DEFENDANT'S MOTION TO STRIKE SURPLUSAGE

AND INCORPORATED MEMORANDUM OF LAW

COMES NOW the defendant, Dr. * *, and hereby moves this Honorable Court, pursuant to Rule 7(d), Federal Rules of Criminal Procedure, to strike the paragraphs listed below from the Indictment on the grounds that the allegations of the paragraphs are irrelevant, unnecessary and prejudicial surplusage, styled in a manner to suggest that the jurors are to accept them as established fact regardless of proof.

Many of the paragraphs contained in the Indictment are irrelevant and do not indicate any wrongdoing on behalf of Dr. *, and are irrelevant for illustrating a violation of any of the elements of the criminal statutes alleged in the Indictment. Further, the entire introduction is styled in a manner suggesting that these are accepted facts. Failure by the Court to strike surplus language that is highly prejudicial may constitute error. U.S. vs. Hunpert, 917 F.2d 507 (llth Cir. 1990), and U.S. vs. Bulloch, 451 F.2d 884 (5th Cir. 1971). Additionally, it has been recognized by the Courts that it is proper to reserve ruling on such motions, until relevance of the allegedly surplus language is established. U.S. vs. Awan, 966 F. 2d 1415 (11th Cir. 1992).

Going to the Indictment in this case, paragraphs 1 through 8 are clearly surplusage. The structure of the Medicaid system, and the establishment of Federal jurisdiction for the purposes of establishing the government's alleged violations of the law, are matters that the government must prove as part of its case in chief. For this Honorable Court to allow the government to keep this language in the Indictment, styled as an "Introduction" would be tantamount to allowing the government to introduce evidence and to get it before the jury, without requiring the government to offer proof of the allegations.

This artifice is particularly troublesome as it affects paragraph 9. The allegations of what the State of Florida requires to be performed by a licensed dentist is an element that the governemnt must prove, and not one that they can merely submit to the jury as a given fact, veiled as an "Introduction". What services Medicaid would or would not pay for unless performed by a licensed dentist also falls within the same argument. These are allegations that the government must establish as part of its case, and not matters to be presented to the jury labeled as an "Introduction".

WHEREFORE, the defendat respectfully moves this Honorable Court to strike those portions from the indictment as to allow the government to introduce the facts discussed without being required to prove those allegations would be highly prejudicial to Dr. *'s case.

Respectfully submitted,

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