's argument seeks to contort the tolling agreements to read them in a way unsupported by the language of the agreements and the parties' intent for the agreements to affect all criminal offenses related to the investigation of the operation of the clinics.
The indictment charging Counts 2 and 4 was returned, filed, and sealed on February 21, 2014 and unsealed on February 24, 2014. Count 2 charges Nides with use of a telephone on March 7, 2008 to facilitate the conspiracy charged in Count 1 in violation of 21 U.S.C. § 843(b). Count 4 charges Nides with conspiracy by a public official to receive bribes in violation of 18 U.S.C. § 201(b)(2),  which is based on his alleged acceptance of sex and money while a deputized DEA agent in return for being influenced in the performance of his official acts to assist the unlawful operation of the "pill mills" for a number of years until on or about March 14, 2008.
The statute of limitations applicable to this matter provides: "Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed." This period is tolled when an indictment is timely returned and filed. Nides argues that "the filing of the original indictment on February 21, 2014 would have tolled the statute of limitations... for offenses committed between February 21, 2009 and February 21, 2014. Clearly then, the original indictment was not timely with regard to the Count 2 telephone call on March 7, 2008 and the Count 4 conspiracy that ended on March 14, 2008."
The timeliness of Counts 2 and 4 depends upon the interpretation of the tolling agreements entered into by Nides on March 1, 2013 and August 20, 2013, in which he originally agreed to toll the statute of limitations through September 1, 2013 and then to extend the waiver until March 1, 2014 in the second agreement. The agreements both begin by stating that "Donald Nides understands that he and others are the subjects of a federal criminal investigation relating to the management and operation of the Omni Pain Clinics." The agreements then list certain offenses, stating that they are "[s]ome of the criminal statutes that may be applicable." The next paragraphs then state: "Donald Nides agrees to toll the statute of limitations applicable to these offenses until September 1, 2013, " and "agrees to extend the waiver of statute of limitations until March 1, 2014, " respectively. The critical question is whether the agreements toll all crimes related to the investigation of the Omni Pain Clinics or just the crimes enumerated in the agreements.
Nides claims that "[u]pon closer examination, ... it appears that the Counts 2 and 4 offenses were expressly excluded from the tolling agreements." In support, he points to language in the second paragraph of each agreement, which state: "Donald Nides agrees to toll the statute of limitations applicable to these offenses. '" Nides argues that the phrase "these offenses" refers to those crimes enumerated in the first paragraph of each agreement; "[t]herefore, Nides expressly did not waive the statute of limitations with regard to the telephone offense charged in Count 2 and the conspiracy to accept bribes charged in Count 4" because "none of these offenses were enumerated as applicable to the waiver agreements." He asserts that "the plain language of the tolling agreements makes it clear that Nides never waived the Statute as to... unenumerated offenses;" accordingly, Counts 2 and 4 must be dismissed as untimely since they were unenumerated and barred because they were allegedly committed more than five years before the indictment was returned and filed. He also argues that as a matter of contract law, it was never Nides's intent to agree to toll any and all crimes, so the tolling agreements are unenforceable.
The Government responds that the language of the tolling agreements does not permit such a reading. Instead, "[t]he agreement was that the government would forbear from bringing any charges if the defendant would agree to toll the limitations period on all charges while the defense investigated the allegations and its defenses." The list of some offenses in the agreements served "to provide Nides and his counsel some understanding of what conduct they needed to focus on" to prepare Nides's defense; the tolling agreements were not intended by the parties to be limited to the few examples given by the Government. The language of the agreements indicates that the waiver was intended to be broader than just the enumerated crimes.
The Court agrees with the Government. Both agreements list certain offenses in the first paragraph, preceded by the phrase " [s]ome of the criminal statutes that may be applicable" in the "federal criminal investigation... of the Omni Pain Clinics." When the reference to "these offenses" in the second paragraph is read in the context of the entire agreement, it is apparent that the list of enumerated crimes in both agreements is not exclusive. Rather, the list was meant to provide notice of the types of offenses that may be charged as a result of the Government's investigation into the clinics. The remaining language in the agreements is consistent with the finding that Nides's reasonable understanding when he entered into the agreements was that he was waiving the statute of limitations for all criminal offenses related to the investigation of the ...