MOORE, Judge:
The Commonwealth of Kentucky appeals the order of the Franklin Circuit Court dismissing the indictment against Eric Grider. Grider, in turn, has filed a motion to dismiss this appeal. After a careful review of the record, we affirm the circuit court's order because Grider had no choice in moving to dismiss the indictment due to the Commonwealth's failure to inform him of a key component of the charges against him until after the jury was impaneled and sworn. Because we affirm the circuit court's dismissal of the indictment with prejudice, we conclude that Grider's motion to dismiss this appeal on the basis that his retrial is barred by the Double Jeopardy Clause is moot.
Grider was indicted in 2008 on six counts of devising or engaging in a scheme to defraud the Kentucky Medical Assistance Program (Medicaid), valued at $300 or more, in violation of KRS
In August 2008, the circuit court entered a discovery order requiring, inter alia, the Commonwealth to provide a bill of particulars to Grider within thirty days, "advising the defendant of the circumstances of the alleged offense(s), including the date, time, and location of the alleged offense(s), the acts or conduct by which the defendant is alleged to have committed the offense(s),
Regarding the bill of particulars portion of the court's order, the Commonwealth responded: "The Commonwealth respectfully states that the Indictment is drafted with such specificity that it satisfies the provisions of RCr[
A couple of weeks before the Commonwealth filed its responses to the court's order, the Assistant Attorney General who was prosecuting the case for the Commonwealth sent a letter to the Deputy Commissioner of the Department for Medicaid Services in Frankfort. In that letter, the Assistant Attorney General informed the Deputy Commissioner that the Attorney General's Office had been investigating Grider Drug, LLC
Grider moved for specific Brady
Grider subsequently moved for enforcement of the court's prior order directing the Commonwealth to provide him with a bill of particulars. Because no order was entered concerning this motion, Grider
Grider then filed another request for specific Brady materials from the Commonwealth. In that request, Grider sought, inter alia, "[t]he identity of the previously undisclosed `anonymous' person who relayed information concerning the Defendant and his alleged activities to the Board of Pharmacy (Executive Director Mike Burleson has advised that the identity is known but will not provide it)." The Commonwealth responded without really addressing Grider's request. Rather, the Commonwealth merely stated: "The Commonwealth has indicated that [the] Board of Pharmacy made the initial complaint to the Medicaid Fraud and Abuse Control Division. No determination has been made at this time as to whom the Commonwealth will call as witnesses in the prosecution against Eric Grider."
Grider moved for the court to require the Commonwealth to release Medicaid funds it owed him that had been escrowed or, in the alternative, to dismiss the indictment. Grider contended that the "Commonwealth's Department of Medicaid Services ha[d] withheld over $700,000 owed to Mr. Grider and his pharmacy, Grider Drugs, LLC, for prescription drugs it ha[d] already dispensed, although there [was] no allegation that those claims [were] tainted in any way by fraud." Grider continued, alleging that if the court allowed the Commonwealth to continue its actions, it would effectively "strip Mr. Grider of his ability to defend himself in this action. His Sixth Amendment right to counsel of his choice, and his Fifth Amendment right to a fair trial, forbid the government from seizing these funds." Grider argued that the Commonwealth still had not provided a bill of particulars, despite having been ordered to do so months earlier, and based upon documents produced in discovery, it appeared that the Commonwealth was claiming that the total amount of losses for the allegedly fraudulent claims by Eric Grider and other pharmacists at Grider Drug was $23,730.97. Grider alleged that he was entitled to be indemnified from Grider Drug for his legal expenses pursuant to KRS 275.180, and that without the funds, he was unable to pay the legal and expert witness expenses he needed to defend himself. Furthermore, Grider asserted that although there are state regulations which permit the Department of Medicaid Services to withhold Medicaid payments when there have been instances of overpayments or court-ordered restitution, the state regulation did not trump his constitutional rights and, in any event, no "overpayment" exceeding $23,371 had been identified by the Commonwealth. Finally, Grider contended that although the state regulation provided that an administrative appeal could be filed concerning the decision to withhold Medicaid payments, he would have had to testify on his own behalf at that administrative proceeding if he had filed such an appeal; this would have resulted in his waiving his Fifth Amendment right against self-incrimination.
In February 2009, Grider moved to dismiss the indictment due to the Commonwealth's failure to comply with the circuit court's order directing the Commonwealth to file a bill of particulars within thirty days of its August 7, 2008 order. His motion was denied without prejudice. The court ordered the Commonwealth to file a bill of particulars "setting forth with particularity the factual and legal basis for the charges set forth in the Indictment" by a specific date. (Emphasis removed). The court also ordered Grider, the Commonwealth, and counsel for the Cabinet for Health and Family Services to continue trying to resolve all of the issues concerning the Cabinet's withholding of Medicaid
The Commonwealth then filed its bill of particulars, which referenced a spreadsheet that the Commonwealth stated was attached to the bill of particulars.
The circuit court entered an order denying Grider's motion to dismiss for government misconduct; denying Grider's motion to suppress evidence; and finding Grider's motion to release funds held in escrow to be moot at that time. The court permitted Grider to reserve the right to re-assert the motion to release funds if the government's actions made it impossible for him to pay for his defense.
Grider filed a motion in limine to prevent the Commonwealth from presenting evidence or testimony at trial beyond what was included in the bill of particulars. Grider reasoned that a motion in limine was warranted because the spreadsheet attached to the Commonwealth's Bill of Particulars was incomplete. He argued that many of the purportedly fraudulent Medicaid claims were missing important information concerning the amounts that were reimbursable from Medicaid for the drugs that were dispensed by the pharmacy.
Grider moved to exclude newly discovered evidence. Grider contended that at a court conference in April 2009, the Commonwealth's Attorney disclosed "that she had recently received documents from First Health[
The Commonwealth filed a supplemental discovery response that stated it included spreadsheets "detailing the drugs written, dispensed, and billed for various Medicaid patients including the amount of the claim that was submitted, paid, and what would have been paid had the claim been billed as dispensed."
The circuit court ordered the Commonwealth to provide Grider with copies of any correspondence between the Attorney General's Office and the United States Drug Enforcement Agency, and between First Health and the Attorney General's Office. The court also noted that the Commonwealth represented to the court that it did not possess
The court further noted that Grider had "repeatedly requested the return of original documents, including but not limited to original prescriptions, seized by the Commonwealth as part of its investigation." The court ordered the Commonwealth to return the originals of all documents seized by a particular date.
The Commonwealth filed a supplemental response to discovery pursuant to the court's order. The Commonwealth's response stated that attached to it was email correspondence between an agent and employees of First Health.
Grider filed a supplemental memorandum in support of his motion to preclude expert testimony. He alleged that Rob Coppola, the Commonwealth's proposed expert on the history of drug pricing, was unqualified, the data used by the Commonwealth was unreliable, and the methodology in determining what the drug prices were in the past was flawed. Grider explained that the case concerned "drugs dispensed over six years ago. The Department of Medicaid Services no longer possesses records showing what payments Mr. Grider would have been entitled to receive. In its attempt to find a way to cover up this fatal hole in its case, the government has resorted to guesswork."
Grider again moved to dismiss the indictment on the ground that the government had violated his Sixth Amendment right to counsel of his choice. Grider acknowledged that he had previously filed a motion to dismiss on this ground, but he had withdrawn his prior motion because the government had agreed to release all but $300,000 of the funds owed to Grider. However, as the Medicaid reimbursements to Grider began again, "the government cut off payments for state workers and retirees under the Commonwealth's insurance plans, a major component of Grider Drugs' business." Grider alleged that Grider Drug had filled over $1 million in prescriptions for people who participated in the Commonwealth's insurance plans, but it had not been reimbursed for those expenses. Grider explained that the payments had been discontinued "after the Attorney General's Office informed the prescription benefits manager, Express Scripts, about the indictment.... Other payors Express Scripts represents, including TriCare (federal government workers), Humana, and WellPoint ha[d] also cut off payments." Grider alleged that the government's actions had caused him to be unable to pay the legal and expert fees he required to defend himself.
In March 2010, the Commonwealth filed a notice with the circuit court of its intent to present a summary exhibit, i.e., spreadsheets that included the following information for various reimbursement claims Grider Drug had allegedly made: date of service; recipient name; prescription number; drug prescribed; drug billed; quantity billed; drug dispensed; quantity dispensed; amount paid as billed; amount that would have been paid as dispensed; and the difference between the amount paid as billed and the amount that would have been paid as dispensed.
In May 2010, Grider moved to exclude exhibits created by Steve Hart of the Kentucky Board of Pharmacy and any testimony related to those exhibits. Grider contended that despite the court's prior discovery orders, the Commonwealth had waited until five days (i.e., three business days plus one weekend) before trial was scheduled to begin to produce a computer disc that was utilized by Steve Hart in his investigation. Grider alleged as follows:
Grider contended that he had insufficient time to evaluate the disc for use at trial. Therefore, he asked the court to deem the evidence on the disc, as well as any testimony from Steve Hart, inadmissible at trial.
A couple of days later, after a pretrial hearing on May 7, 2010, the circuit court ordered the following in regard to Complainant, who was the person who originally made the allegations against Grider Drug to the Kentucky Board of Pharmacy:
The court subsequently entered an order granting the Kentucky Board of Pharmacy's motion for a protective order concerning the information that was produced in accord with the court's May 7, 2010 order concerning the Board of Pharmacy's records pertaining to Complainant and the Pharmacist Recovery Network. The court noted that the Board of Pharmacy argued that pursuant to KRS 315.126, the information was confidential. However, the court found that the documents produced constituted exculpatory evidence and, therefore, the government was required to produce them pursuant to Brady. The court also noted that the Board of Pharmacy lacked standing "to assert the privacy interests of the individual in question, who was identified as a witness for the prosecution in this case." Regardless, the court granted the motion for a protective order because Grider informed the court that he did not object to it.
The case proceeded to a jury trial. After the jury was seated and sworn, and opening arguments were delivered, the jury was released for the day. The parties then presented arguments to the court concerning Grider's motion to dismiss the indictment based upon Brady issues. The court also noted there was an issue with pre-authorization that the Commonwealth had raised during opening arguments, and the court expressed its uncertainty regarding how Grider's failure to obtain pre-authorization from Medicaid for certain drugs affected the charges against Grider. The Commonwealth responded to the court's concern and explained that, from its perspective on the theory of the case, the pre-authorization process was "tantamount" because Medicaid regulations provide that reimbursement shall be denied if
The following morning, the court announced its intention to declare a mistrial. The court informed the parties of its intention to dismiss the indictment against Grider, but stated it would permit the Commonwealth to brief the issue first.
Approximately two months later, the circuit court entered its order granting Grider's renewed motion to dismiss the indictment. The court's order stated, in pertinent part, as follows:
The Commonwealth now appeals, contending that the trial court did not have the authority to dismiss the indictment. Additionally, after the Commonwealth filed its notice of appeal in this case, Grider moved to dismiss the appeal on the basis that this Court does not have jurisdiction over the matter because a reversal and retrial would violate the Double Jeopardy Clause. That motion was passed to this panel to address the merits of the motion. Counsel for the Commonwealth of Kentucky, Board of Pharmacy (BOP) also moved this Court for permission to file an amicus curiae brief. That motion was granted, and the amicus curiae brief was filed. Amicus Curiae BOP argues that the records of the Pharmacist Recovery Network (PRN) are confidential, pursuant to KRS 315.126. BOP maintains that the privilege is absolute, so the records are not discoverable unless certain circumstances are present. Amicus Curiae BOP contends that those circumstances were not met in this case, and that the trial court erred in concluding that the BOP intentionally hid information of a PRN participant and informant in this case, Complainant, from Grider.
We review a circuit court's decision to dismiss an indictment for an abuse of discretion. See Commonwealth v. Baker, 11 S.W.3d 585, 590 (Ky.App.2000). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.2000).
The Commonwealth asserts that the trial court did not have the authority to dismiss the indictment. Grider moves to dismiss the appeal on the basis that this Court does not have jurisdiction over the matter because a reversal and retrial would violate the Double Jeopardy Clause. Because an analysis of the Commonwealth's claims is necessary in order to determine whether the circuit court properly dismissed the indictment and, in turn, whether a reversal and retrial would violate the Double Jeopardy Clause, we begin with a discussion of the Commonwealth's claims on appeal.
The Commonwealth notes that the circuit court's order of dismissal did not specify whether it was with or without prejudice and, therefore, we must construe it as having been a dismissal with prejudice. We agree with the Commonwealth in this regard and, accordingly, find that the circuit court's dismissal of the indictment was a dismissal with prejudice. See Commonwealth v. Hicks, 869 S.W.2d 35, 38 (Ky. 1994).
The Kentucky Supreme Court has stated that the Kentucky Constitution provides for the separation of powers:
Gibson v. Commonwealth, 291 S.W.3d 686, 689-90 (Ky.2009). Further, "subject to rare exceptions usually related to a defendant's claim of a denial of the right to a
Gibson, 291 S.W.3d at 690-91. If the Commonwealth has refused to comply with a discovery order entered in accord with RCr 7.24(9), and the refusal resulted in severe prejudice, a circuit court may dismiss the criminal indictment. 8 Leslie W. Abramson, Kentucky Practice — Criminal Practice and Procedure § 21.73 (2011). Pursuant to RCr 7.24(9), the circuit court may sanction a party in any manner that is "just under the circumstances."
The Supreme Court in Gibson concluded that, under the circumstances of that case, it was
Gibson, 291 S.W.3d at 691.
When a trial court ends a trial after it began but "before a verdict was reached on grounds unrelated to guilt or innocence[,] such action constitutes a mistrial." Derry v. Commonwealth, 274 S.W.3d 439, 445 (Ky.2008). In cases where a defendant requested "to end the proceeding before the merits could be addressed by the jury, he actually asked for a mistrial. (A dismissal of the indictment could follow, but the trial had to be ended first)." Derry, 274 S.W.3d at 445.
In the present case, the circuit court informed the parties that it would enter an order declaring a mistrial in the case.
The circuit court dismissed the indictment in part due to alleged Brady violations, i.e., the Commonwealth's failure to disclose exculpatory evidence regarding the Complainant's substance abuse issues and participation in alleged criminal wrongdoing until days before trial, and the Commonwealth's failure to provide the defense with a copy of the version of the spreadsheet that the Commonwealth intended to use during trial until the Friday before the Monday that trial was scheduled
In cases such as this, where Grider was indicted on six counts of devising or engaging in a scheme to defraud Medicaid, valued at $300 or more, the amount of money involved in the alleged scheme is a material factor to determining whether or not the accused should be found guilty and, if found guilty, what his punishment and total restitution amount should be. Therefore, this information is essential to planning out a defense strategy and to ensuring that a defendant receives the effective assistance of trial counsel to which he is entitled.
As the circuit court indicated, the final version of the spreadsheet produced three days before trial contained a significant amount of data that had not been disclosed previously, including data concerning approximately two months of the time period covered by the indictment that had been compiled but had not been included in the grand jury's charges. The circuit court reasoned that this gave rise "to the implication that the billing practices for those months were not illegal." Moreover, much of the data in the spreadsheet showed that Grider had billed Medicaid less than the amount to which he was entitled, which implies that any errors in billing Medicaid, either to Grider's benefit or detriment, were likely caused by mistakes in accounting, rather than an intent to defraud. Therefore, the spreadsheet contained a large amount of exculpatory evidence, and it should have been disclosed earlier.
Although Brady requires exculpatory evidence to be produced in order to ensure the defendant is not deprived of his right to a fair trial, the Kentucky Supreme Court has held that "Brady only applies to the discovery, after trial, of information which had been known to the prosecution but unknown to the defense." Bowling v. Commonwealth, 80 S.W.3d 405, 410 (Ky. 2002) (internal quotation marks omitted).
In the present case, the Commonwealth appears to have disclosed the exculpatory evidence concerning the Complainant and the spreadsheet just prior to trial, and after the Commonwealth represented to the circuit court previously that it had no exculpatory evidence concerning the Complainant.
However, the circuit court also relied on other reasons for dismissing the indictment. For example, the court found that dismissal of the indictment was warranted because the Commonwealth had shifted its theories of criminal liability. The court noted that the government admitted charging Grider with defrauding Medicaid even in instances when Grider billed Medicaid for a drug that was cheaper than the drug dispensed, resulting in a savings of taxpayers' money. The circuit court also found that in the government's opening statement, it alleged for the first time that Grider's billing practices violated Medicaid's administrative regulations requiring pre-authorization to be reimbursed for specific drugs, which the Commonwealth alleged resulted in Grider's obtaining a competitive advantage over pharmacies that waited to obtain pre-approval before dispensing the drugs. This allegation regarding pre-authorization was raised for the first time in the Commonwealth's opening argument at trial, despite the fact that the circuit court had repeatedly ordered the Commonwealth to provide a bill of particulars to Grider detailing the circumstances of the offenses alleged and the acts or conduct by which he was alleged to have committed the offenses. Additionally, the Commonwealth contended that there was a Medicaid regulation requiring pre-authorization, but the Commonwealth neglected to cite to any such regulation in either the bill of particulars or the indictment. Furthermore, the circuit court explained that one
Kentucky Rule of Criminal Procedure (RCr) 6.12 provides: "An indictment ... shall not be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected by reason of a defect or imperfection that does not tend to prejudice the substantial rights of the defendant on the merits." In the present case, the circuit court dismissed the indictment, due in part to the Commonwealth's failure to charge Grider with the alleged violation of the Medicaid regulation concerning pre-authorization for reimbursement. The court noted that the Commonwealth had only charged Grider with "obtaining payment for services that were not rendered," and that the charges against Grider were very different from "the failure to obtain pre-approval for dispensing a covered medication," which the Commonwealth stated during the in-chambers hearing that followed opening arguments was a significant component of its charges against Grider.
The circuit court did not err in finding that this defect in the indictment prejudiced the substantial rights of the defendant, both because Grider had not been informed before the start of trial that he would have to defend against the allegations regarding the failure to obtain pre-authorization, and because even the member of the jury pool who worked for a Medicaid contractor and who recently had looked into which drugs required pre-authorization during the time period covered by the indictment could not recall which drugs required pre-authorization due to the amount of time that had elapsed. If someone who works in the Medicaid reimbursement field cannot state for certain which drugs required pre-authorization during the time period covered by the indictment, then the defendant certainly cannot be expected to be able to conduct an adequate investigation after trial has already begun in order to properly defend himself against such a complex and new allegation. Moreover, because the Commonwealth informed the circuit court that the violation of the pre-authorization regulation helped form the basis for its charges against Grider, the court properly dismissed the indictment due to the defect of failing to charge this violation, which resulted in prejudice to Grider's substantial rights.
We further note that the Commonwealth did not seek amendment of the indictment in the circuit court. Even if it had, as discussed supra, amendment of the indictment would have been improper because any such amendment would have resulted in prejudice to Grider. See RCr 6.16.
Thus, we must now turn to the Commonwealth's argument that the circuit court improperly dismissed the indictment with prejudice, as opposed to without prejudice. The Commonwealth contends that "the trial court considered sufficiency of
Second, the court mentioned the difficulty of ascertaining the alleged regulatory violations in the course of explaining that the Commonwealth should have informed Grider either by charging him in the indictment or by informing him through the bill of particulars that the charges against him were based upon the alleged failure to obtain pre-authorization from Medicaid. If Grider had been informed earlier of this allegation, he would have had time to prepare to defend himself against it at trial. Additionally, he would have had time to learn about the difficulty in determining which drugs required pre-authorization, which may have been exculpatory in nature. Thus, the circuit court did not weigh the sufficiency of the evidence when it mentioned the difficulty of ascertaining the alleged regulatory violations; rather, it mentioned this to explain why the Commonwealth's failure to charge the alleged pre-authorization violation in the indictment or to inform Grider through the bill of particulars that he would have to defend against this allegation was a threat to Grider's due process rights and to his rights to present a defense and to the effective assistance of trial counsel.
As we previously mentioned, "subject to rare exceptions usually related to a defendant's claim of a denial of the right to a speedy trial, the trial judge has no authority, absent consent of the Commonwealth's attorney, to dismiss, amend, or file away before trial a prosecution based on a good indictment." Gibson, 291 S.W.3d at 690 (internal quotation marks omitted) (emphasis added). However, in the present case, the indictment was not dismissed before trial, but after trial had begun.
Gibson, 291 S.W.3d at 690.
In the present case, the court declared a mistrial after the jury was impaneled and sworn and following opening arguments. The court subsequently entered its order dismissing the indictment. Jeopardy attaches when a jury is impaneled and sworn. See Cardine v. Commonwealth, 283 S.W.3d 641, 646-47 (Ky.2009). The Fifth Amendment of the United States Constitution and Section 13 of the Kentucky Constitution "guarantee that no person shall be tried twice for the same offense." Commonwealth v. Scott, 12 S.W.3d 682, 684 (Ky.2000). "Once jeopardy attaches, prosecution of a defendant before a jury other than the original jury or contemporaneously-impaneled alternates is barred unless 1) there is a `manifest necessity' for a mistrial or 2) the defendant either requests or consents to a mistrial." Cardine, 283 S.W.3d at 647 (internal quotation marks omitted). "Manifest necessity has been described as an
Although the Commonwealth contends that any retrial of Grider is not barred by double jeopardy because Grider allegedly waited until the jury was sworn to move for a dismissal of the indictment on the ground that the Commonwealth had failed to disclose exculpatory evidence, the Commonwealth's argument is misplaced. While it is true that Grider sought dismissal of the indictment on that basis after the jury was impaneled and sworn, the circuit court dismissed the indictment due in part to the Commonwealth's disclosure — after the jury had been sworn and the trial begun — that the charges against Grider were based on his alleged failure to obtain pre-authorization for reimbursement from Medicaid. Because the circuit court found that this resulted in Grider being "deprived of a fair opportunity to defend himself against the government's charges," the indictment was dismissed.
Commonwealth v. Lewis, 548 S.W.2d 509, 510 (Ky.1977), abrogation on other grounds recognized by Cardine, 283 S.W.3d at 646.
In the present case, Grider moved to dismiss the indictment. In support of its argument that the circuit court improperly dismissed the indictment with prejudice, the Commonwealth asserts that the circuit court did not find that the Commonwealth had acted in bad faith. However, the court did find that all of the issues it discussed in its order supported
In other words, the decision to move to dismiss the indictment was forced upon Grider. Due to the fact that the jury was impaneled and sworn, the circuit court did not abuse its discretion in dismissing the indictment with prejudice because Grider's retrial is barred by the Double Jeopardy Clause.
We now turn to Grider's motion to dismiss this appeal on the basis that his retrial is barred by the Double Jeopardy Clause. It was necessary to analyze the merits of this appeal to determine whether the dismissal of the indictment with prejudice was proper, and we found that this was proper. Consequently, Grider's motion to dismiss this appeal on the basis that his retrial is barred by the Double Jeopardy Clause is denied as moot.
Accordingly, the order of the Franklin Circuit Court is affirmed and the motion to dismiss this appeal is denied as moot.
ALL CONCUR.
Grider, No. 2009-CA-002080-MR, 2011 WL 3516296, at *6.
Therefore, this Court found that the circuit court abused its discretion in dismissing the indictment because there were other less severe sanctions that should have been utilized first. Although Senior Judge Lambert concurred in the majority opinion in that case, he wrote a separate concurring opinion "to express [his] disapproval of the Commonwealth's behavior in [that] case." Grider, No. 2009-CA-002080-MR, 2011 WL 3516296, at *7 (Lambert, S.J., concurring).
Amicus Curiae BOP contends that this threshold was not met in this case. It is important to remember that the BOP had received a subpoena directing it to divulge any information it had concerning complaints made against Grider and/or Grider Drug, but it did not produce that information to Grider. Rather, when the court subsequently discovered that the BOP had not disclosed this information, despite the subpoena and court order stating that Grider could subpoena the BOP for such information, the BOP responded that nothing was written down when the complaint was originally made, and that when a pharmacist decides to participate in the PRN, the BOP's opinion is that it does not have any "official" knowledge of that person and their violations of law.
The BOP now contends that the trial court erred in concluding that the BOP intentionally hid information concerning Complainant and his PRN participation from Grider. However, on the Friday before trial, the parties informed the circuit court that Complainant had a history of substance abuse and that he was a participant in the PRN. The court ordered a continuance of the hearing until later that day, and the court informed the Commonwealth that Steve Hart from the BOP was to attend the afternoon portion of the hearing and testify on these matters. Then, during a subsequent hearing attended by counsel for the BOP, the circuit court informed the BOP that an in camera review of the Complainant's records had, in fact, occurred. The BOP has not directed this Court's attention to any evidence in the record to show otherwise. Therefore, Amicus Curiae BOP's claims are not well taken.
