January 4, 2017
from the Criminal Court for Shelby County No. 10-05643 Glenn
R. Chism (on appeal) and Paul Springer (at hearing), Memphis,
Tennessee, for the appellee, Arthur Graham. Jennifer J.
Mitchell, Memphis, Tennessee, for the appellee, Michelle
Herbert H. Slatery III, Attorney General and Reporter;
Jonathan H. Wardle, Assistant Attorney General; Amy P.
Weirich, District Attorney General; and Byron Winsett, III,
Assistant District Attorney General, for the appellant, State
Defendants, Arthur and Michelle Graham, were indicted on
August 31, 2010, for theft of property valued at $60, 000 or
more from the State of Tennessee based on their fraudulent
medical billing practices at the children's therapy
facility they owned and operated, which resulted in
overpayments in excess of $200, 000. According to the
indictment, the thefts occurred between March 6, 2002, and
October 31, 2003. The delay in indicting the matter resulted
from the fact that the United States Attorney's Office
had first investigated the thefts and did not release the
matter to the Shelby County District Attorney General's
Office until the applicable federal statute of limitations
had run. The Defendants each filed a motion to dismiss the
indictment, claiming their rights to a speedy trial had been
violated by the pre-indictment delay. The trial court denied
the motions. Subsequently, the Defendants filed a joint
motion to reopen proof on their earlier motions to dismiss.
The court entered an order granting in part and denying in
part the motion. While the court held that the Defendants had
failed to present proof of actual prejudice between the last
alleged criminal act and the return of the indictment, it
found that the eight-year statute of limitations had run as
to the thefts alleged to have occurred prior to August 31,
2002. As a result, the State could proceed only as to those
thefts occurring between August 31, 2002, and October 31,
2003. The Defendants then filed a joint motion, asking that
the court reconsider its earlier order, again asserting the
pre-indictment delay violated their rights to a speedy trial.
After hearing the testimony of witnesses, the trial court
reversed its previous order, this time finding that the
Defendants had been prejudiced by the pre-indictment delay,
and dismissed the indictment. The State appeals this order.
As we will explain, we reverse this order of the trial court
and reinstate the indictment.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
E. Glenn, J., delivered the opinion of the court, in which
John Everett Williams and Camille R. McMullen, JJ., joined.
E. GLENN, JUDGE
review, we first will detail the motions made on behalf of
the Defendants regarding the delay in the indictment.
15, 2012, the Defendants filed a joint motion to dismiss the
indictment, claiming that the statute of limitations had run
as to the offenses. On April 14, 2014, counsel for Defendant
Arthur Graham filed an amended motion to dismiss the
indictment, arguing that Mr. Graham had been denied his right
to a speedy trial because of the passage of time between the
offenses alleged in the indictment and the date of the
indictment. Shortly thereafter, counsel for Defendant
Michelle Graham filed a like motion. Both motions asserted
that this passage of time affected the Defendants'
abilities to defend themselves. The trial court took both
motions under advisement. On July 24, 2014, the trial court
heard arguments from the parties and advised that a ruling
would be issued on August 21, 2014.
August 11, 2014, the Defendants filed a joint motion asking
that the court allow them to reopen proof on the previous
motions to dismiss. On August 15, 2014, the court heard
testimony, as we will set out, from retired Tennessee Bureau
of Investigation (TBI) Special Agent Roger Turner regarding
the investigation of the matter and history of the delays.
The State filed a response on October 7, 2014, opposing the
motion. The court entered an order granting in part and
denying in part the motion on November 12, 2014. In that
order, the court denied the Defendants' claims regarding
the violation of their Sixth Amendment and due process rights
but granted the motion as to the statute of limitations,
meaning that the State could not proceed on offenses alleged
to have occurred prior to August 31, 2002.
March 26, 2015, the Defendants filed a joint motion, asking
that the trial court reconsider its previous order. At a
hearing on June 25, 2015, the trial court heard additional
testimony from Defendant Arthur Graham and then, on July 30,
2015, from Alonzo Chad Pendleton, Tarlene Whooper, and Myla
Johnson. On November 10, 2015, the trial court filed its
order granting the Defendants' motion to dismiss the
evidentiary hearing, which preceded the trial court's
dismissal of the indictment, several witnesses testified.
Roger Turner said that he was a retired special agent of the
TBI and had been assigned to the Medicaid task
force. While in that position, he participated in
a 2003 investigation of the Defendants' business, Cuddles
Care Services, LLC. The criminal investigation resulted from
a complaint filed by Blue Cross Blue Shield that Cuddles Care
was improperly billing physician codes and had been paid more
money than it was entitled to. The investigation began on
August 13, 2003. According to his investigative summary, Mr.
Turner received a letter on October 27, 2003, from Myla
Johnson with Omnicare, stating that Omnicare had reached a
contractual agreement with Cuddles Care to recover $15,
665.07 identified as overpayments due to fraudulent billing.
Mr. Turner continued with his background investigation of the
complaint, interviewed potential witnesses, investigated the
business and, on September 21, 2004, served a ...