United States District Court, D. Montana, Missoula Division
L. CHRISTENSEN, CHIEF JUDGE
the Court are Defendant John Cicero Hughes's Motion to
Suppress Evidence from C&P Examination (Doc. 61) and
Motion to Suppress Statements Based on Miranda (Doc.
65). As explained in this Court's Order of September 17,
2019, the Court will withhold judgment until trial regarding
Hughes's Motion to Suppress Government's Compilation
Exhibit (Doc. 63). (Doc. 72.) The Court held a hearing on the
motions on September 23, 2019. Having considered the
parties' briefs, supporting exhibits, and the evidence
presented at the hearing, the Court denies the motions.
grand jury handed down a 20-count indictment against Hughes
on June 28, 2018. (Doc. 2.) Hughes stands charged with one
count of Health Care Fraud, seventeen counts of Theft of
Government Money, one count of False Statements, and one
count of Social Security Disability Insurance Fraud. The
government alleges that Hughes misrepresented the severity
and scope of his disability in order to unlawfully take
Summary of the Federal Agencies Involved
a veteran, receives healthcare from the Veterans Health
Administration ("VHA") and benefits through the
Veteran Benefits Administration ("VBA"). The VHA
and VBA are both organizations under the umbrella of the
Department of Veterans Affairs ("VA"). Hughes's
receipt of benefits through the VBA is at the core of the
criminal charges he faces. His receipt of healthcare services
through the VHA is generally irrelevant to this criminal
proceeding, but VHA medical providers were involved in
classifying Hughes's level of disability at the direction
of the VBA. In early 2018, the VBA downgraded Hughes's
disability rating following a compensation and pension
("C&P") examination performed by VHA Family
Nurse Practitioner Christine McCutcheon.
from the VA but also relevant to this case is the VA Office
of Inspector General ("OIG"), an oversight agency
created by the Inspector General Act of 1978, Pub. Law
95-452, 5 U.S.C. App. § 3. The OIG investigates fraud
and waste within the VA, and its agents have the "duty
and responsibility ... to conduct, supervise, or coordinate
... activities carried out or financed by [the VA] for the
purpose of promoting economy and efficiency in the
administration of, or preventing and detecting fraud and
abuse in, its programs and operations ...." 5 U.S.C.
App. 3 § 4(a)(4). In Hughes's case, the OIG
conducted the criminal investigation, led by investigating
agent David Huntoon, that led to the indictment in this case.
Agent Huntoon shared information gathered during the criminal
investigation with the VBA, triggering its review of
Hughes's appropriate disability classification.
Hughes's Receipt of Benefits and the Agencies'
2009, Hughes was rated as 100% disabled by VBA on the basis
of his diagnosed multiple sclerosis. During the hearing on
the motions to suppress, Agent Huntoon testified that at some
point prior to October 2017, he received information that
Hughes had been seen riding a motorcycle, which Huntoon
viewed as inconsistent with the VBA's determination that
his disability included the loss of use of both feet. The OIG
opened a criminal investigation. It also shared information
with the VBA, which in turn reviewed Hughes's file and
discovered a treatment note from 2013 describing Hughes
carrying his wheelchair in one hand and his cane in the other
as he walked down the stairs of a VHA building.
light of this evidence, the VBA began its own investigation
into Hughes's level of disability for the purpose of
ensuring that Hughes was receiving the appropriate level of
benefits. In collaboration with the OIG,  the VBA scheduled
a C&P exam for October 23, 2017. Agent Huntoon contacted
the VHA provider who would conduct the examination, Nurse
Practitioner McCutcheon, and requested her consent to record
the examination. McCutcheon gave her consent, and Huntoon and
OIG investigating agent Marcus Munn made arrangements to
monitor and create a video and audio recording of the C&P
canceled the exam and rescheduled it for November 15, 2017.
However, he did not attend the rescheduled exam. On December
20, 2017, the VBA sent a letter to Hughes proposing that
Hughes's disability rating from 100% to 70%,
corresponding to a proposed reduction in monthly benefits
from $7, 702.12 to $1, 566.48. (Doc. 67-3.) The VBA explained
that the reduction was attributable, in part, to Hughes's
failure to attend the scheduled C&P exam. It also
notified Hughes of his right to appeal the proposed revision
of Hughes's disability rating. In response, Hughes sent a
letter contesting the revision and stating that he had
rescheduled his C&P exam for January 23, 2018.
attended the January 23, 2018 C&P exam. McCutcheon
performed the exam, following the VBA's check-box
disability benefits questionnaire specific to multiple
sclerosis. Agents Huntoon and Munn recorded the exam
via audio and video, and they also watched the exam in real
time. At issue here is whether the government may introduce
evidence from the exam at trial.
seeks suppression of evidence collected during the January
23, 2018 C&P Exam under two theories. First, he argues
that the warrantless recording of the exam was an
unconstitutional search, and the audio and video recordings
therefore must be suppressed. Second, he contends that
suppression of his statements made in response to
McCutcheon's questions is warranted because: (1) he did
not receive a Miranda warning; and (2) his
statements were made involuntarily.
Motion to Suppress Evidence from C&P Examination (Doc.
seeks suppression of "documentation, recordings,
observations, and conclusions" from the January 23, 2018
C&P exam. (Doc. 62 at 2.) He argues that Agents Huntoon
and Munn violated his Fourth Amendment right to freedom from
unreasonable search and seizure by observing and recording
the C&P exam. Hughes's argument falls under two
general lines of reasoning: (1) the government did not comply
with applicable regulations governing the sharing of
veterans' personal health information; and (2) the
government needed a warrant ...