Indianapolis - The government is pushing ahead with criminal fraud charges against a northern Indiana medical practice despite the apparent murder-suicide of the ophthalmologist and his wife, who were the main defendants.
Attorneys for Gabriele Eye Institute PC argued that going to court without Dr. Philip and Marcella Gabriele would prevent the business from receiving a fair trial, but a judge ruled that their absence wouldn't irreparably harm the practice's defense against charges of health care fraud.
"While this court understands that the Gabrieles' absence will make it more challenging for GEI to present its defense, their absence won't result in a trial that is fundamentally unfair or violative of GEI's constitutional rights," U.S. District Judge Robert L. Miller Jr. wrote.
According to the Aug. 18 order, neither Miller nor attorneys for either side were able to find any legal precedent for dropping a case against a corporation upon the deaths of the defendants whose actions prompted the charges. Prosecutors did cite several civil cases in which lawsuits continued in such circumstances, however.
Peter Henning, a visiting professor at the Indiana University School of Law in Indianapolis who teaches a course about white-collar crime, said he also was unaware of any similar situations involving criminal cases. But he likened it to situations in which witnesses disappear or refuse to testify.
"The fact that a witness is unavailable doesn't mean the case against you should be dismissed," he said.
Henning said GEI might have faced a similar situation if the Gabrieles had taken the stand and invoked their Fifth Amendment rights against self-incrimination.
"You're in the same position as if they had taken the Fifth," he said. "That's not a basis for dismissing charges, that I can't get to evidence that might be helpful to me."
Police found Gabriele and his wife dead at his Elkhart office June 15, three days after they and their practice were named in an indictment accusing them of financial fraud and injuring patients through unnecessary procedures.
Authorities determined that Philip Gabriele fatally shot himself and that Marcella Gabriele's death was a homicide. Elkhart County prosecutors reviewed the investigation last week and sent the case back to police for further investigation.
Charges against the Gabrieles were dismissed last month because of their deaths, and attorneys for the practice moved to dismiss the case against GEI, noting that it is now controlled by a court-appointed representative of Dr. Gabriele's estate who had never worked for the company. The corporation is being dissolved.
GEI argued that its right to a fair trial would be hurt because the Gabrieles were the only people alleged to have taken part in fraud and the company couldn't defend itself effectively without them. It also said its defense would be harmed because of the inability to consult with the couple.
But prosecutors strongly disagreed, noting that GEI had been aware of the investigation for about two years and had had time to discuss the case with the Gabrieles.
"The Constitution entitles a defendant to a fair trial but it does not permit a defendant to avoid liability merely because two of the corporation's agents have purposefully absented themselves," the government said in court documents.
Prosecutors hope to obtain restitution for hundreds of patients.
"GEI has substantial assets including real estate, equipment and accounts receivable that could justly be used to make restitution to the public and private insurers and hundreds of individual patients victimized by the Gabrieles and GEI," federal prosecutors said in court documents.
Attorneys for both sides declined further comment.
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