Case 2:18-cr-00116-MHT-WC Document 123 Filed 09/24/18 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

UNITED STATES OF AMERICA, )

)
vs. ) CR. NO. 2:18-cr-116-MHT-WC
)
G. FORD GILBERT, )
MARTIN J. CONNORS, and )
RANDALL M. DAVIS, )
)
Defendants. )

MOTION OF RANDALL M. DAVIS

TO DISMISS INDICTMENT FOR PROSECUTORIAL MISCONDUCT

Comes Now Defendant Randall M. Davis, by and through counsel, and moves to

dismiss the indictment returned against him on the ground that all available evidence

supports a conclusion that the indictment was procured through multiple instances of

flagrant, unconscionable, and prejudicial prosecutorial misconduct before the grand jury in

which AUSA’s Jonathan Ross and Josh Wendell took advantage of their special position of

trust thereby impairing the grand jury’s integrity as an independent body. Based on more

specific description of the conduct involved and the authorities cited hereinafter, the

indictment against Defendant Davis in this matter is due to be dismissed.

FACTS

A Grand Jury empaneled in the Middle District of Alabama returned an indictment

against G. Ford Gilbert (“Gilbert”), Martin J. Connors (“Connors”), and Jack D. Williams

(“Williams”) on March 14, 2018, charging them with conspiracy to commit an offense

against the United States, bribery in connection with a program receiving federal funds,
 Case 2:18-cr-00116-MHT-WC Document 123 Filed 09/24/18 Page 2 of 24

conspiracy to commit honest services wire fraud, honest services wire fraud scheme, honest

services wire fraud, health care fraud and/or conspiring or attempting to do so, wire fraud,

and interstate travel in aid of racketeering. [Doc. 1]. As the government’s final grand jury

witness, USPI J.D. Tynan (“Tynan”), the case agent, testified on March 14, 2018.1

The transcript of the March 14, 2018, grand jury testimony of Tynan was produced

to defense counsel as part of the government’s Second Production on June 12, 2018, at USA

007990-008007.2 On page 17 of the Tynan grand jury transcript at lines 7 and 8, and again

at lines 20 and 21, appear the following, “A discussion was held off the Record.” USA

008006.

Upon review of the Tynan grand jury transcript, counsel for Defendant Gilbert

immediately requested production from the government of the audio recording of the Tynan

grand jury testimony. The government refused to provide any audio recording of the grand

jury proceedings requested by counsel for Defendant Gilbert. Ultimately, on August 8, 2018,

the government produced the unedited version of the March 14, 2018, Tynan grand jury

1
The government previously presented the grand jury testimony of G. Ford Gilbert
on April 26, 2017. Representative Micky Hammon (unindicted co-conspirator and
cooperating witness) testified before the grand jury on March 14, 2018, before USPI
Tynan testified. Subsequent to the return of the first indictment on March 14, 2018, the
government presented the testimony of Representative Ron Johnson (unindicted co-
conspirator) to the grand jury on June 27, 2018. USPI Tynan testified again before the
grand jury on July 24, 2018, the date of the return of the superseding indictment in this
case.
2
The numbers referred to are the Bates numbers appearing at the bottom center of
each page produced in discovery by the government.

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transcript which was marked “Original” in the top right corner of the first page of the

transcript.3 The previously-produced edited version of the Tynan grand jury transcript was

marked “Copy” on the first page.

The edited version of the Tynan grand jury testimony produced to defense counsel by

the government on June 12, 2018, sets out the following exchange between AUSA Jonathan

Ross and member(s) of the grand jury at pages 16-17:

GRAND JUROR: I realize this is probably here nor there.

MR. ROSS: Yes, ma’am.

GRAND JUROR: But this whole thing could have been avoided if they had
just called BlueCross up before they even built the clinic and said this is what
we’re going to be doing, will this be covered under this code?

MR. ROSS: I mean –

GRAND JUROR: They could not have done that?

(A discussion was held off the Record.)

MR. ROSS: Yes, ma’am?

GRAND JUROR: So the main conspirators within this case here is Mr. Gilbert
and the one we just listened to?

MR. ROSS: He’s not charged.

GRAND JUROR: No, he’s not charged, but he -

ROSS: But he is –

3
USA 031443-031463.

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GRAND JUROR: played a big role?

MR. ROSS: He is what’s called an unindicted co-conspirator.

GRAND JUROR: They used him.

(A discussion was held off the Record.)

MR. ROSS: Anything else? Y’all good?

Okay.

***END OF PROCEEDINGS*** 4

Between the production by the government of the edited transcript on June 12, 2018,

and the production by the government of the unedited transcript on August 8, 2018, the grand

jury returned a superseding indictment (which dropped Defendant Jack D. Williams from the

case and added new Defendant Randall M. Davis (“Davis”)) on July 24, 2018, charging

Gilbert, Connors, and Davis with conspiring to commit offenses against the United States,

bribery in connection with a program receiving federal funds, interstate travel in aid of

racketeering, and making a false statement to a federal officer.5 There were no charges of

health care fraud, honest services fraud, or conspiracy or attempt to commit those offenses.6
4
Bates no. USA 008005-008006. [Emphasis supplied].
5
Each of the defendants was charged in the conspiracy count (Count One), Gilbert
was charged separately in four counts with bribery in connection with a program
receiving federal funds (Counts 2, 3, 4, and 5) and in two counts with violating the travel
act (Counts 6 and 7), Davis was charged separately in one count with violating the travel
act (Count 8), and Connors was charged separately in one count with making a false
statement (Count 9).

6
On May 24, 2018, Davis received a subpoena to testify before the grand jury on
May 30, 2018, at 10:00 a.m. The subpoena to testify did not contain an Advice of Rights

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The unedited version of the March 14, 2018, Tynan grand jury testimony produced

to defense counsel by the government on August 8, 2018, sets out the following exchange

between AUSA Jonathan Ross and member(s) of the grand jury at pages 16-19:

GRAND JUROR: I realize this is probably here nor there.

MR. ROSS: Yes, ma’am.

GRAND JUROR: But this whole thing could have been avoided if they had
just called BlueCross up before they even built the clinic and said this is what
we’re going to be doing, will this be covered under this code?

MR. ROSS: I mean --

GRAND JUROR: They could not have done that?

MR. ROSS: That’s -- he doesn’t know the answer to that.

GRAND JUROR: Yeah

MR. ROSS: And I’ll tell you this is not well, no, actually I’m trying to how to
say this. Our position is that Trina Health is not a legitimate enterprise,
period. Okay. They’re not -- I don’t know if that’s come across yet. They are
snake it’s snake oil. Does that make sense?

GRAND JUROR: Oh.

MR. ROSS: I mean, it’s sort of it’s

GRAND JUROR: Yeah.

form directed to Davis as a target or subject of the investigation, as required by DOJ

policy set out in Section 9-11.151, U.S. Attorney’s Manual. On June 1, and June 20,
2018, Davis received grand jury subpoenas for production of documents “ ... relating to
Trina Health and any affiliated entity, HB415 introduced during the 2016 Alabama
Legislature and CP Holmes” [sic] and “all records in reference to Phil Kleas and Kleas
Financial Interest”.

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MR. ROSS: There’s this whole they covered elsewhere, they you know, that --
that’s

GRAND JUROR: It’s not Jackson Hospital who just made a mistake? 7

GRAND JUROR: Yeah.

MR. ROSS: Yeah. It’s these people out to make money with this snake oil.8

7
In an email dated September 7, 2018 (after the Status Conference before
Magistrate Judge Wallace Capel), AUSA Joshua Wendell disclosed to defense
counsel that he was present during the March 14, 2018, grand jury proceedings and
that this line of the transcript was incorrectly attributed to a Grand Juror when in
fact, this line of the transcript should have been attributed to him. AUSA Wendell
failed to correct this error for an entire month after the unedited transcript was
produced to defense counsel. It was only after Magistrate Judge Capel ordered the
production of the audio recordings of the off-the-record discussions in the grand
jury that the government saw fit to disclose the erroneous speaker attributions in
the transcript. Since review by defense counsel of the audio recordings once they
were produced by the government would have easily revealed the true speakers,
the question whether the court’s order requiring disclosure of the audio recordings
was the source of AUSA Wendell’s new-found candor with defense counsel in his
September 7, 2018, email must be considered, particularly in light of the fact that
the government waited for almost two months before it disclosed the unedited
version of Tynan’s March 14, 2018, grand jury testimony. Then, on September 12,
2018, AUSA Wendell disclosed that the unedited transcript that he represented to
the Court was accurate in an on-the-record status conference with Magistrate
Judge Capel on September 7, 2018, and which transcript was dated March 30,
2018, and presumably was in his possession since that date, was in fact not
accurate because remarks that he made in the grand jury were incorrectly attributed
to a Grand Juror and to AUSA Ross. [Doc. 118–Notice to Correct Unintended
Misrepresentation]. Indeed, for aught that appears in the unedited transcript,
AUSA Wendell is not even present during Tynan’s grand jury testimony.

8
Similar to Footnote 6, this line of the transcript was incorrectly attributed to
AUSA Jonathan Ross when in fact this line of the transcript should have been attributed
to AUSA Joshua Wendell.

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GRAND JUROR: I -- oh, I understand -- I understand that, they had a financial

they were expecting some kind of financial. . .

MR. ROSS: What I’m saying is that I think that they knew BlueCross
BlueShield wasn’t going to cover it. Okay. They were trying their plan
was this unbundling that I talked about.

GRAND JUROR: Oh.

MR. ROSS: That they were -- their problem was that BlueShield BlueShield --
BlueCross BlueShield caught it.

GRAND JUROR: I’m with you.

GRAND JUROR: Does he know that this had not been accepted by
insurance companies out in California, BC BCBS in California had turned
this down? 9

MR. ROSS: I don’t really need to go into that.

GRAND JUROR: All right.

GRAND JUROR: I’m with you.

MR. ROSS: Yeah. Yes, ma’am?

GRAND JUROR: So it hadn’t been accepted anywhere?

GRAND JUROR: Probably not.

MR. ROSS: I don’t want to get into --

GRAND JUROR: Even though he said that he had won all these cases
basically, it was not the case?

9
Similar to Footnote 6, this line of the transcript was incorrectly attributed to a
Grand Juror when in fact this line of the transcript should have been attributed to AUSA
Joshua Wendell.

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MR. ROSS: There -- there are some --

GRAND JUROR: Okay .

GRAND JUROR: These are the facts.

USA 031443-031463. [Emphasis supplied].

Defense counsel met with USA Louis Franklin on September 19, 2018, to discuss the

issues raised by the government’s production of an edited transcript of the case agent’s grand

jury testimony. Defense counsel explained, as stated in open court on September 7, 2018,

that a reasonable inference from the circumstances surrounding the production of the edited

transcript as to how that transcript came to exist is that it was produced on the suggestion or

direction of the government to the court reporter. It is no coincidence that the portions of the

transcript which were edited out of the transcript initially produced by the government

contain several examples of improper, derogatory, and prejudicial statements to the grand

jury attributed to AUSA Ross (it turned out that AUSA Wendell also made some of these

statements). Further, it defies credibility to suggest that the court reporter created the edited

transcript of USPI Tynan’s testimony removing only those portions of the transcript in which

improper, derogatory, and prejudicial statements to the grand jury were made by the AUSA’s

involved on her own initiative and without any government suggestion or direction to do so.

The government declined to explain how or why the edited transcript was created.

No one has spoken to the court reporter on behalf of defense counsel about how or

why the edited version of the Tynan grand jury testimony was prepared because the court

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reporter is covered by the provisions of Fed.R.Crim.P. 6(e)(2)(B)(iii). However, whatever

explanation the government provides, the court reporter’s testimony will be helpful on the

factual issues because it appears from the edited transcript that it was prepared by the same

court reporter who prepared the unedited transcript. Defense counsel have no information

as to whether any representative of the government has communicated with the court reporter

about these issues since they arose in June, 2018. To provide a complete picture regarding

how and why the edited transcript came to exist, it is necessary for the Court to receive

testimony from the court reporter.

But, to be clear, the issue is not, as AUSA Wendell stated in the Notice to Correct

Unintended Misrepresentation [Doc. 118], whether the transcript is flawed because it did not

contain “... an explicit request by the AUSA involved in the grand jury proceeding to go off-

the-record.” [Doc. 118 at 1]. In fact, the absence in the transcript or on the audio recording

of any explicit request by the AUSA’s to go off-the-record appears to make the situation

much worse.

If there were, in fact, two off-the-record discussions as represented on page 17 of the

edited transcript, the court reporter would not have stenographically written what was said

during these two intervals. And usually, during a true, off-the-record discussion, the court

reporter even stops the audio recording device. The fact that the unedited version of the

transcript contains approximately two pages of dialogue between members of the grand jury

and the AUSA’s that was omitted from the edited version of the Tynan testimony can only

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mean that there never was a true, off-the-record discussion. What appears to be the case is

that the government falsely represented that there was an off-the-record discussion on March

14, 2018, when, in fact, the discussion was on-the-record all along and only later, after the

transcript was produced on March 30, 2018, by the court reporter and reviewed by the

government, was the transcript edited to cover up the improper, derogatory, and prejudicial

statements made to the grand jury about the defendants by the AUSA’s involved. The

inappropriate statements made by the AUSA’s to the grand jury prejudiced each of the

defendants because all of them are accused of conspiring together to commit offenses against

the United States. Even though the remarks made by the AUSA’s were directed primarily

at Gilbert and Trina Health (and its affiliates), the prejudicial effect of these remarks worked

to the detriment of Connors and Davis because they are alleged to be working with Gilbert

to accomplish a common plan or scheme.

But what is inescapable here is that, if the cover up of the edits to the Tynan transcript

happened as it appears and as described hereinabove, then the defense has demonstrated that

the prosecutors involved in this matter intentionally acted to the prejudice of Defendants’

rights under the Due Process clause of the 5th and 14th Amendments to the United States

Constitution.

In addition, the substance of what the AUSA’s said to the grand jury about Gilbert and

Trina Health caused the grand jury to believe that Gilbert and Trina Health and those who

were trying to assist Gilbert and Trina Health were bad people who deserved to be indicted.

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For example, the AUSA’s told the grand jury that (1) Trina Health is not a legitimate

business, (2) the medical procedure involved used in the treatment is “snake oil,” (3) the

medical procedures used in Trina clinics were never approved for payment by medical

insurance or Medicare, (4) Davis and Connors had something to gain financially from the

success of the Trina clinics, and (5) Micky Hammon was an unindicted co-conspirator with

Gilbert, Connors, and Davis.

Further, the AUSA’s presented false testimony to the grand jury that (1) Gilbert

agreed to pay off Micky Hammon’s loan with Regions Bank, (2) Gilbert communicated to

Blue Cross Blue Shield that he “had the necessary votes” to get HB415 passed, (3) Davis

agreed to try to find investors in Trina clinics in return for a five percent stake in the

business, (4) Davis sent an email to Chuck Burbage in May, 2014, saying that he hoped they

would make millions on this deal, (5) Gilbert offered to give Davis a finder’s fee as a bribe

and a gratuity if he sold a franchise for a Trina clinic, (6) Gilbert was trying to corruptly

influence Davis, (7) Davis was working to convince Blue Cross Blue Shield to reverse its

position not to cover treatments provided in Trina clinics to help his friend, Micky Hammon,

(8) Connors knew that Gilbert had given things of value to Hammon and Davis, and (9)

Gilbert agreed to make Hammon and Davis resellers of territorial rights for a Trina clinic in

exchange for a finder’s fee from those investors.

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APPLICABLE LAW

In Bank of Nova Scotia v. U.S., 487 U.S. 250 (1988), the Court held that a district

court may not exercise its supervisory power to dismiss an indictment for prosecutorial

misconduct in the absence of prejudice to the defendant. In this circumstance, prejudice

focuses on whether the prosecutorial misconduct lead to the indictment of the defendant or,

if there is grave doubt that the decision to indict was free from the substantial influence of

the misconduct. See, U.S. v. Mechanik, 475 U.S. 66 (1986) (O’Connor, J., concurring

opinion).

Federal courts may exercise their supervisory powers to remedy violations of

recognized rights, to protect the integrity of the federal courts, and to deter illegal conduct

by government officials. U.S. v. Hastings, 461 U.S. 499, 505 (1983). However, the

possibility that a witness may have given false testimony before the grand jury does not

automatically vitiate an indictment based on that testimony; to dismiss an indictment the

district court must also find an abuse of the grand jury process such as perjury or government

misconduct. U.S. v. Hyder, 732 F.2d 841, 845 (11th Cir. 1984); U.S. v. Sullivan, 578 F.2d

121, 124 (5th Cir. 1978).

In U.S. v. Hogan, 712 F.2d 757 (2d Cir. 1983), the prosecutor characterized Hogan

to the grand jury as a “real hoodlum” who should be indicted “as a matter of equity,” and

proceeded to present hearsay testimony to the effect that Connecticut police officials thought

Hogan had committed crimes wholly irrelevant to the alleged drug transaction then under

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federal investigation. The Court held that the impartiality and independent nature of the

grand jury process was seriously impaired by the AUSA’s argument that Hogan was a real

hoodlum who should be indicted as a matter of equity. Id. at 761. The government

accusations of Hogan’s involvement in other crimes not relevant to the investigation

appeared to the Court to have been made, not to support other charges, but in order to depict

Hogan as a bad person and thereby obtain an indictment. The Court found this tactic

“fundamentally unfair.” See, U.S. v. Ciambrone, 601 F.2d 616, 623 (2d Cir. 1979)

(prosecutor may not mislead grand jury or engage in fundamentally unfair tactics before it).

Further, the presentation of factual misstatements of important facts by government

agents to the grand jury which indicted Hogan, though arguably inadvertent, prejudiced the

defendant and impaired the grand jury’s role. Hogan, 712 F.2d at 762, citing U.S. v.

Samango, 607 F.2d 877, 882 (9th Cir. 1979) (“Although deliberate introduction of perjured

testimony is perhaps the most flagrant example of misconduct, other prosecutorial behavior,

can also cause improper influence and usurpation of the grand jury’s role.”).10

The grand jury convenes as a body of lay persons acting in secret, unfettered by

technical rules of procedure or evidence. Costello v. U.S., 350 U.S. 359, 362 (1956).

Charged to indict no one on account of prejudice or to refuse to indict anyone as a special

10
Although Hogan was decided five years before Bank of Nova Scotia, it is still
good law because the Court in Hogan found that defendant was prejudiced by the
prosecutorial misconduct involved in that case. See, U.S. v. Derrick, 163 F.3d 799, 808 n.
8 (4th Cir. 1988) (“... the court found in [Hogan] ... that the error was not harmless: ‘If
not for the clear prejudice resulting from the AUSA’s misconduct, appellants might not
have been indicted.’ 712 F.2d at 762 n. 2.”).

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favor, this bulwark against Star Chamber proceedings in England was believed so essential

to basic liberties that it was incorporated in the Fifth Amendment to the United States

Consitution. Id. That Amendment commands that “[n]o person shall be held to answer a

capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.”

Further,

Interposing a grand jury between the individual and the

government serves the intended purpose of limiting indictments
for higher crimes to those offenses charged by a group of one’s
fellow citizens acting independently of the prosecution and the
court. See Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct.
270, 273, 4 L.Ed.2d 252 (1960). In this independent position,
a grand jury performs two distinct roles. It serves as an accuser
sworn to investigate and present for trial persons suspected of
wrongdoing. At the same time–and equally important–it
functions as a shield, standing between the accuser and the
accused, protecting the individual citizen against oppressive and
unfounded government prosecution. See United States v.
Calandra, 414 U.S. 338, 342-43, 94 S.Ct. 613, 617-18, 38
L.Ed.2d 561 (1974); Branzburg v. Hayes, 408 U.S. 665, 686-87,
92 S.Ct. 2646, 2659-2660, 33 L.Ed.2d 626 (1972).

Hogan, 712 at 759.

Courts have also held that a prosecutor may not make statements or argue in a manner

calculated to inflame the grand jury unfairly against an accused. See U.S. v. Serubo, 604 F.2d

807, 818 (3d Cir. 1979). Under applicable guidelines prosecutors have an ethical obligation

strictly to observe the status of the grand jury as an independent legal body. See American

Bar Association, Standards for Criminal Justice, Standard 3-3.5 at 3•48 (2d ed. 1980);

United States Attorney’s Manual 9-11.015 (August 17, 1978). Hogan, 712 at 759.

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APPLICATION OF THE LAW TO THE FACTS

I. The prosecutors’ inappropriate and prejudicial characterization of

Defendants and Defendants’ business before the grand jury so
exceeded the limitations on the prosecutors’ conduct imposed on
them by the Due Process Clause of the 5th and 14th Amendments
to the U.S. Constitution and by ethical considerations as to warrant
dismissal with prejudice of the indictment.

The U.S. Supreme Court has held:

The United States Attorney is the representative not of an

ordinary party to a controversy, but of a sovereignty whose
obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that
justice shall be done. As such, he is in a peculiar and very
definite sense the servant of the law, the twofold aim of which
is that guilt shall not escape or innocence suffer. He may
prosecute with earnestness and vigor—indeed, he should do so.
But, while he may strike hard blows, he is not at liberty to strike
foul ones. It is as much his duty to refrain from improper
methods calculated to produce a wrongful conviction as it is to
use every legitimate means to bring about a just one.

It is fair to say that the average jury, in a greater or less degree,

has confidence that these obligations, which so plainly rest upon
the prosecuting attorney, will be faithfully observed.
Consequently, improper suggestions, insinuations, and,
especially, assertions of personal knowledge are apt to carry
much weight against the accused when they should properly
carry none.

Berger v. U.S., 295 U.S. 78, 88 (1935).

In U.S. v. Hogan, 712 F.2d 757 (2d Cir. 1983), the Court opened its opinion with the

following excerpt from the first paragraph:

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More than in other cases, the minutes of the grand jury

proceedings in this case reveal what can happen when the
prosecutor is too determined to obtain an indictment. The
temptations to cut corners, to ignore the rights of an accused,
and to toss fair play to the winds gain ascendancy. Prosecutors
presenting cases to grand juries are firmly subject to due process
limitations and bound by ethical considerations. While we fully
recognize that a court’s power to dismiss an indictment
following a conviction at trial rarely is exercised, the
prosecution so violated these limitations and obligations as to
mandate this indictment’s dismissal. Here prosecutorial zeal
only illuminates anew the insight of the old adage that the ends
cannot justify the means.

Id. at 757-58.

When we examine the remarks made by the AUSA’s in the grand jury, the first place

where the prosecutor begins his journey over the boundary of permissible, ethical conduct

appears in his answer to the following question from a grand juror:

GRAND JUROR: But this whole thing could have been

avoided if they had just called BlueCross up before they even
built the clinic and said this is what we’re going to be doing,
will this be covered under this code?

USA 031458-59. AUSA Ross responds by saying, “That’s—he doesn’t know the answer to

that.” Id. Presumably, the Grand Juror’s question was directed to the witness, USPI Tynan.

And instead of allowing Tynan to answer the Grand Juror’s question, AUSA Ross answers

that he, Tynan, does not know the answer to that question. AUSA Ross is either

demonstrating a remarkable ability to read the mind of USPI Tynan, or he is manipulating

the conversation with the Grand Juror to his next statement which is:

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MR. ROSS: And I’ll tell you this is not well, no, actually I’m
trying to how to say this. Our position is that Trina Health is not
a legitimate enterprise, period. Okay. They’re not—I don’t
know if that’s come across yet. They are snake it’s snake oil.
Does that make sense?

USA 031459.

Clearly, “our position” is the government’s position. When AUSA Ross said that it

is our position that Trina Health is not a legitimate enterprise, he did exactly what the Court

condemned in the above-quoted passage from Berger. His “improper suggestions,

insinuations, and, especially, personal knowledge,” as the sovereign’s representative, carried

much weight against the accused with the grand jury when they properly should have carried

none. Berger, 295 U.S. at 88. “After all, it is the prosecutor who draws up the indictment,

calls and examines the grand jury witnesses, advises the grand jury as to the law, and is in

constant attendance during its proceedings.” Hogan, 712 F.2d at 759.

AUSA Ross’s statement is nothing less than a statement that the government knows

that the people involved with Trina Health are criminals who deserve to be indicted for their

crimes. The use of the term “snake oil” conjures up scenes from old western movies showing

an old man shabbily attired on the back of a horse-drawn wagon selling some foul-tasting

elixir which he guarantees to a crowd gathered around his wagon that it will cure everything

from constipation to rheumatism with gullible, innocent customers willingly shelling out their

hard-earned money only to learn later, after the sales wagon had moved to the next town, that

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the product they purchased did nothing for them. Why else would AUSA Ross use such an

antiquated term?

And it is quite telling that AUSA Ross admitted in this statement that he did not know

whether this had “come across” yet to the grand jury. AUSA Ross’s statement is an

admission of little or no confidence in the effectiveness of the government’s presentation to

the grand jury. He had been investigating Gilbert and Trina Health for at least a year, maybe

more, and he did not know whether it had “come across” to the grand jury that Trina Health

is not a legitimate enterprise, and that the artificial pancreas treatment provided at Trina

clinics is “snake oil.” Because he lacked any confidence in his case, he crossed the line and

decided affirmatively to testify to the grand jury to convince them to come around to his way

of thinking about Trina Health and Gilbert and others involved with them—they are all

crooks because he says they are crooks.

Then, further along in the transcript of Tynan’s grand jury testimony, we find that

AUSA Wendell, in consecutive remarks erroneously attributed first to a Grand Juror and then

to AUSA Ross, joined with AUSA Ross to condemn Gilbert, Trina Health and others

involved with them. AUSA Wendell states that, “It’s not Jackson Hospital who just made

a mistake?” 11 When coupled with AUSA Wendell’s next statement (erroneously attributed

to AUSA Ross), “It’s these people out to make money with this snake oil,” it becomes clear

that AUSA Wendell also intended to convince the grand jury that Gilbert, Trina Health, and

11
On the audio recording, AUSA Wendell’s statement does not appear to be a
question.

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others involved with them did not accidentally use the wrong billing codes when submitting

claims for health insurance coverage of the artificial pancreas treatment but rather acted

intentionally to violate the law. USA 031459. AUSA Wendell intended to convince the

grand jury with his remarks that Gilbert and those involved with him deserved to be indicted

because they intentionally violated the law. Both AUSA’s became unsworn witnesses before

the grand jury providing testimony in the form of their own personal opinions and biases on

the evidence.

Within the meaning of the holding in Berger, these were not merely hard blows struck

by the prosecutors, these were “foul” blows. These were “improper methods calculated to

produce a wrongful [indictment].” 295 U.S. at 88. This conduct on the part of the

prosecutors as detailed above was flagrant and unconscionable. It was prejudicial to the

rights of the Defendants because there is grave doubt that they would have been indicted but

for the substantial influence of the prosecutors’ misconduct in their efforts to convince the

grand jury that Defendants were criminals who deserved to be indicted. By their statements

to the grand jury discussed above, the prosecutors in this matter abused and took advantage

of their special position of trust and thereby, impaired the grand jury’s integrity as an

independent body. Hogan, 712 F.2d at 762. The indictment is due to be dismissed with

prejudice.

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II. However, and for whatever reason the edited transcript was
created, its existence and production to defense counsel give rise to
a reasonable inference from all available evidence that the
prosecutors knew they had acted improperly before the grand jury
and tried to hide those facts from defense counsel.

This issue is not presented as a claim that the government has failed to meet its

obligations with respect to discovery under Fed.R.Crim.P. 16. There is substantial case law

to the effect that a defendant does not show the requisite prejudice for dismissal of an

indictment with respect to prosecutorial misconduct in the form of a failure to comply with

the government’s discovery obligations because there is no possibility that discovery

violations can contribute to the return of an indictment. Bank of Nova Scotia, 487 U.S. at

256 (“... an indictment may be quashed on the basis of prosecutorial misconduct, but only

where the government’s misdeeds ‘substantially influenced the grand jury’s decision to

indict, or if there is grave doubt that the decision to indict was free from the substantial

influence of such violations.’”); U.S. v. Lee, 906 F.2d 117, 120 (4th Cir. 1990) (“[T]he

district court erred in dismissing the indictment [based on the prosecution’s failure to

produce a defense witness, who was allegedly ‘within government control,’] because, as the

Supreme Court has explained, ‘absent demonstrable prejudice, or substantial threat thereof,

dismissal of the indictment is plainly inappropriate, even though the violation may have been

deliberate.’” (quoting Morrison, 449 U.S. at 365)); U.S. v. Hastings, 126 F.3d 310, 317 (4th

Cir. 1997) (although the government’s refusal to comply with a discovery order warranted

sanctions, dismissal of the indictment was “an extreme and inappropriate sanction” where

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the only prejudice to defendant was “inconvenience and slight expense of delays”). In fact,

the government’s production of the unedited Tynan grand jury transcript satisfies its

obligation with respect to that transcript.

The Court should recall that the government has refused to explain how or why the

edited transcript of USPI Tynan’s March 14, 2018, grand jury testimony came to exist. The

defense can only draw reasonable inferences from what we know about the edited transcript.

We know what dialogue was edited out of it. We know that the dialogue that was edited out

of the transcript demonstrated prejudicial prosecutorial misconduct. We know that the two

transcripts were prepared by the same court reporter and we know that both transcripts are

dated March 30, 2018. We know that the edited transcript, marked “Copy,” was produced

by the government as part of its second production of documents on June 12, 2018. We

know that the government refused to produce, upon request of Gilbert’s counsel, any audio

recording of Tynan’s grand jury testimony. We know that the unedited transcript, marked

“Original,” was produced by the government on August 8, 2018. We know that AUSA

Wendell sent an email to defense counsel on September 7, 2018, after the hearing in which

Magistrate Judge Capel ordered the production of the audio recordings relating to the

portions of the transcript that were edited out of the edited transcript, in which the

government revealed for the first time that AUSA Wendell made remarks that were

transcribed on the unedited transcript and that were erroneously attributed to a Grand Juror

and to AUSA Ross. Finally, we know that the government filed a Notice [Doc. 118] on

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September 12, 2018, walking back its misrepresentation in open court that the unedited

transcript was accurate.

Given the circumstances of what defense counsel know about the edited transcript,

it is reasonable to conclude, in the absence of any other explanation being given by the

government, that the court reporter produced the edited transcript removing the prosecutors’

prejudicial remarks upon the suggestion or direction of some representative of the

government. If the edited transcript came to exist as suggested, then the effort to conceal or

cover up the prejudicial prosecutorial remarks from discovery by defense counsel

demonstrates that the prosecutors knew their conduct was ethically questionable,

inappropriate, and could subject them to sanctions or even dismissal of the indictment. The

cover up only makes the nature and intent of the prosecutors’ statements to the grand jury

even more clearly evident.

Wherefore premises considered, Defendant Davis submits that his motion to dismiss

the indictment for prosecutorial misconduct is due to be granted. Defendant Davis adopts

as though fully set out herein the motions of all other co-defendants in support of his motion.

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Respectfully submitted this 24th day of September, 2018.

/s Algert S. Agricola, Jr.

Algert S. Agricola, Jr. (ASB-0364-r79a)

Counsel for Randall M. Davis

OF COUNSEL:

RYALS & AGRICOLA, P.C.

60 Commerce Street, Suite 1400
Montgomery, AL 36104
(334) 834-5290 P
(334) 834-5297 F
aagricola@rdafirm.com

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 Case 2:18-cr-00116-MHT-WC Document 123 Filed 09/24/18 Page 24 of 24

CERTIFICATE OF SERVICE

I hereby certify I have served a copy of the foregoing instrument via electronic filing
or by placing a copy of the same in the United States Mail, postage prepaid, to the following
on this the 24th day of September, 2018:

Jonathan S. Ross, Esq. William M. Espy, Esq.

Joshua J. Wendell, Esq. Joseph C. Espy, III, Esq.
Asst. U.S. Attorneys Benjamin J. Espy, Esq.
131 Clayton Street Melton Espy & Williams, P.C.
Montgomery, AL 36104 P.O. Drawer 5130
Montgomery, AL 36103
Richard S. Jaffe, Esq.
Michael P. Hanle, Esq.
Michael W. Whisonant, Jr., Esq.
Brett Knight, Esq.
Jaffe, Hanle Whisonant & Knight, P.C.
2320 Arlington Avenue S.
Birmingham, AL 35205

/s Algert S. Agricola, Jr.

OF COUNSEL
M:\General Litigation\Davis, Randy\US v. Davis\Pleading\Davis's Mtn to Dismiss Indictment 09-24-18.wpd

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