In seeking a so-called Franks hearing, the defense is likely hunting for an opportunity to cross-examine Puorro prior to trial, and getting the court to grant the hearing would be a strategic win, one expert said.
But even if there is a hearing, the defense still must prove that prosecutors intentionally included false information in the affidavit, said Laura Hoey, a Chicago-based partner in Ropes & Gray LLP's government enforcement practice. If the defense gets past that hurdle and some parts of the affidavit are stricken, she added, the judge still could find that the rest of the document is enough to provide probable cause for the search.
“It's a high bar,” said Ms. Hoey, a former federal prosecutor. “The Franks hearing is just one step in the motion to suppress.”
Eleven months ago, federal law enforcement officials arrested Novak, former Sacred Heart CFO Roy Payawal and four doctors—Venkateswara Kuchipudi, Percy May, Subir Maitra and Shanin Moshiri—alleging that the executives for years had paid the doctors to refer Medicare and Medicaid patients to the hospital in violation of federal statutes. They also seized records and computers from Sacred Heart and $1.2 million from its bank account.
The government dropped charges against Dr. Kuchipudi in September but indicted Messrs. Novak, Payawal and Puorro. Also indicted was hospital executive Noemi Velgara, Drs. May, Maitra and Moshiri, and a fourth doctor, Rajiv Kandala.
Dr. Kandala's attorney, Theodore Poulos of Chicago-based Cotsirilos Tighe Streicker Poulos & Campbell Ltd., and Dr. Kuchipudi's attorney, Daniel Rubinstein of Winston & Strawn LLP in Chicago, declined to comment. Lawyers representing the other defendants did not return messages for comment.
In the months following the arrests and the FBI's raid of the hospital on April 16, Sacred Heart struggled to keep its doors open. Under the operation of a turnaround firm, the for-profit hospital closed and filed for bankruptcy protection in July. After unsuccessful attempts to sell the facility, the hospital auctioned off much of its equipment and other assets and finally sold the building itself in December.