Case 9:15-cr-80049-KAM Document 208 Entered on FLSD Docket 01/06/2017 Page 1 of 8

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 15-80049-CR-MARRA

UNITED STATES OF AMERICA

v.
SALOMON E. MELGEN,
Defendant.
______________________________

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GOVERNMENTS RESPONSE IN OPPOSITION TO DR. MELGENS

MOTION IN LIMINE TO EXCLUDE EVIDENCE FROM ATTORNEY-RETAINED
CONSULTANT ANN ROSE (MELGEN MIL NO. 7 ANN ROSE)
The United States of America, by and through the undersigned Assistant United States
Attorneys, hereby responds in opposition to Dr. Melgens Motion in Limine to Exclude Evidence
from Attorney-Retained Consultant Ann Rose (Melgen Mil No. 7 Ann Rose) (DE 203). The
defendant seeks to exclude all testimony and evidence from Ann Rose, a Medicare billing
consultant. The defendants medical practice used Ms. Rose for a number of years, since at least
2000, and in February 2013, the defendants attorneys hired Ms. Rose as a consultant. The
defendant claims, however, that all evidence from Ms. Rose is protected under the attorney-client
and work-product protections, given her role as an attorney-agent.
The defendants motion should be denied. First, the information the government seeks to
introduce significantly predates any asserted engagement, and the government has not received
any information asserted to be privileged. In any event, the defendant has failed to meet his burden
of establishing that Ms. Rose falls within the limited shield of the attorney-client privilege. To the
contrary, Ms. Rose is a fact witness to the scheme to defraud with which the defendant is charged.
Accordingly, the defendants motion must be denied.

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I.

BACKGROUND
Ms. Rose owns and operates a Medicare consulting firm, William E. Rose, Jr. and

Associates, Inc., d/b/a Rose and Associates. The firm assists ophthalmologists with Medicare
reimbursement and compliance issues.
The defendant and his medical practice, Vitreo-Retinal Consultants of the Palm Beaches
(VRC), used Rose and Associates services over the course of many years. For example, Rose
and Associates conducted an audit of VRC in July 2000, issuing a report as to various errors with
the defendants Medicare billing and recordkeeping practices and tips to correct these errors.
Another audit was performed in October 2006. Notably, both of these audits identified coding
errors that are relevant to the billing fraud with which the defendant is charged. Copies of both of
these audits were seized during the execution of a search warrant at VRC in January 2013 and
provided to the defendant in discovery.
In addition to these periodic audits, Rose and Associates was on retainer for VRC, and was
available to give general billing advice. VRC employees regularly communicated with Rose and
Associates. Email communications seized during the executions of the search warrant, both from
VRCs computers and print-outs of various emails seized among the office records, show that
VRCs employees would frequently reach out to Rose and Associatesincluding directly to Ms.
Rose herselfwith various coding questions.
In February 2013, the defendants attorneys hired Ms. Rose as a consultant. At the same
time, VRC continued to pay Rose and Associates for services, as it had done so for many years,
through the date of the indictment in this matter.
In or around October 2014, the government learned that VRC had used Rose and
Associates consulting services throughout the indictment period. In October 2014, the

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government issued a subpoena for records to Rose and Associates. On November 3, 2014, the
government conducted a telephone interview of Ms. Rose and learned of Ms. Roses engagement
by Arnold and Porter. The government had no knowledge of this engagement prior to this
interview. Ms. Rose acknowledged that in 2013, at the behest of Arnold and Porter, Rose and
Associates had performed an audit of the defendants medical practice. She asserted that the audit
was not produced to the government because it was attorney-client privileged. The substance of
the audit was not discussed.
Almost two weeks later, in an email dated November 16, 2014, counsel for the defendant
notified the government that they had retained Rose and Associates as a consultant. (DE 203-2 at
3.) In subsequent communications, the government specified that the October 2014 subpoena was
sent prior to learning that Arnold and Porter had asked Ms. Rose to do an audit, and that Ms. Rose
had not produced anything relating to that audit or her relationship with Arnold and Porter. (Id. at
2.)
In December 2014, counsel for the defendants provided non-privileged documents from
Rose and Associates to the government, as well as a privilege log enumerating certain documents
that the defense asserted were protected by the work-product doctrine. The actual materials
identified in the privilege log were not provided to the government, but were simply identified
through this log as having been segregated prior to the subpoena response.
On January 13, 2015, Ms. Rose was again interviewed by the government via video
teleconference. During the interview, she was represented by counsel, Lisa Barquist, whose
services were paid for by the defendant. Prior to the interview, Ms. Rose was placed under oath.
The interview was transcribed by a stenographer. The interview focused on (1) Ms. Roses general
knowledge of various Medicare coding practices, including specific CPT codes, (2) VRCs use of

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a maintenance contract with Rose and Associates for a flat monthly rate, in which it could
consult with Rose and Associates as needed, and (3) the periodic audits of VRC that Rose and
Associates conducted, specifically the most recent audit in 2006. During the interview, Ms.
Barquist lodged objections to particular questions on Ms. Roses behalf.
The defendant now argues that because Ms. Rose is his attorney-agent, her testimony is
privileged and must therefore be excluded.
II.

ANALYSIS
As the above facts demonstrate, the government has not received any protected information

from Ms. Rose, nor does the government intend to introduce any such information at trial. The
government seeks to elicit testimony regarding general Medicare billing issues as well as VRCs
use of Rose and Associates services through both the flat-rate maintenance contract and its
periodic audit services. 1 Notably, the last audit that the government seeks to introduce was dated
in 2006, seven years before any engagement by counsel for the defendant of Ms. Roses services.
To that end, it is unclear whether the defendant is asserting that the privilege pertains to all
evidence concerning Ms. Rose, or simply any communications and work product after she was
hired by the defendants attorneys in February 2013, and in particular the 2013 audit conducted at
defense counsels behest. To the extent the defendant argues that any evidence predating February
2013 was privileged, the Court can easily dispose of the defendants motion. Prior to that date, the
defendant, not his attorneys, retained her services, and there is nothing that protects their
communications. E.g., Town of Georgetown v. David A. Bramble, Inc., 186 F. Supp. 3d 329 (D.
Del. 2016) (plaintiffs engineer, an independent contractor hired to design and manage the project

This evidence is highly probative of the defendants willful misconduct.

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at issue and represented by separate counsel, was a fact witness not subject to the attorney-client
privilege).
In any event, the defendant has failed to meet his burden of establishing that the attorneyclient privilege extends to Ms. Rose. The defendant relies on United States v. Kovel, 296 F.2d 918
(2d Cir. 1961), for the proposition that communications and materials shared with and generated
by Ms. Rose during the course of this engagement are protected (DE 203 at 4). The defendant
asserts that Ms. Rose acted as a translator of Medicare billing and related issues. (DE 203 at 4-5.)
It is true that the attorney-client privilege may bar disclosures made by a client to nonlawyers who had been employed as agents of an attorney, United States v. Pipkins, 528 F.2d
559, 562 (5th Cir. 1976), and that the inclusion of a third party in attorney-client communications
does not destroy the privilege if the purpose of the third partys participation is to improve the
comprehension of the communications between attorney and client, United States v. Ackert, 169
F.3d 136, 139 (2d Cir. 1999). But [w]hat is vital to the privilege is that the communications be
made in confidence for the purpose of obtaining legal advice from the lawyer. Kovel, 296 F.2d at
922. For example, [i]f what is sought is not legal advice but only accounting service, or if the
advice sought is the accountants rather than the lawyers, no privilege exists. Id. (internal
citations omitted). The party invoking the attorney-client privilege bears the burden of proving its
existence. In re Grand Jury Investigation, 842 F.2d 1223, 1225 (11th Cir. 1987). The privilege is
is to be strictly confined within the narrowest possible limits consistent with the logic of its
principle. Pipkins, 528 F.2d at 563 (quotation marks omitted).
The defendant has failed to meet his burden of establishing that the attorney-client privilege
extends to communications with Ms. Rose. In Town of Georgetown v. David A. Bramble, Inc., 186
F. Supp. 3d (D. Del. 2016), the plaintiff sought to quash a subpoena served on a third-party, Davis,

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Bowen, & Friedel, Inc. (DBF). DBF was an independent contractor, represented by separate
counsel, who had been hired as plaintiffs engineer to design and manage the construction project
at issue. The court found that because DBF was not hired to prepare for litigation, but [was]
literally a player in the litigationa fact witness at best, a party subject to the risk of liability at
worst, the attorney-client privilege could not be extended to his communications.
Similarly, Ms. Rose is an important fact witness because the 2000 and 2006 audits show
the defendants willful misconduct. And although the Georgetown opinion focused on the fact that
DBF was not hired specifically to assist counsel in connection with the above-captioned
litigation, even to the extent that defendants counsel hired Ms. Rose because of the ongoing
criminal investigation, that alone does not shield the communications. [T]he privilege protects
communications between a client and an attorney, not communications that prove important to an
attorneys legal advice to a client. [A] communication between an attorney and a third party
does not become shielded by the attorney-client privilege solely because the communication
proves important to the attorneys ability to represent the client. United States v. Ackert, 169 F.3d
136, 139 (2d Cir. 1999) (internal citations omitted). Indeed, in Ackert, the Second Circuit assumed
that counsel consulted with the non-lawyer at issue in order to gain information and to better
advise his client, yet still found this an insufficient basis to extend the privilege. Id.
Accordingly, the defendant has failed to meet his burden of establishing that his counsels
retention of Ms. Rose brings her within the shield of the attorney-client privilege. Because Ms.
Rose is an important fact witness whose services were rendered to the defendant during critical
time periods of the indictment, independent of his counsel, and from whom no information asserted
to be privileged has been obtained (particularly as she was represented by separate counsel), the
defendants motion is without merit.

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III.

CONCLUSION
For the foregoing reasons, the United States submits that Dr. Melgens Motion in Limine

to Exclude Evidence from Attorney-Retained Consultant Ann Rose (Melgen Mil No. 7 Ann
Rose) (DE 203) must be denied.
Respectfully submitted,
WIFREDO A. FERRER
UNITED STATES ATTORNEY
By:

/s/ Roger H. Stefin

ROGER H. STEFIN
ASSISTANT UNITED STATES ATTORNEY
Florida Bar No. 0287334
roger.stefin@usdoj.gov
/s/ Carolyn Bell
CAROLYN BELL
ASSISTANT UNITED STATES ATTORNEY
District Court No. A5500286
carolyn.bell@usdoj.gov

/s/ Alexandra Chase

ALEXANDRA CHASE
ASSISTANT UNITED STATES ATTORNEY
District Court No. A5501746
alexandra.chase@usdoj.gov
500 South Australian Avenue, Suite 400
West Palm Beach, Florida 33401
Tel: (561) 820-8711
Fax: (561) 820-8777

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on January 6, 2017, I electronically filed the foregoing
document with the Clerk of the Court using CM/ECF.

/s/ Alexandra Chase

ALEXANDRA CHASE
ASSISTANT UNITED STATES ATTORNEY