United States v. B. Miller

588 F. App'x 445
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 29, 2014
Docket13-4236, 13-4237
StatusUnpublished

This text of 588 F. App'x 445 (United States v. B. Miller) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. B. Miller, 588 F. App'x 445 (6th Cir. 2014).

Opinion

SILER, Circuit Judge.

This is a search warrant case. A specialty pharmacy in Ohio was committing health care fraud. To obtain incriminating files, agents searched the pharmacy and later the business owner’s home. The district court denied the owner’s motions to suppress the fruits of these two searches, and this appeal followed. We AFFIRM.

I.

B. Elise Miller owned and operated Pharmaceutical Alternatives, Inc., which did business as Three Rivers Infusion and Pharmacy Specialists (“Three Rivers”), a “specialty pharmacy.” In addition to providing home health services and pharmaceutical supplies; Three Rivers offered expensive drugs not typically carried by retail pharmacies. Among the specialty drugs available at Three Rivers was “Synagis,” a drug for infants with respiratory disease. In May 2008, special agents with the Federal Bureau of Investigation (“FBI”) and the United States Department of Health and Human Services (“DHHS”) joined an ongoing investigation by the state of Ohio involving allegations that Three Rivers was over-billing various private and government health insurance providers, including Medicaid, for its services and drugs, particularly its dispensing of Synagis.

Pursuant to the investigation, special agent Benjamin Unkefer of the DHHS authored an affidavit in support of a warrant for the search of Miller’s business premises, which consisted of Three Rivers, located at 288 Main Street in Coshocton, Ohio, and a retail pharmacy she operated known as Miller Pharmacy, located in an adjacent building at 234 Main Street. Un-kefer’s affidavit described several examples of fraudulent billing involving Synagis. Investigators deduced that these billings were fraudulent by comparing patient records to claims for reimbursement submitted by Three Rivers. The affidavit also identified the buildings to be searched and described each building as a two-story structure.

The magistrate judge found probable cause and authorized a warrant to seize numerous records. The warrant had an attachment that included a list of specific patient files, most of which involved Syn-agis. Agents conducted the search in August 2008 and seized several of the listed files. But many of the listed patient files were missing.

In December 2008, investigators made another attempt to recover the missing patient files by serving an administrative health care subpoena on Three Rivers. Three Rivers turned over the records of 21 additional patients, but ninety of the subpoenaed files were missing.

In early December 2009, Miller’s housekeeper, Mary Richard, told FBI special agent Quentin Holmes that she had gone to an attic storage area of Miller’s house to look for a Christmas tree. There, she found a garbage bag containing what appeared to be patient files from Three Rivers. A few days later, Holmes asked Richard to look in the bag again and tell him some of the patient names that were visible on the file folders. Richard complied. *447 Agents compared those names to the names on the administrative subpoena and found that some of them matched.

Agents then applied for a warrant to search Miller’s residence. Holmes authored the supporting affidavit. The affidavit contained information from three former Three Rivers employees, in which the former employees described a box of Syn-agis files that agents left behind in a conference room after the August 2008 search. Two of these employees noticed that the box later vanished from the pharmacy, and one of them said the box ended up at Miller’s house. One paragraph of the affidavit also recounted Richard’s discovery of the box of files in Miller’s attic, but it did not mention Richard’s subsequent trip to collect names from the files.

Based on Holmes’s affidavit, the magistrate judge issued a warrant to search Miller’s residence. There, agents found the files just as Richard had described them.

Miller and her co-defendants moved to suppress the evidence seized in these two searches. The district court denied the motions after a hearing. In this appeal, Miller proffers two arguments that were not contained in her motions to dismiss, but that emerged from the testimony gathered at the suppression hearing.

Regarding the search of the pharmacies, Miller suggested at the hearing that when the agents were searching the second floor of 288 Main Street, they crossed into an adjoining building, with the street address of 240 and 2401/2 Main Street. Unkefer, the agent who led the search, testified-that, although the buildings seemed bigger than he expected on the inside, he was not aware of ever having penetrated into an adjoining building. He said his agents entered the building only through the doors of the 284 and 238 Main Street addresses, and that their search was limited to areas open to and accessible from those entryways. Unkefer said he had no idea it was possible to enter the adjoining building through the second floor.

Regarding the search of her residence, Miller’s motion claimed that Holmes provided false testimony in his affidavit in support of the warrant. This claim subsequently morphed into an argument that Miller’s housekeeper was acting as a government agent when she collected the names from the files in the attic, and that this unreasonable search invalidated the warrant.

II.

■ When we review a district court’s decision on a motion to suppress, we review findings of fact for clear- error and conclusions of law de novo. United States v. Cochrane, 702 F.3d 334, 340 (6th Cir.2012). When a district court has denied a motion to suppress, we review the evidence “in the light most likely to support the district court’s decision.” United States v. Pritchett, 749 F.3d 417, 435 (6th Cir.2014) (quoting United States v. Adams, 583 F.3d 457, 463 (6th Cir.2009)).

III.

We turn first to whether the search warrant for Miller’s residence was invalid. Miller argues on appeal that her housekeeper was acting as an agent of the government when she found the files in Miller’s attic, which renders the discovery an unreasonable government search in violation of the Fourth Amendment. If we redact the housekeeper’s information from the affidavit supporting the warrant, Miller argues, then the affidavit fails to provide probable cause to search her house.

We have no need to address this argument because Miller did not properly present it to the district court. Miller *448 failed to raise this argument in her motions to suppress or their supporting memoranda. Miller waived closing arguments at the suppression hearing, so the legal argument was never developed there. Miller’s husband, her codefendant, submitted a posthearing “addendum” to his motion to suppress on December 5, 2012, which contained this agency theory. But the district court declined to consider the addendum, and its twelve-page order (dated December 7, 2012, and filed December 10) nowhere addresses Miller’s late-blooming government agency argument. We deem it waived.

IY.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
588 F. App'x 445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-b-miller-ca6-2014.