United States v. Shinderman
2008 U.S. App. LEXIS 1880, 75 Fed. R. Serv. 706, 515 F.3d 5 (2008)
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Rule of Law:
Under 42 C.F.R. § 2.66(b), a court may authorize a delay in notifying a party that their confidential substance abuse treatment records have been disclosed for a criminal investigation, provided the delay is reasonable and does not prejudice the party's meaningful opportunity to later seek revocation or amendment of the disclosure order.
Facts:
- Dr. Mark S. Shinderman served as the national medical director for CAP Quality Care, a methadone treatment clinic in Maine.
- Shinderman possessed a medical license and DEA registration number for Illinois, but only a temporary medical license for Maine.
- After Maine pharmacies refused to fill prescriptions written with his Illinois DEA number, Shinderman began writing prescriptions for benzodiazepine using the name and Maine-specific DEA number of Dr. Steven Keefe, another physician at the clinic.
- Dr. Keefe later testified that while he provided Shinderman with pre-signed prescription blanks, he never authorized Shinderman to sign his name or use his DEA number.
- During an investigation into drug-overdose deaths, the U.S. Department of Health and Human Services (HHS) began scrutinizing Shinderman's prescription-writing practices at the clinic.
Procedural Posture:
- The U.S. government obtained three ex parte orders from a federal magistrate judge authorizing disclosure of CAP's Medicaid and patient records, with notice to Shinderman delayed for up to 90 days.
- A federal grand jury indicted Dr. Shinderman on sixty-eight counts, including unlawful use of another physician's DEA registration number.
- In the U.S. District Court for the District of Maine, Shinderman filed a motion to suppress the evidence, arguing the delayed notice violated federal regulations.
- The district court found the delay violated the regulation but denied the motion to suppress, concluding suppression was too drastic a remedy.
- Following a trial, a jury convicted Shinderman on fifty-eight counts.
- The district court imposed a six-month prison sentence after applying sentencing enhancements, including one for obstruction of justice.
- Shinderman appealed his convictions and sentence to the U.S. Court of Appeals for the First Circuit, which is the subject of this brief.
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Issue:
Does a court-authorized delay in notifying a party that confidential substance abuse treatment records have been disclosed to law enforcement, pursuant to 42 C.F.R. § 2.66(b), violate the regulation and require suppression of the evidence if the delay does not prejudice the party's ability to challenge the disclosure order?
Opinions:
Majority - Selya, Senior Circuit Judge
No. A delay in notifying a party about a court-authorized disclosure of confidential substance abuse records does not violate 42 C.F.R. § 2.66(b) or require suppression where the party's ability to challenge the order is not prejudiced. The court found no underlying regulatory violation because the regulation's plain language and purpose allow for ex parte orders without requiring immediate notice upon implementation. The text only requires a 'meaningful opportunity' to challenge the order, which does not have to be instantaneous. The court reasoned that delaying notice is a common and necessary tool in criminal investigations to prevent suspects from being tipped off, analogous to delays authorized for wiretaps and search warrants. The critical inquiry is whether the delay erodes the right to challenge the order. In this case, the district court found no prejudice, Shinderman failed to identify any argument that was adversely affected by the delay, and he did not even attempt to challenge the order's validity once he received notice.
Analysis:
This decision provides significant clarity on the notice requirements for disclosing confidential substance abuse records under 42 U.S.C. § 290dd-2 and its implementing regulations. By holding that a 'meaningful opportunity' to challenge a disclosure order does not mandate immediate notice, the court grants law enforcement and prosecutors greater flexibility in sensitive investigations. The ruling establishes a prejudice-based standard, prioritizing the integrity of criminal investigations over a rigid, immediate notification rule. This precedent strengthens the government's ability to obtain sensitive records ex parte without prematurely alerting targets of an investigation, as long as the target's ultimate right to challenge the disclosure is not meaningfully compromised by the delay.
