No. ___________________

______________________________________

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 2009

________________________________________

ANGELA DEE ISLEY

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

__________________________________________

On Petition for Writ of CertiorariTo the United States Court of Appeals

for the Eleventh Circuit__________________________________________

PETITION FOR WRIT OF CERTIORARI____________________________________________

ROBERT F. SCHROEDERCounsel of RecordOne Securities Centre3490 Piedmont Road, N.E.Suite 1050Atlanta, Georgia 30305(404) 842-0131(404) 842-9750 (facsimile)

Counsel for Petitioner

QUESTIONS PRESENTED

1. Whether the United States Court of Appeals for the Eleventh Circuit

misapplied this Court’s Brady jurisprudence when it concluded that the

Government did not violate Brady where the suppressed evidence, which was

subsequently deemed to be irrelevant and inadmissible, was nevertheless likely to

lead to the discovery of admissible evidence? See Brady v. Maryland, 373 U.S. 83,

83 S. Ct. 1194 (1963); Wood v. Bartholomew, 516 U.S. 1, 116 S. Ct. 7 (1995),

2. Whether the lower tribunal misapplied this Court’s Brady jurisprudence

by concluding that although the suppressed evidence was relevant and material to

the defendant’s defenses, it was too costly and burdensome for the Government to

produce that evidence? See Brady, 373 U.S. at 83.

i

PARTIES TO THE PROCEEDINGS

The only parties to this proceeding are Petitioner, Angela Dee Isley, an

incarcerated individual, and Respondent, the United States of America.

RULE 29.6 DISCLOSURE

No corporations or corporate entities are involved in this proceeding.

ii

TABLE OF CONTENTS

Questions Presented...................................................................................................i

Parties to the Proceeding...........................................................................................ii

Rule 29.6 Disclosure.................................................................................................ii

Table of Authorities...................................................................................................v

Petition for a Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit......................................................................................................1

Opinions Below.........................................................................................................1

Jurisdiction................................................................................................................2

Constitutional Provisions Involved...........................................................................3

Statement of the Case................................................................................................3

Reasons for Granting the Writ.................................................................................11

A. THE COURT SHOULD ISSUE A WRIT OF CERTIORARI TO RESOLVE THE CONFLICT IN THE FEDERAL CIRCUITS AS TO WHETHER A BRADY VIOLATION OCCURS WHEN THE GOVERNMENT SUPPRESSES INADMISSIBLE EVIDENCE THAT IS LIKELY TO LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE...................................................12

B. THE GOVERNMENT’S OBLIGATION UNDER BRADY IS NOT EXCUSED BECAUSE THE PRODUCTION OF THE FAVORABLE EVIDENCE IS COSTLY OR BURDENSOME..................................................22

Conclusion...............................................................................................................24

Appendix

United States v. Isley, 2010 WL 801736 (11th Cir. March 10, 2010).............App. A.

iii

United States v. Isley, Case No. 1:05-CR-621-CAP, United States District Court, Northern District of Georgia (Aug. 4, 2008).......................App. B.

United States v. Isley, Case No. 1:05-CR-621-CAP, United States District Court, Northern District of Georgia (Jan. 14, 2008).......................App. C.

iv

TABLE OF AUTHORITIES

Cases

Banks v. Dretke,540 U.S. 668, 124 S. Ct. 1256, 157 L. Ed. 2d 1166 (2004)...................................3

Bradley v. Nagle,212 F.3d 559 (11th Cir. 2000)..............................................................................14

Brady v. Maryland,373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)..................................passim

Coleman v. Calderon,150 F.3d 1105 (9th Cir.) rev'd on other grounds, 525 U.S. 141, 119 S.Ct. 500 (1998).............................................................................................14, 16

Ellsworth v. Warden,333 F.3d 1 (1st Cir. 2003)..............................................................................12, 14

Felder v. Johnson,180 F.3d 206 (5th Cir.), cert. and reh. denied, 528 U.S. 1067, 120 S. Ct. 630 (1999).................................................................................................15, 16

Hoke v. Netherland,92 F.3d 1350 (4th Cir.), cert. denied, 519 U.S. 1048, 117 S. Ct. 630 (1996).............................................................................................................13, 15

Kyles v. Whitley,514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995)...............................3, 20

Madsen v. Dormire,137 F.3d 602 (8th Cir.), cert. denied, 525 U.S. 908, 119 S. Ct. 247, 142 L. Ed. 2d 203 (1998)...............................................................................14, 15

Mooney v. Holohan,294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791 (1935)..............................................21

v

Spaziano v. Singletary,36 F.3d 1028 (11th Cir. 1994)..............................................................................14

Strickler v. Greene,527 U.S. 263, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999).....................................3

United States v. Bagley,473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985).............................3, 4, 20

United States v. Countryside Farms, Inc.,428 F. Supp. 1150 (D. Utah 1977).......................................................................22

United States v. Derr,990 F.2d 1330 (D.C. Cir. 1993)...........................................................................13

United States v. Gil,297 F.3d 93 (2d Cir. 2002)...................................................................................14

United States v. Johnson,2007 U.S. Dist. LEXIS 41392 (D. Kan. 2007).....................................................22

United States v. Montalvo,20 F. Supp. 2d 270 (D.P.R. 1998)........................................................................15

United States v. Phillip,948 F.2d 241 (6th Cir. 1991), cert. denied, 504 U.S. 930, 112 S. Ct. 1994 (1992)..........................................................................................................14

United States v. Sipe,388 F.3d 471 (5th Cir. 2004)................................................................................14

United States v. Steffen,641 F.2d 591 (8th Cir. 1981)................................................................................22

Wood v. Bartholomew,516 U.S. 1, 116 S. Ct. 7, 133 L. Ed. 2d 1 (1995)....................................i, 2, 15, 18

Wright v. Hopper,169 F.3d 695 (11th Cir. 1999)..................................................................14, 15, 19

vi

Youngblood v. W. Virginia,547 U.S. 867, 126 S. Ct. 2188, 165 L. Ed. 2d 269 (2006).................................2, 3

Constitution and Statutes

United States Const., Amend. V ...............................................................................3

18 U.S.C.A. § 1341 ..................................................................................................5

18 U.S.C.A. § 1346 ..................................................................................................5

18 U.S.C.A. § 1347 ..................................................................................................5

18 U.S.C.A. § 1957 ..................................................................................................5

18 U.S.C.A. § 3231 ..................................................................................................2

28 U.S.C.A. § 1254 ..................................................................................................2

28 U.S.C.A. § 1291 ..................................................................................................2

Rules

Sup. Ct. R. 10(a)........................................................................................................3

Sup. Ct. R. 13.1.........................................................................................................2

Sup. Ct. R. 29.2.........................................................................................................2

vii

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2009

_______________________________________

ANGELA DEE ISLEY,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

_________________________________________

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

__________________________________________

Petitioner respectfully requests that a writ of certiorari be issued to review

the judgment of the United States Court of Appeals for the Eleventh Circuit in this

case.

OPINIONS BELOW

United States v. Isley, 2010 WL 801736 (11th Cir. March 10, 2010). (App.

A.)

United States v. Isley, Case No. 1:05-CR-621-CAP, United States District

Court, Northern District of Georgia (Aug. 4, 2008). (App. B.)

1

United States v. Isley, Case No. 1:05-CR-621-CAP, United States District

Court, Northern District of Georgia (Jan. 14, 2008). (App. C.)

JURISDICTION

The United States District Court for the Northern District of Georgia had

jurisdiction over this case pursuant to 18 U.S.C. § 3231. The United States Court

of Appeals for the Eleventh Circuit (the “Eleventh Circuit”) had jurisdiction

pursuant to 28 U.S.C. § 1291.

The Eleventh Circuit rendered its decision on March 10, 2010. (App. A.) In

doing so, the court of appeals misapplied this Court’s Brady jurisprudence and

created a conflict with other circuits. See Brady v. Maryland, 373 U.S. 83, 83 S.

Ct. 1194 (1963) and the conflict cases discussed below. The jurisdiction of this

Court is invoked pursuant to 28 U.S.C. § 1254(1). Petitioner, who is

contemporaneously filing a motion for leave to proceed in forma pauperis, is

timely filing this Petition for a Writ of Certiorari by United States Mail on or

before June 8, 2010.1 See Sup. Ct. R. 13.1 & 29.2.

This Court has exercised its discretion to review decisions that misapplied

the Court’s Brady jurisprudence. See Wood v. Bartholomew, 516 U.S. 1, 116 S.

Ct. 7 (1995). It has also exercised its discretion to review decisions in an effort to

clarify Brady. See, e.g., Youngblood v. West Virginia, 547 U.S. 867, 126 S. Ct.

1 Petitioner did not file a petition for rehearing and/or petition for rehearing en banc below.

2

2188 (2006); Banks v. Dretke, 540 U.S. 668, 124 S. Ct. 1256 (2003); Strickler v.

Greene, 527 U.S. 263, 119 S. Ct. 1936 (1999); Kyles v. Whitley, 514 U.S. 419, 115

S. Ct. 1555 (1995); United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375 (1985).

The willingness of the Court to review decisions implicating Brady is

understandable because those decisions directly affect defendants’ due process

rights as guaranteed by the United States Constitution. Petitioner’s Brady rights

should not depend upon the federal circuit in which she finds herself. See S. Ct. R.

10(a). Consequently, a writ of certiorari is warranted in this case.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use, without just compensation.

STATEMENT OF THE CASE

Petitioner, Angela Dee Isley (“Isley”), worked for a durable medical

equipment (“DME”) supply company called Orthoscript, Inc. (App. A at 2.)

Orthoscript had hired Isley to manage its billing operations, which included the

supervision and instruction of other employees who prepared and submitted claims

3

for payment to insurance companies and Medicare. (App. A at 2.) Under the

Medicare program, Orthoscript (and other DME suppliers) submitted claims for

reimbursement to a Medicare contractor known as the DME Regional Carrier

(“DMERC”). (Id.) Orthoscript’s DMERC was in Region C, the southeast region,

and it processed and adjudicated Medicare claims for Orthoscript and other DME

suppliers in that region. (See App. A at 2-3.)

The Medicare program uses a coding system called the Healthcare Common

Procedure Coding System (“HCPCS”), under which DME items, like wrist splints

and walking boots, are assigned product codes. (See App. A at 3.) Those product

codes are to be used to bill Medicare for the specific products actually provided to

the Medicare patient. (App. A at 8-9.)

The United States of America (the “Government”) first indicted Isley on

thirty-one counts of Medicare fraud. (App. A at 3.) Specifically, the Government

charged Isley with knowingly and willfully assigning incorrect product codes to

certain orthopedic supplies in order to generate higher payments to Orthoscript

from Medicare than were authorized. (Id.) That original indictment involved the

product codes L3670, L3800, L3907, L2114, L2116, and L1960, which pertained

to wrist splints and walking boots. (Dkt. 1)

Subsequently, the Government moved to dismiss the counts of the original

indictment related to L3670, L2114, and L2116. (Dkt. 132.) Isley opposed that

4

motion because the evidence related to L2114 and L2116 was favorable to her and

the dismissal of those counts would materially alter the indictment. (Dkt. 134.)

Thereafter, the Government filed a superseding indictment (the “Indictment”)

charging Isley with fourteen counts of healthcare fraud under 18 U.S.C. § 1347,

thirty-six counts of mail fraud under 18 U.S.C. §§ 1341 and 1346, and three counts

of money laundering under 18 U.S.C. § 1957. (Dkt. 146.)

The Government alleged that between 2001 and 2003, Isley caused her

employer, Orthoscript, to submit claims to Medicare using incorrect product codes.

(Dkt. 146.) The Government asserted that even though prefabricated products

were provided to the patients, Isley billed Medicare using the custom-fabricated

codes, L3800, L3907, and L1960, thereby causing Orthoscript to be reimbursed at

higher rates than the correct, prefabricated codes would allow. (Dkt. 146.) The

Government also alleged that Isley used the United States mail to defraud

Orthoscript by using Orthoscript’s money to pay for her and her partner’s personal

credit card charges. (Dkt. 146.) Finally, the Government alleged that on three

occasions, Isley engaged in money laundering transactions related to the funds

criminally derived from the healthcare fraud. (Dkt. 146.)

Prior to trial and pursuant to Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194

(1963), Isley requested the Government to produce, for the relevant time period, all

medical necessity approvals of claims submitted to DMERCs in the various

5

regions of the United States related to the products and codes at issue in the

original indictment. (See App. A at 4-8.) At times, a DMERC would subject a

benefits claim to a medical necessity review, which required the supplier to

provide detailed information about the claim, including the manufacturer’s picture

and description of the product provided to the patient, the manufacturer’s invoice,

and the physician’s medical necessity letter and treatment notes. (App. A at 4.)

The DMERC’s approval of a claim after a medical necessity review is called a

“MNA” (for Medical Necessity Approval). (Id.) Isley argued that certain MNAs

from all the regional DMERCs were exculpatory and material because they

showed that her coding choices for the relevant products were objectively correct

or otherwise demonstrated that her choices were made by mistake and not with

criminal intent. (See App. A at 4-6.) Indeed, Isley argued that Medicare’s product

coding system was vague, ambiguous, and confusing. (Dkt. 34, 35.) Isley asserted

that DMERC’s all over the country were issuing MNAs for claims submitted by

other DME suppliers using the same product codes for the same products during

the same time frame as Orthoscript. (Id.) Indeed, the material Isley sought would

have shown that other DMERC’s were approving numerous claims submitted with

the exact same product codes that Isley used after a medical necessity review that

revealed that the coded products involved were arguably prefabricated, not custom.

6

The magistrate judge concluded that the MNAs were not exculpatory and,

therefore, the Government had no obligation to produce them. (Dkt. 88.) At first,

the district court affirmed the magistrate’s conclusions. (Dkt. 103.)

Isley continued to try to obtain the MNAs for the codes at issue in the

original indictment through Freedom of Information Act (“FOIA”) requests and

Rule 17(c) subpoenas. (See Dkt. 135, 167.) In the FOIA requests and subpoenas,

Isley expanded her request from just Region C’s MNAs to include the MNAs from

all regions of the United States, Regions A, B, C, and D. (Dkt. 135, 167.) The

Government opposed Isley’s efforts by filing a motion to quash the subpoenas and

a motion in limine related to the other regions’ MNAs. (Dkt. 135, 167.) Isley

responded that the evidence was material to her defense, exculpatory, and could

also be used for impeachment purposes. (Dkt. 141, 188, 189.) Isley further argued

that the MNAs she sought: 1) demonstrate that her coding choices were objectively

correct or the result of innocent mistake, not criminal intent; 2) were necessary for

impeachment; and 3) would lead to the discovery of other material witnesses and

evidence, including DMERC reviewers and DME suppliers who interpreted the

coding requirements the same way Isley did. (See Dkt. 34, 212, 218.)

The district court denied the Government’s motion in limine. (Dkt. 207.)

The court acknowledged that Isley sought the MNAs granted to other DME

suppliers in other regions as direct evidence of mistake or lack of criminal intent as

7

well as for impeachment purposes. (Dkt. 207.) The court also decided it would

require the Government to produce the Region C MNAs for the codes and products

at issue at the relevant time. (Dkt. 210; see also App. A at 7-8.) The district court

stated that it would review the Region C information to determine whether it was

exculpatory. (App. A at 7-8.) If it determined that it was, the court would then

decide whether to require the Government to produce the information from the

other regions. (Id.)

After the Government produced the Region C MNAs, the district court

found the Region C MNAs to be exculpatory. (App. C at 2.) The district court

also ruled that while the MNAs from the other regions, Regions A, B, and D, may

be “relevant to some of the defendant’s possible defenses,” the burden and cost of

requiring the Government to produce the other regions’ MNAs (collectively, the

“Other MNAs”) outweighed Isley’s need for such cumulative information. (See

App. A at 7-8 & at 18 n.17; see also App. C at 2.) Nevertheless, the court advised

Isley that she could still seek the Other MNAs through Rule 17(c) subpoenas.

(App. C at 2-3.) Also, because the court found the other regions’ MNAs to be

material to Isley’s defenses, the court ordered that Isley’s Rule 17(c) subpoenas

could not be challenged on relevancy grounds. (Id.)

When Isley continued to try to obtain the Other MNAs through Rule 17(c)

subpoenas, the other regions filed motions to quash. (Dkt. 226, 227, 228.) In their

8

papers supporting the motions to quash, Region A reported that it had

approximately 2000 MNAs, Region B stated that it had 812 MNAs, and Region D

said that it had between 1500 and 2500 MNAs.2 (See App. A at 13 (footnote

omitted)). The district court granted the motions to quash on the first day of trial.

(Tr:1:54-55.) Nevertheless, the district court allowed Isley to testify at trial about

her efforts to obtain the Other MNAs and their reported number. (Tr:8:1398-

1403.) Although Isley was able to mention the numbers of the Other MNAs at

trial, the Government did not produce, and was never required to produce, the

Other MNAs themselves. (See App. A at 7-8.)

On April 28, 2008, the jury rendered its guilty verdict as to all counts, except

count twenty, which the Government had dismissed. (Dkt. 265.)

Isley filed a timely Motion for New Trial in which she argued that the

Government violated Brady by not producing the Other MNAs. (Dkt. 267.) While

that motion was pending, the court sentenced Isley to seventy months in prison and

three years of supervised release. (Dkt. 281.) The court also imposed a fine of

$125,000, ordered restitution of $703,814.82, and charged Isley with a special

assessment of $5,200. (Dkt. 281.)

2 Isley does not dispute that these numbers included MNAs for products that were at issue in the original indictment, but were no longer at issue in the Indictment under which she was to be tried. (See App. A at 13 & n.15.)

9

The district court denied Isley’s new trial motion on August 4, 2008. (Dkt.

280.) Isley timely filed her Notice of Appeal on August 8, 2008. (Dkt. 282.) The

Eleventh Circuit affirmed Isley’s conviction. (App. A.)

In affirming Isley’s conviction, the Eleventh Circuit concluded that the

district court did not abuse its discretion by not requiring the production of the

Other MNAs because Isley did not show that the outcome of her trial would have

been different. (App. A at 16.) According to the Eleventh Circuit, the Other

MNAs were not material “because the evidence failed to establish that she relied

upon any MNA in making the coding decisions charged in the [I]ndictment.”

(App. A at 16-17.) The Eleventh Circuit also said:

Isley believed that the other MNAs would impeach the Government witnesses by demonstrating confusion and ambiguity in the application of the billing codes to the subject products. Even if she could show confusion in the industry, Isley did not demonstrate that any such confusion affected her decisions because she did not rely upon the coding decisions in the industry.

(App. A at 17.) Having determined that the Other MNAs were not material

because Isley did not rely upon them, the Eleventh Circuit affirmed the district

court’s denial of Isley’s Motion for New Trial. (App. A at 18.)

The Eleventh Circuit also affirmed the district court’s denial of Isley’s

Motion for New Trial because it agreed with the district court’s conclusion that the

Other MNAs were inadmissible because they would have been nothing more than

cumulative impeachment evidence. (App. A at 17-18.) In doing so, the Eleventh

10

Circuit rejected Isley’s argument that even if the Other MNAs were inadmissible,

they were still material because they were likely to lead to the discovery of

admissible evidence. (Id.) The Eleventh Circuit did not specifically address the

district court’s conclusion that even though the Other MNA’s were relevant to

Isley’s defenses, it would be too burdensome and costly for the Government to

produce them. (App. A.)

REASONS FOR GRANTING THE WRIT

A writ of certiorari is warranted in this case because a conflict exists among

the Circuit Courts of Appeals as to whether Brady requires the requested, favorable

evidence to be admissible before it can be found to be material, where that

inadmissible evidence is likely to lead to the discovery of admissible evidence.

The majority of Circuits have answered that question in the negative; they require

the Government to produce even inadmissible evidence where that evidence is

likely to lead to the discovery of admissible evidence. Because that conflict is now

ripe for resolution, this Court should issue a writ of certiorari to resolve the conflict

in favor of the majority and hold that under Brady, the Government must produce

any requested, exculpatory evidence, admissible or not, where that evidence is

likely to lead to the discovery of admissible evidence.

This Court should also issue a writ of certiorari in this case to make it clear

that the Government’s production obligation under Brady is absolute and that the

11

cost and burden of producing Brady material is not an excuse for its suppression by

the Government. Because the district court found the Other MNAs to be relevant

to Isley’s defenses, that should have ended the inquiry; the Government should

have been required to produce them. By excusing the Government from producing

the Other MNAs because of the cost and burden – a cost and burden of the

Government’s own making – the district court, as affirmed by the Eleventh Circuit,

has imposed the very good faith analysis upon the Government’s production

obligation that this Court rejected in Brady. Because this result is contrary to the

due process concepts expressed by Brady and its progeny, a writ of certiorari

should issue in this case.

A. THE COURT SHOULD ISSUE A WRIT OF CERTIORARI TO RESOLVE THE CONFLICT IN THE FEDERAL CIRCUITS AS TO WHETHER A BRADY VIOLATION OCCURS WHEN THE GOVERNMENT SUPPRESSES INADMISSIBLE EVIDENCE THAT IS LIKELY TO LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE

The Circuits are split as to whether the Government has a duty to produce

exculpatory information that is, in and of itself, inadmissible if that inadmissible

evidence is likely to lead to the discovery of admissible evidence. See Ellsworth v.

Warden, 333 F. 3d 1, 5 (1st Cir. 2003) (describing the split among the Circuits).

This Court should resolve this conflict and conclude that the Government has a

duty under Brady to produce information, even if it might ultimately be determined

12

to be inadmissible, so long as that information is likely to lead to the discovery of

admissible evidence.

In this case, the Eleventh Circuit concluded that the Government was not

required to produce the Other MNAs because they were inadmissible and,

therefore, not material. In doing so, the Eleventh Circuit rejected Isley’s argument

that under Brady, the Government must produce even inadmissible evidence where

that evidence is likely to lead to the discovery of admissible evidence. The

Eleventh Circuit’s rejection of Isley’s argument in this regard is consistent with

decisions by the Fourth and D.C. Circuits, which concluded that inadmissible

evidence is immaterial as a matter of law for Brady purposes. See Hoke v.

Netherland, 92 F.3d 1350, 1356 n.3 (4th Cir.) (ruling that inadmissible evidence is,

as a matter of law, “immaterial” for Brady purposes), cert. denied, 519 U.S. 1048,

117 S. Ct. 630 (U.S. 1996); U.S. v. Derr, 990 F.2d 1330, 1335-36 (D.C. Cir. 1993)

(concluding that because the suppressed information would not have been

admissible, its suppression was not a Brady violation).

In direct conflict, the First, Second, Fifth, Sixth, Eighth, and Ninth Circuits

have stated that the Government has a duty to produce exculpatory information

that is, in and of itself, inadmissible, so long as that evidence is likely to lead to the

discovery of admissible evidence.3 See United States v. Sipe, 388 F.3d 471, 485

3 Other panels of the Eleventh Circuit have also stated that the Government is obligated under Brady to produce inadmissible evidence that is likely to lead to the

13

(5th Cir. 2004) (concluding that inadmissible evidence can still be material under

Brady if it would lead to the discovery of admissible evidence); Ellsworth v.

Warden, 333 F.3d 1, 5 (1st Cir. 2003) (concluding that the withholding of

inadmissible exculpatory evidence is a Brady violation where that withheld

evidence would have, or could have, led to the discovery of material admissible

evidence); United States v. Gil, 297 F.3d 93, 104 (2d Cir. 2002) (concluding that

inadmissible evidence may be Brady material if it could lead to admissible

evidence); Coleman v. Calderon, 150 F.3d 1105, 1116-17 (9th Cir.) (“To be

material [under Brady], evidence must be admissible or must lead to admissible

evidence.”), rev’d on other grounds, 525 U.S. 141, 119 S. Ct. 500 (1998); United

States v. Phillip, 948 F.2d 241, 249-50 (6th Cir. 1991) (noting that inadmissible

evidence may be Brady material if it would lead to the discovery of admissible

evidence), cert. denied, 504 U.S. 930, 112 S. Ct. 1994 (1992); see also Madsen v.

Dormire, 137 F.3d 602, 604 (8th Cir.) (noting that inadmissible evidence is not

evidence at all, but then asking whether its link to admissible evidence is more than

mere speculation), cert. denied, 525 U.S. 908, 119 S. Ct. 247 (1998).

discovery of admissible evidence. See e.g., Bradley v. Nagle, 212 F.3d 559, 567 (11th Cir. 2000) (“A reasonable probability of a different result is possible only if the suppressed information is itself admissible evidence or would have led to admissible evidence.” (citing Spaziano v. Singletary, 36 F.3d 1028, 1044 (11th Cir. 1994)), cert. denied, 531 U.S. 1128, 121 S. Ct. 886 (2001); Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999) (“Inadmissible evidence may be material if the evidence would have led to admissible evidence.”).

14

This Court’s decision in Wood v. Bartholomew, 516 U.S. 1, 116 S. Ct. 7

(1995) does not resolve this conflict. As the Fifth Circuit noted in Felder v.

Johnson, how to deal with Brady claims related to inadmissible evidence is a

matter of some confusion in the federal courts. 180 F.3d 206, 212 (5 th Cir.), cert.

and reh. denied, 528 U.S. 1067, 120 S. Ct. 630 (1999). The Fifth Circuit stated:

In Wood v. Barhtolomew, the Supreme Court did not declare squarely whether inadmissible information could be material evidence under Brady, even though the circuit courts had already developed various approaches to the question. The Court first noted that polygraph results, being inadmissible, were “not ‘evidence’ at all” and “could have no direct effect on the outcome of trial.” 516 U.S. at 6, 116 S.Ct. at 10. It proceeded, however, to discuss the merits of the Ninth Circuit’s attempt to “get around this problem,” and concluded that “mere speculation” about whether the information could have led defense counsel to “additional evidence that could have been utilized” did not meet “the standards that we have established.” Id.

Reactions to Wood have been as varied as the pre-Wood jurisprudence. Some courts read Wood to mean inadmissible information cannot be material under Brady. See Hoke v. Netherland, 92 F.3d 1350, 1356 n. 3 (4th Cir. 1996) (inadmissible statements are immaterial “as a matter of law”); United States v. Montalvo, 20 F. Supp.2d 270, 277 (D. P.R. 1998). One Circuit has concluded that Wood did not affect its practice of allowing inadmissible evidence to be material if it “would have led to admissible evidence.” See Wright v. Hopper, 169 F.3d 695, 703 & n. 1 (11th Cir. 1999). Another has followed Wood’s methodology, noting inadmissible evidence is “not ‘evidence’ at all,” and then asking whether a link to admissible evidence is based on more than “mere speculation.” See Madsen v. Dormire, 137 F. 3d 602, 604 (8th Cir.), cert. denied, 525 U.S. 908, 119 S. Ct. 247, 142 L.Ed.2d 203 (1998). Still another has done the same as the Fifth Circuit and hewed to its pre-Wood practice without discussing Wood’s potential relevance. See Coleman v. Calderon, 150 F.3d 1105, 1116-17 (9th Cir.), rev’d on other grounds, 525 U.S. 141, 119 S. Ct. 500, 142 L.Ed.2d 521 (1998) (per curiam).

15

Felder, 180 F.3d at 212 n.7. This post-Wood confusion, which has now ripened

into a true Circuit conflict, should be resolved so that defendants’ due process

rights and the Government’s Brady-related obligations are clear with respect to the

production of exculpatory evidence that may itself be inadmissible, but that would

lead to the discovery of admissible, material evidence.

The need for that resolution is all the more important in this case. Even if

the Other MNAs were inadmissible as cumulative impeachment evidence, which

Isley denies, they would certainly have led to the discovery of other material

witnesses, including but not limited to medical necessity reviewers and DME

suppliers from the other regions that used or approved the same codes for the same

products for which Isley was being prosecuted. There is nothing speculative about

this fact. In addition, there is no doubt that those witnesses would have had to

testify at trial that they either used or approved the same codes for the same

products during the same time frame as Isley. It is also likely, and not speculative,

that the Other MNAs and the witnesses to which they led would have permitted the

defendant to conduct other discovery that may have led to the discovery of

communications between the medical necessity reviewers (the Government’s

agents) and DME suppliers regarding the propriety of using those codes for those

products. Indeed, there was evidence of those types of communications related to

the Orthoscript MNAs. They may even have led to express statements from those

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reviewers that the DME suppliers were authorized to use those codes for those

products at that time – even though the true nature of those products was revealed

in the medical necessity information submitted to the DMERC. Thus, it is not

mere speculation that the production of the Other MNAs would have led to the

discovery of other admissible, relevant evidence. Indeed, the district court ruled

that the Other MNAs were relevant to Isley’s defenses. (App. C.) Consequently,

the Government’s failure to produce the Other MNAs upon Isley’s request for

them violated Isley’s due process rights. As a result, a writ of certiorari is

appropriate in this case.

A writ of certiorari is also warranted because the Eleventh Circuit’s

threshold conclusion that the Other MNAs were not material under Brady because

Isley did not rely upon them is incorrect.4 Reliance is not an element of a Brady

violation, nor should it be. Likewise, reliance is not required to show the

materiality of the information the Government suppressed. Indeed, in Brady, the

defendant did not even learn about the suppressed statement by a third party

admitting guilt until after he was tried, convicted, sentenced, and his conviction

had been affirmed on appeal. 373 U.S. at 84. Thus, the defendant need not even

4 At this juncture, Isley does not quarrel with the Eleventh Circuit’s conclusion that the evidence showed she did not rely upon any particular MNA in making her coding decisions; she simply disputes that she had to have relied upon the Other MNAs before the Government was required to produce them under Brady.

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be aware of the suppressed evidence, much less rely upon it, before a Brady

violation can be found. See id.

Here, it is undisputed that the Government (through the other region’s

DMERCs) had untold numbers of MNAs in its possession pertaining to the very

codes at issue in the Indictment. (See App. A at 13 & n.15.) Region A reported

that it had 2000 MNAs, Region B reported that it had 812 MNAs, and Region D

reported that it had between 1500 and 2000 MNAs. (See id. at 13.) Even if some

of the Other MNAs pertained to codes other than those charged in the Indictment,

it cannot be disputed that the other Regions represented that they had a significant

number of MNAs specifically related to the codes and products for which Isley

was to be tried.

To the extent the other Regions possessed MNAs related to the very codes

charged in the Indictment, it is undisputed that those MNAs were favorable and

exculpatory in that they would provide at least some direct evidence that Isley’s

coding choices were either correct, objectively reasonable, or the result of a

reasonable mistake – the very same mistake made by other DME suppliers and

professional medical necessity reviewers in the other regions. The district court

found this to be the case. (App. C.) And that finding is true whether Isley relied

upon the Other MNAs or not.5 Also, because reliance is not a requirement under

5 Even the district court recognized that Isley’s defenses were not all dependent upon reliance. (See Tr:10:1762; Dkt. 245.) One of the instructions the court gave

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Brady, the Other MNAs, which would have led to the discovery of other

admissible evidence, were material whether Isley relied upon them or not.

The Government’s own actions demonstrate just how material the Other

MNAs actually were. Pretrial, the Government dismissed the L2114 and L2116-

related charges from the original indictment. (Compare Dkt. 1 with Dkt. 146.)

The Government dropped those charges because the majority of Region C MNAs

that had been produced by that date pertained to those two codes, L2114 and

L2116. (Dkt. 212 at 18-19.) Thus, the Government appears to have been

concerned that the L2114 and L2116-related MNAs would undermine its

prosecution of the original indictment and produce acquittal at least as to those two

codes. It also appears to have been concerned that an acquittal as to those codes

might create reasonable doubt in the juror’s minds as to the other codes charged.

Given the Government’s own reaction to the Region C MNAs, a reasonable

probability exists that the jury would have viewed the Other MNAs related to the

codes charged in the Indictment the same way the Government viewed the L2114

to the jury specifically acknowledged that the Government had the burden of proving, beyond a reasonable doubt, that Isley’s statements or claims “were not a reasonable interpretation of any applicable codes, rules or regulations.” (Id.) In accordance with that instruction, the Other MNAs would have shown that the DMERC’s and DME suppliers throughout the United States interpreted and applied the same codes for the same products during the same time frame in the exact same manner as Isley. Therefore, the jury could have concluded that Isley’s interpretation of the product codes vis a vis the products at issue was objectively reasonable. The Other MNAs would establish this fact whether Isley relied upon them or not.

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and L2116 MNAs from Region C. This is true whether Isley relied upon any of

the MNAs in making her coding choices or not. Thus, the Eleventh Circuit’s

threshold conclusion that the Other MNAs were not material because Isley did not

rely upon them was in error. Indeed, had the Other MNAs been produced, they

would have put the whole case in such a different light as to undermine the

confidence in the verdict. See Kyles, 514 U.S. at 434 (citing United States v.

Bagley, 473 U.S. 667, 668, 105 S. Ct. 3375 (1985)). This is particularly true when

the Other MNAs are considered in light of the other admissible evidence to which

the Other MNAs would have led.

Moreover, by requiring a defendant to rely upon the suppressed-yet-

favorable evidence before a Brady violation can be found, the Eleventh Circuit

weakened the Government’s production obligation under Brady thereby eroding

the due process rights of defendants under the United States Constitution. See

Brady, 373 U.S. at 87 (holding that suppression by the prosecutor of evidence

favorable to an accused upon request violates the Due Process Clause where the

evidence is material either to guilt or punishment, irrespective of the good or bad

faith of the prosecutor); see also United States v. Bagley, 473 U.S. 667, 676, 105 S.

Ct. 3375 (1985) (extending Brady to impeachment evidence). Therefore, this

Court should issue a writ of certiorari to the Eleventh Circuit to avoid the improper

erosion of defendants’ due process rights under the United States Constitution.

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Indeed, Brady’s ultimate goal is to ensure that the defendant has full access

to information that may bear upon her guilt or punishment. According to this

Court:

The principle of Mooney v. Holohan6 is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial for the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: “The United States wins its point whenever justice is done its citizens in the courts.” A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not “the result of guile,” to use the words of the Court of Appeals.

Id. at 87-88 (footnote and citation omitted). In this case, by not producing the

Other MNAs upon Isley’s request, the prosecutor became an architect of a

proceeding that does not comport with the standards of justice this Court has

expressed. This is because, even if we accept the Eleventh Circuit’s conclusion

that they were inadmissible, the Other MNAs were likely to have led to the

discovery of other evidence that would tend to exculpate Isley or may have

reduced Isley’s penalty to the extent the jury may have concluded that at least as to

some of the codes charged in the Indictment, the codes were vague or ambiguous

in relation to the products at issue. Because a Circuit conflict exists as to this

6 294 U.S. 103, 55 S. Ct. 340, 79 L.Ed. 791 (1935).21

issue, however, this Court should issue a writ of certiorari to resolve the first

question presented.

B. THE GOVERNMENT’S OBLIGATION UNDER BRADY IS NOT EXCUSED BECAUSE THE PRODUCTION OF THE FAVORABLE EVIDENCE IS COSTLY OR BURDENSOME

This Court should also issue a writ of certiorari to answer the second

question presented. In Brady, this Court held that “the suppression by the

prosecution of evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S. Ct. at 1196-97.

The Government’s burden under Brady is absolute. United States v. Johnson, 2007

U.S. Dist. LEXIS 41392, *17 (D. Kan. 2007). The fact that it may be burdensome

to produce Brady evidence is no excuse; it must be supplied. United States v.

Countryside Farms, Inc., 428 F. Supp. 1150, 1154 (D. Utah 1977). Consequently,

in deciding what evidence should be produced, the prosecution must resolve all

doubts in the defendants’ favor. Id.; see also United States v. Steffen, 641 F.2d

591, 594 (8th Cir. 1981).

To allow a prosecutor to decide not to produce favorable, material evidence

merely because it would be too expensive or too burdensome to produce would be

to impose a good faith requirement on Brady that this Court expressly rejected.

See Brady, 373 U.S. at 87. The prosecutor may believe in good faith that the

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production would be too costly or burdensome, but that does not excuse the

suppression of evidence under Brady. Rather, under those circumstances, the

Government must choose between prosecution and production.7 This is

particularly true where, as here, the district court expressly found the Region C

materials to be exculpatory and concluded that the Other MNAs were relevant to

Isley’s defenses. (App. C.) Therefore, this Court should issue a writ of certiorari

to explain that the Government is not excused from producing Brady material

merely because it is too costly or burdensome.

7 Although Isley acknowledges that there may be a situation where the cost or burden of production may substantially outweigh the benefit of that production, this case was far from that point. Even if it would have taken several months and hundreds of thousands of dollars to produce the Other MNAs, see App. C, this cost and burden does not outweigh Isley’s right to a fair trial. Isley’s very liberty was at stake. Had this been nothing more than a complex commercial case between private corporations, this discovery would have been ordered notwithstanding the cost and burden. As a result, the cost and burden to the Government would have to be substantially higher before the Government should be permitted to criminally prosecute a defendant while holding back evidence that is favorable and material to the defendant on the ground that it is too expensive or too burdensome to produce.

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CONCLUSION

Given all of the above, this Court should grant certiorari, consider this case

on the merits, and answer the questions presented. Consequently, this Petition for

a Writ of Certiorari should be granted.

Respectfully submitted,

_____________________Robert F. SchroederCounsel of RecordOne Securities Centre3490 Piedmont Road, N.E.Suite 1050Atlanta, Georgia 30305(404) 842-0131(404) 842-9750 (facsimile)

Counsel for Petitioner

Dated: June 4, 2010

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