Defense lawyers in workers' compensation criminal case ask judge to dismiss charges

SANTA ANA -- Attorneys seeking dismissal of a large workers' compensation criminal case argued Friday the Orange County district attorney violated attorney-client privilege so extensively and intentionally that "it tainted the entire prosecution team."

"We have a prosecution team whose every member has been tainted by the review of privileged materials and confidential work product to such a degree that it cannot be undone, it cannot be untangled," said Jeffrey B. Isaacs of Isaacs Friedberg LLP.

Isaacs was joined by Benjamin N. Gluck and Nicole R. Van Dyk of Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow P.C.in final arguments before Superior Court Judge Sheila Hanson for a motion to dismiss on behalf of two executives at Landmark Medical Management, a doctors' billing service.

Prosecutors acknowledge violations occurred but argue dismissal and recusal aren't warranted because the situation has been fixed.

Friday's arguments, which are to continue Tuesday, followed a 12-day evidentiary hearing earlier this year that included testimony from attorneys at O'Melveny & Myers LLP, Hinshaw & Culbertson LLP, McGuireWoods LLP, Quarles & Brady LLP, and other firms that did regulatory and criminal defense work for Landmark.

The attorneys said privileged work they did for Landmark appears in the documents seized by the district attorney's office during a raid of the company's Ontario headquarters in October 2013.

The resulting criminal case involves an alleged multi-million dollar fraud that included kickbacks to doctors who prescribed a pain medication cream Landmark CEO Kareem Ahmed, who is represented by the Bird Marella team, helped formulate.

The case is already on its second life after the original 2014 grand jury indictment didn't survive a state Supreme Court challenge related to issues in the grand jury proceedings, so prosecutors filed a new case via complaint in 2016.

Ahmed's charges include conspiracy to commit medical insurance fraud and two counts of involuntary manslaughter for the death of an infant who was prescribed the cream. The prescribing doctor, Andrew R. Jarminiski, also is charged with involuntary manslaughter as is pharmacist Michael Rudolph.

Others are charged in a separate complaint, including Isaacs' client, Landmark marketing manager Evette Ann Charbonnet. People v. Charbonnet, 16CF1352 (Orange Super. Ct., filed May 20, 2016). People v. Ahmed, 16CF1351 (Orange Super. Ct., filed May 20, 2016).

Isaacs' and Gluck's dismissal motion, which alternatively seeks the recusal of the prosecutors currently assigned, focuses on the district attorney's examination of the privileged material. Some attorneys testified during the evidentiary hearing that the lead prosecutor, Orange County Senior Deputy District Attorney Shaddi Kamiabipour, said her office had procedures for handling privileged evidence and would use a special master.

Instead, she directed her case investigator to segregate the privileged material, and she testified she knew that in doing so he would see privileged content, according to Gluck and Isaacs' post-hearing brief, which calls for the case to be dismissed because of constitutional violations related to the 6th Amendment right to counsel or, in the alternative, for outrageous government misconduct.

Meanwhile, Kamiabipour and co-counsel Scott M. Van Camp, a deputy district attorney, agree there were "flaws in the method used to screen the hundreds of documents seized in this case for privileged material," and they agreed the investigator who reviewed the documents can't be part of the prosecution team.

But the investigator "has long since been walled off" from the case, and defendants have demonstrated Kamiabipour saw only six privileged documents.

"Putting aside the ad hominem attacks on the prosecution, defendants' complaints are based on the process used to screen for privilege, not the outcome of that process," according to Kamiabipour and Van Camp's brief. "The outcome of that process reveals that neither dismissal nor recusal is warranted because defendants cannot show prejudice."

Hanson questioned whether the violations create prejudice and said they don't compare to violations in two cases Isaacs and Gluck believe support their arguments. She also took issue with Isaacs' argument that prosecutors' actions in this case are more egregious than acts outlined in case law, including Morrow v. Super. Ct., 30 Cal. App. 4th 1252 (1994) and Barber v. Munic. Court, 24 Cal. 3d 742 (1979).

In Morrow, a prosecutor directed an investigator to eavesdrop on a defendant's conversation with his attorney in a courthouse holding cell. In Barber, an undercover police officer attended a confidential attorney-client conference.

"I do not in any stretch of the imagination want to underestimate the seriousness and the importance of the invasion that occurred in this case," Hanson said.

"But the argument that Ms. Kamiabipour acted in a more outrageous manner than Barber and the Morrow case, it's a not a very credible argument because I had the opportunity to watch and listen to the testimony and the law presented in this case," the judge added.