DEFENDANT'S MOTION TO DISMISS OR FOR BILL OF PARTICULARS

AND INCORPORATED MEMORANDUM OF LAW

COMES NOW the Defendant, Dr. *, and hereby moves this Honorable Court, pursuant to Rule 7(f), Federal Rules of Criminal Procedure, to dismiss the indictment in this cause, or in the alternative directing the Government to file a Bill of Particulars providing the information sought as follows:

The indictment in this cause can be broken down into four main sections. The second section alleges Medicaid fraud for the collection of payments on certain listed patients where the services were not rendered. The third section of the indictment alleges Medicaid fraud for the collection of payments on certain listed patients where the services were rendered, but not by a licensed dentist. The fourth section of the indictment alleges tax fraud, both business and personal.

The purpose of an indictment is to sufficiently inform the accused of the nature of the charges against him, to enable the defendant to prepare for trial, to prevent surprise and to interpose a plea of double jeopardy. Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 302, 71 L.Ed. 545 (1927), United States v. Glaze, 313 F.2d 757 (2d Cir., 1963).

The first section of Dr.*'s indictment does not meet this standard, because it does not describe what the illegal conduct is. This first section, referred to under "C. THE MAILINGS" alleges as individual counts one through fifteen, that certain dental claim forms for listed patients were mailed to Medicaid. Unlike the other sections of the indictment, there is no allegation, statement, or any other indication as to what the government is claiming was false or fraudulent on any of these mailings. On behalf of our client, we are forced to guess as to whether the alleged fraud is for work not performed, performed by an unlicensed party contrary to representations, or some other theory regarding the fraud. This makes defending * impossible on this entire section.

Additionally, there is no recitation in section one of the indictment that the acts allegedly committed by * were done willfully. In order to be convicted of a violation of 18 USC §1341 the government must prove that * acted knowingly and willfully. 11th Circuit Pattern Jury Instructions, #34. See also U.S. vs. Mekjian, 505 F. 2d 1320 (5th Cir. 1975).

WHEREFORE, on behalf of our client we respectfully move this Honorable Court to dismiss the indictment in this cause, or in the alternative to order a bill of particulars, requiring the government to allege what type of fraudulent conduct is involved in each count of the first section of the indictment.

Respectfully submitted,

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