Wednesday, March 23, 2022 7:47:00 PM
This link breaks down the charges for all: https://www.justice.gov/usao-ndca/pr/new-charges-filed-against-medical-technology-company-president-and-two-others-alleged
I believe Davila will not dismiss the charges due to the DOJ rebuttal listed below. But even if he does that only talks about the EKRA payments/kickbacks. There's still the matter of conspiracy to defraud/health care fraud. We will see soon how it plays out.
The elements of a conspiracy under California criminal law are:
the defendant agreed with another person, or persons, to commit a crime, one of the parties to the agreement took an overt act to further or advance that agreement, and the overt act was committed in California.
The most damming evidence is they have all other parties that have plead guilty admitting that they agreed to the crime (w/Dr. Schena). They agreed that they defrauded the government. They have admitted to using medical numbers without seeing patients. They admitted to bundling unnecessary allergy tests to advance the agreement. They admitted to sham contracts.
So if they get the EKRA counts thrown out, that indeed would be a good thing for DR Schena, and maybe a reduction for Haje/Jablonski but the most serious counts will still be there.
DOJ Rebuttal to Dismiss:
Here, defendant contends that since the illegal kickbacks were paid to marketers who were not working with individual patients, the kickbacks were not paid to induce referrals of individuals to Arrayit. Even if defendant was correct that EKRA only reaches kickbacks paid to marketers working directly with patients —and he is not—he ignores that although the Arrayit marketers were not workingdirectly with individual patients, the kickback payments caused marketers to transmit false representations to medical professionals (some of whom were unwitting and others of whom werewitting), who, in turn, were working directly with patients and referred such individuals to Arrayit. Superseding Indictment, ECF No. 53, ¶¶ 41–43, 45, 47. Section 2 punishes anyone who causes acriminal act because no crime would take place without his or her participation. United States v. Causey, 835 F.2d 1289, 1291–92 (9th Cir. 1987). Here, defendant’s argument is in error because,among other things, he caused physicians to refer individual patients to Arrayit for expensive and medically unnecessary tests; the fact that defendant indirectly caused these referrals by making kickback payments to marketers, who then induced the referrals from the physicians, is of little import
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