STATE OF NEW JERSEY VS. FRANK CAMPIONE AND HOWARD KATZ (18-05-0685, MONMOUTH COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-1709-18T2
A-1710-18T2
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
February 24, 2020
v.
APPELLATE DIVISION
FRANK CAMPIONE and
HOWARD KATZ,
Defendants-Respondents.
__________________________
Argued October 21, 2019 – Decided February 24, 2020
Before Judges Sabatino, Sumners and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 18-05-
0685.
Maura Kathryn Tully, Assistant Prosecutor argued the
cause for appellant (Christopher J. Gramiccioni,
Monmouth County Prosecutor, attorney; Maura
Kathryn Tully, of counsel and on the briefs).
Alton D. Kenney argued the cause for respondent Frank
Campione (Starkey, Kelly, Kenneally, Cunningham &
Turnbach, attorneys; Alton D. Kenney, on the brief).
Robert A. Honecker, Jr., argued the cause for
respondent Howard Katz (Ansell, Grimm and Aaron,
PC, attorneys; Robert A. Honecker, Jr., of counsel and
on the brief).
Jodi Claire Krugman, Deputy Attorney General, argued
the cause for amicus curiae the Attorney General of
New Jersey in A-1709-18 (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Jodi Claire Krugman, on
the brief).
The opinion of the court was delivered by
GEIGER, J.A.D.
On leave granted, plaintiff State of New Jersey appeals from a November
16, 2018 order dismissing all counts of superseding Indictment No. 18-05-0685,
in its entirety, against defendants Frank Campione and Howard Katz. The order
also denied defendants' motion to sever without prejudice and compelled the
State to "provide the [d]efendants with the names and addresses of any and all
expert witnesses contacted by the State to review the file for this matter." The
State also appeals from a December 19, 2018 order: (1) denying its motion to
reconsider and vacate the discovery aspects of the November 16, 2018 order;
and (2) ordering the State to "provide the [motion court] with a list of the names,
addresses, and any oral or written opinions, and summaries thereof, of all expert
witnesses contacted by the State in reference to this case for in camera review
by Friday, December 21, 2018." We consolidate the appeals for purposes of
issuing a single opinion.
Following our review of the record, we affirm in part and reverse in part
the November 16, 2018 order, and reverse the December 19, 2018 order.
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I.
Campione is a licensed physician assistant and the managing member of
Acute Medical Housecalls, LLC (Acute). Katz is a licensed physician who
began supervising Campione in 2011.
In September 2012, Campione and Katz entered into a written contract
whereby Campione would be responsible for the day-to-day operations of Acute,
including "perform[ing] H&Ps and procedures for patients in the home setting,"
"scheduling of patients," "maintaining patient health records/charts,"
"performing all patient eligibility checks for treatment," "order[ing] and
fund[ing] all prescription blanks," and "handl[ing] all calls during and after
hours for patients." Katz agreed to "perform the duties of a supervising
physician." His responsibilities included "review[ing] and sign[ing] all charts
within seven (7) days of visit" and "maintain[ing] licensing for himself and
compl[iance] with all rules and regulations as required by the New Jersey Board
of Medical Examiners (Board)." Under this contractual arrangement, Campione
would receive eighty percent of Acute's net profits and Katz would receive the
remaining twenty percent.
The Investigation
A-1709-18T2
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The Monmouth County Prosecutor's Office (Prosecutor's Office)
investigated Campione and Katz as part of its efforts to stem the proliferation of
prescribed opioids that were not medically necessary. According to the State,
the investigation revealed the following alleged facts.
In October 2015, the Prosecutor's Office received information from a
Middletown Police Department detective that K.M.1 and an associate were
arrested for possession and distribution of prescription medications that were
controlled dangerous substances (CDS). K.M. told police he had purchased the
prescription blank 2 he used to obtain the CDS from an individual purporting to
be a physician inside a McDonald's restaurant in Neptune Township. The
prescription blank was recovered by police. It was issued by the office of Frank
Campione, RPA-C, Acute Medical Housecalls, LLC, and listed Howard Katz,
D.O., as Campione's supervising physician.
Upon receiving this information, the Prosecutor's Office began
investigating Campione's medical practices. A subpoena duces tecum was
served on New Jersey Division of Consumer Affairs requesting all information
1
We refer to Campione's patients by initials to protect their privacy. See R.
1:38-3(a).
2
Our references to a "prescription blank" mean a completed and signed
prescription form for a prescription legend drug, a drug that can only be procured
by prescription.
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relating to Campione from the New Jersey Prescription Monitoring Program
(NJPMP) from January 1, 2015 through November 5, 2015. Documents
revealed that Campione had prescribed medication to 166 patients. K.M. had
been prescribed fifteen separate prescriptions for Adderall, Oxycodone, and
Xanax between January 1, 2015 and September 21, 2015.
An investigator in the Division of Consumer Affairs Enforcement Bureau
advised the detective that Campione had a Physician's Assistant's license that
was valid through August 31, 2017. The investigator also informed the detective
there appeared to be no affiliation between Campione's practice, Acute, and
Katz's medical practice in Colts Neck.
A subpoena duces tecum served on Comcast revealed the identity of the
subscriber for the phone number listed on Campione's prescription blank to be
Campione's wife, and the address used for the account to be their residence in
Brick Township.
On December 2, 2015, as a result of information gathered during the
investigation, detectives arrested and charged K.M. with fifteen counts of
obtaining controlled dangerous substances by fraud, N.J.S.A. 2C:35-13. During
a post-arrest interview, K.M. told the detectives he was referred to "Dr. Frank"
by a third-party who he met at a methadone clinic. K.M. described where he
met Campione, once inside a McDonald's restaurant in Neptune, and later inside
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Campione's vehicle. K.M. also described his interactions with Campione,
including the examinations that took place, the prescriptions that he was
provided, and how much he paid Campione each time.
Detectives had K.M. call Campione and set up a controlled buy.
Campione instructed K.M. to meet him at the Monmouth Mall the following day.
The next day, investigators outfitted K.M. with a recording device and drove
him to the Monmouth Mall parking lot to meet Campione. Detectives observed
the meeting from a distance. When Campione arrived, detectives observed an
unknown male, later identified as P.S., exit a vehicle and enter the front
passenger seat of Campione's SUV. 3 P.S. eventually exited the vehicle,
whereupon Campione drove over to where K.M. was standing.
K.M. entered Campione's SUV and provided him with his previous
prescription bottles. In return, Campione provided K.M. with completed
prescription blanks to be filled at a pharmacy and K.M. paid Campione $175 in
cash. As K.M. attempted to exit the vehicle, Campione told him not to "runaway
yet" because Campione was "not just somebody who hands out scripts," and he
needed to "do a few things." Although it is unclear from the audio recording
3
NJPMP records revealed that P.S. had received twenty-one prescriptions from
Campione between January 2015 and December 2015.
A-1709-18T2
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what occurred during the examination, there was mention of a check of K.M.'s
breathing, blood pressure, and the amount of oxygen in his blood.4 The
examination lasted less than two minutes. There was also some discussion about
whether K.M. was taking his medications at the appropriate times.
K.M. then exited the vehicle. After the completion of the controlled buy,
K.M. turned over prescriptions for Xanax, Oxycodone, and Adderall that
Campione had just issued.
In December 2015, detectives served a subpoena duces tecum upon Katz
for records relating to Acute. According to a detective's affidavit and grand jury
testimony, Katz informed the detectives on December 14, 2015 that he was not
involved in Acute's day-to-day practice. Katz explained that Campione's "role"
was to meet with patients who were confined to their homes, or that were unable
to travel to a doctor's office. Katz told the detectives that he does not review the
prescription medications Campione prescribed for patients. Katz provided the
detectives with an Excel spreadsheet list of "active" patients that he had received
from Campione's wife on October 7, 2015. Detectives stated that K.M. was not
on the list of active patients. Katz denied knowing who K.M. was, and likewise
could not find him listed as a patient. From a later check of the NJPMP, it was
4
Although checking a patient's vital signs may have been appropriate,
measuring vital signs alone appear inadequate to substantiate the medical
necessity for CDS prescriptions.
A-1709-18T2
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learned that twenty-three patients who had received medications from Campione
were not on the Excel patient list provided by Katz.
A subpoena duces tecum was also served on TD Bank for financial records
pertaining to Campione and Acute from January 1, 2015 to December 20, 2015.
On February 2, 2016, P.S. was arrested and charged with two counts of
obtaining CDS by fraud, N.J.S.A. 2C:35-13. According to the detective's
affidavit, during his post-arrest interview, P.S. informed detectives about his
December 3, 2015 meeting with Campione in his vehicle at the Monmouth Mall
parking lot. After Campione checked P.S.'s "basic vital signs," Campione gave
P.S. two prescriptions for opioids. P.S. paid Campione $125 and exited the
vehicle. P.S. further informed detectives that he had been seeing Campione for
a couple years and several of their interactions occurred in the same manner.
P.S. also stated Campione was originally prescribing him Percocet for
pain management. According to P.S., however, Campione received a letter from
"the Board" that stated Percocet should not be used for chronic pain. As a result,
Campione switched the medication from Percocet to Opana (oxymorphone),
another opioid pain medication. When P.S. felt Opana was not working well
enough, Campione also began prescribing him Hydromorphone. P.S. stated
these two medications were what he had been prescribed by Campione "for quite
a while."
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The Prosecutor's Office applied for a warrant to search Campione's
residence, business, and vehicle for evidence of the unlawful practice of
medicine, unlawful distribution of CDS, conspiracy to obtain CDS by fraud, and
related offenses. A judge granted the search warrants, finding probable cause
based on an affidavit that detailed the results of the investigation.
The search warrants were executed on February 18, 2016. On that same
day, Campione was arrested and charged with second-degree distribution of
prescription medication, N.J.S.A. 2C:35-5(b)(4); third-degree unlawful practice
of medicine, N.J.S.A. 2C:21-20; and third-degree conspiracy to obtain a
controlled dangerous substance by fraud, N.J.S.A. 2C:5-2(a)(l) and N.J.S.A.
2C:35-13.
Campione moved for a probable cause hearing. After a testimonial
hearing, the motion court found that there was probable cause to charge
Campione with the crimes contained in the warrant and denied his motion to
dismiss the complaints.
Campione subsequently moved to reopen the probable cause hearing
pursuant to Rule 1:7-4(b). He also moved to dismiss the complaint pursuant to
Rule 3:25-3, claiming there was an unreasonable delay in presenting the charges
to a grand jury. On September 15, 2016, the court denied the motions.
A-1709-18T2
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Shortly thereafter, Campione filed a renewed motion to dismiss the
complaint pursuant to Rule 3:25-3. The court denied the motion as moot after
being informed that Campione intended to testify before the grand jury.
The First Indictment
On March 16, 2017, a Monmouth County Grand Jury returned Indictment
No. 17-03-0313 charging Campione with a single count of third-degree unlawful
practice of medicine, N.J.S.A. 2C:21-20. Both Campione and Katz testified
before the grand jury. Notably, Katz was not indicted by the grand jury.
Campione next moved to dismiss the indictment, contending he was being
prosecuted for a "non-crime." On May 25, 2018, the motion court issued an
order and forty-four-page written opinion denying the motion. The court found
"the State presented sufficient evidence to the grand jury that [Campione] held
himself out to some patients as a doctor of medicine, rather than as a physician
assistant." The court noted the evidence included a voicemail message left by
Campione for K.M., where he "can be heard saying, 'This is Dr. Frank.'" The
court also noted the State presented evidence "that other patients believed
[Campione] held himself out to be a medical doctor." The grand jury testimony
of Detective Hunter Brockriede described statements by three other patients who
told detectives that Campione identified himself as a medical doctor. The court
determined the State presented "'some evidence' that [Campione] may have held
A-1709-18T2
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himself out to patients as a medical doctor, in violation of N.J.S.A. 2C:21-
20(c)."
The court further found the State presented "some evidence" to the grand
jury that Campione violated N.J.S.A. 2C:21-20(d) by engaging in an activity for
which a license is necessary, when he prescribed CDS "without prior
consultation with his supervising physician, in violation of N.J.S.A. 45:9-
27.19(a)(1)," for non-terminal patients. The court concluded that "[i]f
[Campione] was prescribing [CDS] in violation of the statute, then he was
engaging in activity that was outside the scope of his healthcare license." Thus,
it determined the State presented sufficient evidence to demonstrate a violation
of N.J.S.A. 45:9-27.19. The court also found the State presented evidence that
Campione prescribed CDS to patients during their first meeting without
reviewing their medical records beforehand.
The motion court also rejected Campione's argument that Brockreide
misled the grand jury by testifying that, "many patient charts were unsigned."
The court noted that N.J.S.A. 45:9-27.18 requires patient charts prepared by a
physician's assistant to be countersigned by their supervising physician.
Investigators seized medical charts that were not countersigned by Katz during
the search of Campione's residence and vehicle. The court found the charts were
not reviewed or countersigned by Katz electronically.
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The court also rejected Campione's argument that the State did not present
exculpatory evidence to the grand jury, claiming investigators did not seize
inactive patient files from his residence. The court concluded Campione did not
"demonstrate how the prosecutor's presentment of the inactive files would have
directly negated [Campione's] guilt and that the files were clearly exculpatory."
The court noted the State alleged there were eighty-six patients that Campione
had not disclosed to Katz, based on a comparison of the files seized from Katz
to the list of patients obtained from the NJPMP and the list Katz provided to law
enforcement.
The court further rejected Campione's argument that the State made
inaccurate statements about Physician Assistant Licensing Act (PALA),
N.J.S.A. 45:9-27.10 to .28, to the grand jury. The court found the instructions
given to the grand jury were not inaccurate, much less "blatantly wrong." The
court likewise rejected Campione's argument that Brockriede did not answer a
grand juror's question regarding the timing of countersigning by a supervising
physician.
The Second Indictment
The State subsequently sought a superseding indictment against both
Campione and Katz. Brockriede testified during the second grand jury
proceeding. He presented the grand jury with the statements of eighteen
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individuals who had obtained CDS prescriptions from Campione. The
statements were used in support of the State's argument that Campione and Katz
had used their involvement in Acute to provide CDS prescriptions, in exchange
for cash, without medical justification.
On May 24, 2018, the grand jury returned superseding Indictment No. 18-
05-0685. Both Campione and Katz were charged with third-degree conspiracy
to commit the crime of unlawful practice of medicine, N.J.S.A. 2C:5-2, N.J.S.A.
2C:2-6, and N.J.S.A. 2C:21-20(a), (c), (d) (count one); third-degree unlawful
practice of medicine, N.J.S.A. 2C:21-20(a) (count two); third-degree unlawful
practice of medicine, N.J.S.A. 2C:21-20(c) (count three); and third-degree
unlawful practice of medicine, N.J.S.A. 2C:21-20(d) (count four).
Only Campione was charged, in the same indictment, with thirteen counts
of third-degree distribution and/or dispensation of CDS, N.J.S.A. 2C:35-5(b)(5)
(counts five, seven, eight, ten, twelve, thirteen, sixteen, seventeen, twenty,
twenty-two, twenty-four, twenty-seven, and twenty-nine); eleven counts of
third-degree distribution and/or dispensation of CDS, N.J.S.A. 2C:35-5(b)(13)
(counts six, nine, eleven, fourteen, fifteen, eighteen, nineteen, twenty-one,
twenty-three, twenty-five, and twenty-six); fourth-degree distribution of CDS,
N.J.S.A. 2C:35-5(b)(14) (count twenty-eight); fourth-degree possession of a
prohibited weapon or device (hollow point bullets), N.J.S.A. 2C:39-3(f) (count
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thirty); and fourth-degree possession of a prohibited weapon or device (brass
knuckles), N.J.S.A. 2C:39-3(e) (count thirty-one).5
The Dismissal Motion
On August 15, 2018, Katz and Campione separately moved to dismiss the
superseding indictment. Following a hearing on October 29, 2018, a different
judge issued a November 16, 2018 order and oral decision granting the motion,
dismissing the indictment in its entirety as to both defendants. The motion court
engaged in the following analysis.
As to the first count charging Campione and Katz with conspiracy to
commit the unlawful practice of medicine, the court stated:
The State alleges the mere fact that the
defendants had a written contractual agreement for
Acute Medical House Calls LLC shows their intent to
enter into a conspiracy. However, creating a limited
liability company is not a criminal act. It's more
reasonable to assume that the lack of a memorialized
business organization infers intent to enter into a
criminal conspiracy. Therefore the [c]ourt finds Katz
and Campione formed Acute Medical House Calls to
establish a legitimate legal business, not to engage in a
conspiracy. In fact, it was Campione's company, Katz
was a supervising physician and/or independent
contractor.
The State also alleges that this agreement
combined with Campione prescribing CDS to patients
without Katz' oversight could create an inference that
5
For ease of reference, we attach a table setting forth the charges, criminal code
citation, and defendant charged for each of the thirty-one counts.
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defendants intended to engage in a criminal conspiracy.
However, there's evidence that Katz did supervise
Campione in his role as a physician assistant in
electronically reviewing patients' files every week or
discussing the files with Campione on a regular basis.
Det. Mazariegos testified that Katz met with Campione
at least once a week to review patient files, indicating
Katz was supervising Campione to some extent.
During the first Grand Jury proceeding the State
called multiple witnesses who testified that they never
saw Katz, and that Campione wrote the prescriptions on
the first visit without having first reviewed their files.
However, Melinda Campione, Campione's wife and
office manager[,] submitted a sworn statement noting
that she would ask patients medical history questions
before Campione or Katz ever received the files. None
of these witnesses could have accurately testified to the
conversations that Katz and Campione had in reviewing
patient files or as to whether or not Katz and Campione
actually reviewed their files.
The State misled the Grand Jury, making it seem
as though Katz never signed or approved any patient
files, specifically referring to the "Katz file" found in
Campione’s car. However, Campione and Katz rebut
the argument for the more reasonable inference that the
file was in the car to be transported to Katz for
approval. Additionally[,] there's evidence that the
number of patients actually receiving CDS from
Campione was a small fraction of the patients he saw.
If Katz and Campione wished to engage in a criminal
conspiracy to profit from the illegal distribution of CDS
the number of patients receiving CDS prescriptions
would be much higher than the approximately five
percent of patients submitted.
Moreover, it's undisputed that Campione
administered physical exams to the patients, albeit
cursory ones. Campione wrote the prescriptions for his
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patients and it was up to the patients to go to a
pharmacy to actually fill the prescription. The [c]ourt
finds, giving the State the benefit of all reasonable
inferences, the indictment could not be sustained and
there's no sufficient actual or circumstantial evidence
to infer that Katz and Campione were engaged in a
conspiracy and [c]ount [one] will be dismissed
accordingly.
As to counts two, three, and four, charging Campione and Katz with the
unlawful practice of medicine, the court stated:
Katz and Campione cannot be charged under
N.J.S.A. 2C:21-20(a), (c) or (d) because both
defendants had the proper licensure from the State of
New Jersey at the time of the indictment. There's no
evidence to suggest that either defendant had suspended
or revoked licenses at the time of the indictment or the
alleged offenses. Although there's evidence that Katz
and Campione may have exceeded the scope of their
licenses to some extent, neither were charged under
N.J.S.A. 2C:21-20(b) for exceeding the scope of
practice permitted by Board order.
As to the alleged violation of PALA by treating patients in personal
vehicles, rather than in a traditional medical care setting, the court found the
State failed to read PALA in its entirety. The court noted N.J.S.A. 45:9-27.15(a)
permits a physician assistant to "practice in all medical care settings, including ,
but not limited to, a physician's office, a health care facility, an institution, a
veteran's home, or private home." The court further noted that two other judges
had "previously stated that there was nothing criminal about Campione seeing
patients in his vehicle." The court found "there's no law that prevents medical
A-1709-18T2
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professionals from seeing patients in a vehicle." The court stated patients are
treated in ambulances every day, and "there's no law that distinguishes the use
of a vehicle for medical purposes in emergent versus non emergent situations."
Regarding the allegation that Campione unlawfully held himself out as a
physician, the court stated:
The weight of the evidence shows Campione
made it clear he was a physician assistant. His scrubs
were embroidered with the physician assistant
abbreviation, the literature he distributed noted he was
a physician assistant, the prescription pads Campione
used stated he was a physician assistant, and multiple
patients testified they knew Campione was a physician
assistant. Though a couple of patients may have
referred to Campione as Dr. Campione, his failure to
correct them is not enough to say that the held himself
out to be a doctor.
Even though one voice mail from [K.M.'s] phone
may have stated Campione once referred to himself as
Dr. Campione, there's some dispute as to whether
Campione actually referred to himself as doctor in the
voice mail. The [c]ourt finds this isolated reference is
not enough to support the conclusion that he held
himself out to be a doctor. 6
As to Katz's lack of direct supervision of Campione, the court stated:
There is evidence that Katz may not have supervised
Campione to the extent that he should have, and some
evidence shows that the appropriate forms may not
have been filed with the [Board].
6
The court reiterated this point in its analysis of the dismissal of counts five
through twenty-nine.
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However[,] N.J.S.A. 45:9-27.15(b) specifically
states that a "violation of any of the conditions of this
section shall be deemed to have engaged in professional
misconduct." . . . Furthermore, N.J.S.A. 45:9-27.17
states that any supervising physician who allows a
physician assistant to practice contrary to the
provisions of N.J.S.A. 45:9-27.10 "shall be deemed to
have engaged in professional misconduct and shall be
subject to disciplinary action by the Board." . . .
If Katz did indeed fail to properly supervise
Campione, or if the appropriate notice of employment
was not provided to the [Board] then this issue should
be resolved according to that statute as a professional
misconduct violation, not a criminal violation.
The State also argues Campione violated
N.J.A.C. 13:35-2B.12(c) by exceeding the legal
restrictions for prescribing controlled dangerous
substances. The State contends that Campione
prescribed CDS without Katz issuing the initial
prescription and without consulting Katz before issuing
the prescription.
....
Katz and Campione could have discussed
prescribing CDS to their patients via telephone,
electronic communication or in person. Just because
Campione is required to consult with Katz before
prescribing CDS to a patient doesn't mean Katz is
required to see every patient before Campione writes a
CDS prescription.
The [c]ourt finds these alleged violations to be
regulatory in nature, not criminal.
As to Katz's failure to file a "notice of employment" with the Board, the
court concluded that "if the appropriate notice of employment was not provided
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to the [Board] then this issue should be resolved according to [N.J.S.A. 45:9-
27.15(b)] as a professional misconduct violation, not a criminal violation."
As to counts five through twenty-nine, charging Campione with various
CDS offenses, the court concluded the indictment should be dismissed because
of multiple instances where the State did not present evidence to the grand jury.
The court described the following examples:
First, the State presented the case to grand jurors
as if Katz and Campione were running an illegal CDS
distribution business disguised as Acute Medical House
Calls LLC when in fact the number of patients that were
on CDS was a small fraction of the practice's overall
patient account.
If Katz and Campione were in business to
illegally distribute CDS for profit, the number would
most certainly be higher. In fact, Campione provided a
number of services to patients, including administering
influenza vaccinations, seeing elderly housebound
patients in their homes and providing healthcare access
to those who may not have been able to see a doctor in
a formal office setting for lack of insurance.
[K.M. and P.S.], two of the patients referenced by
Det. Mazariegos, were prescribed CDS after they had
been sent for MRIs by Campione. Both patients had
been diagnosed with conditions warranting the
prescription of CDS.
Additionally, as Katz noted in his brief, patients
obtaining CDS would have to be screened through the
prescription monitoring program at a pharmacy. To
infer that Katz and Campione were running a for-profit
drug distribution business is a gross
mischaracterization of the facts. Indeed, review of the
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prescription monitoring program would have shown if
Campione was over-prescribing CDS to individuals.
....
Third, the State led the [g]rand [j]ury to believe
that the prescriptions Campione was writing were
illegal or invalid. Campione was a licensed physician
assistant, he had the ability to prescribe medication to
his patients in accordance with the law. Det.
Mazariegos concluded that the prescriptions issued by
Campione were legitimate, yet this evidence was not
presented to the second Grand Jury. No evidence has
been proffered to suggest that Campione was writing
prescriptions in violation of New Jersey State law or
that the prescriptions he wrote were invalid.
Fourth, the State misled the Grand Jury during
the second presentation because the Assistant
Prosecutor told the Grand Jury they were only
considering the matter of State versus Frank Campione.
The State never told the Grand Jury that Katz was a
target.
Katz was not invited to appear at the second
Grand Jury presentation and he doesn't have to be, but
nor was his testimony given under oath from the first
Grand Jury presentation read to the new Grand Jury.
Katz was only considered a target after a Grand Jury
posed a question to the Assistant Prosecutor asking
whether charges were being considered against him.
Fifth, the State misled the Grand Jury by overly
emphasizing the fact that Campione saw some of his
patients in a vehicle. By this point the State was well-
aware there was nothing criminal about seeing patients
inside a vehicle, yet the State still presented the case as
though there were something criminal about the
location of Campione's practice. As previously noted,
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there's no statute or regulation that prohibits Campione
from examining patients in a vehicle.
The State also misled the Grand Jury by showing
the jurors a number of texts that had little to no
probative value in the case. One text in particular
stated, "[M.] in rehab, won't be home until next week."
The jury was left to infer that rehab meant drug rehab,
yet this patient was never admitted to any drug
rehabilitation facility and was never prescribed any
controlled dangerous substances by Katz or Campione.
In fact, this patient was in a subacute rehabilitation
facility after he was discharged from a hospital. This
was a strategic move by the State to mislead the [g]rand
[j]ury into thinking that Katz and Campione were in
business to supply CDS to drug seeking patients.
Finally, the State consistently misstates
Campione's patients were paying for prescriptions.
Katz and Campione have consistently stated patients
paid for their visits, the outpatient setting, and the
examination. Katz and Campione did not provide
patients with medication. Patients were required to
take their prescriptions to a pharmacy to have them
filled in order to obtain any medications. Multiple
patients testified they paid a flat fee for their visit
regardless of how many prescriptions if any they were
given by Campione. There's no evidence to support the
statement that Katz and Campione charged their
patients for prescriptions.
As to count thirty, which charged Campione with unlawful possession of
hollow point bullets, and count thirty-one, which charged Campione with
unlawful possession of brass knuckles, the court stated:
No evidence of the hollow point bullets or the
brass knuckles was presented to the first Grand Jury.
However, the evidence was presented to the second
A-1709-18T2
21
Grand Jury after the rejection of the global settlement
offer. The State was aware of the bullets and the brass
knuckles during the first Grand Jury proceeding yet did
not present this evidence.
Based on our Supreme Court’s holding in State v.
Gregory, 66 N.J. 510 (1975), the State was required to
present evidence of the hollow point bullets and the
brass knuckles at the first Grand Jury proceeding
because the State was aware of Campione’s possession
of those items at the time of the proceeding.
Accordingly, [c]ounts [thirty] and [thirty-one] have to
be dismissed.
Campione then orally moved to compel the State to provide the names and
addresses of any additional experts the State had asked to review the file in this
matter. Over the State's objection, the court granted the motion, and ordered the
State to "provide the [d]efendants with the names and addresses of any and all
expert witnesses contacted by the State to review the file for this matter." The
court concluded it was reasonable to require the State to identify the experts it
consulted with because if the State were to successfully appeal from the
dismissal, the defense "would conceivably need to get their own expert. And
they certainly don't want to contact somebody that [the State had] contacted."
The Reconsideration and Discovery Issues
The State moved for reconsideration of the November 16, 2018 order
regarding the additional expert discovery, contending the discovery issue was
moot due to the dismissal of the indictment. Alternatively, it argued that even
A-1709-18T2
22
if not moot, defendants were not entitled to such discovery. Following a hearing
on December 17, 2018, the motion court orally ruled that the discovery issue
was not moot because the State intended to appeal the dismissal of the
indictment and the State was proceeding with civil forfeiture action against the
property seized from Campione. The court further stated:
Rule 3:13-3(b) governs post-indictment
discovery. The comments to the rule state the rule
requires discovery to defendant respecting proposed
expert witnesses in general in the same manner as is
provided in the Civil practice.
The [c]ivil counterpart is Rule 4:10-2(d)(3). That
rule states a party may discover[] facts known or
opinions held by an expert other than the expert who is
conducting an examination pursuant to Rule 4:19 who
has been retained or specially employed by another
party in anticipation of litigation or preparation for trial
and it was not expected to be called as a witness for
trial, only upon the showing of exceptional
circumstances under which it is impractical for the
party seeking discovery to obtain facts or opinions on
the same subject by other means.
The court then engaged in a Brady7 analysis, concluding since "the State
received information for a potential expert witness exculpating defendants, the
State had a duty under Brady to turn that information over to defendants as a
matter of due process." The court found it necessary to undertake an in camera
7
Brady v. Maryland, 373 U.S. 83 (1963).
A-1709-18T2
23
review of the names, addresses, reports, and opinions of the expert witnesses
contacted by the State in order to determine whether a Brady violation occurred.
In response to the State's argument, that discovery of its experts was moot
due to the dismissal of the indictment, the court stated:
Here, the defendant Campione had his license
indefinitely suspended by the Board . . . and has a case
pending there. His license will not be reinstated until
this criminal matter is resolved apparently.
As long as this case is possibly being appealed
the issue [of the identity and findings of the consulting
expert] is not moot. Moreover, as the State also has
forfeiture proceedings going forward and they are
simply not dismissing those, then it is not moot.
Should the State not decide to appeal then the
discovery issue would then be moot and the criminal
indictment would remain dismissed.
In response to defense counsel's request for additional discovery regarding
potential experts, the court issued a December 19, 2018 order requiring the State
to "provide the [c]ourt with a list of the names, addresses, and any oral or written
opinions, and summaries thereof, of all expert witnesses contacted by the State
in reference to this case for in camera review."
The Board's Civil Proceedings and the Consent Order
In February 2016, the Board brought administrative proceedings against
Campione "upon receipt of information that [Campione] was suspected of
engaging in the indiscriminate prescribing of [CDS], including the prescribing
A-1709-18T2
24
of CDS without legitimate medical purpose, in violation of N.J.A.C. 13:45H-7.4
and that [Campione] may have been practicing contrary to the provisions of
[PALA]." Campione consented to the temporary suspension of his physician
assistant license. On March 31, 2016, the Board entered an interim consent
order (interim order) suspending Campione's physician assistant license pending
further order of the Board and his CDS registration pending further order of the
Director of the Division of Consumer Affairs. The interim order directed that
Campione "immediately cease and desist from prescribing or dispensing
medications and from practicing as a physician assistant." The interim order
further provided: "[Campione] understands that this Interim Consent Order is
independent of, and not in lieu of, proceedings on behalf or by the DEA, and
further agrees that resolution of any pending DEA matters will not resolve any
matter which has, or could, be brought before the Board or the Director." The
parties stipulated that entry of the order was "without admission of any
wrongdoing by [Campione]."
On March 27, 2019, Campione appeared before a Preliminary Evaluation
Committee of the Board to discuss the pending investigation. Campione
subsequently agreed to the entry of a September 24, 2019 consent order (consent
order) that, in pertinent part: (1) suspended Campione's physician assistant
license and CDS registration for a period of three years, retroactive to March
A-1709-18T2
25
31, 2016; (2) required Campione to successfully complete Board-approved
ethics, HIPAA, recordkeeping documentation, and CDS prescribing courses; (3)
prohibited Campione from prescribing CDS until he successfully completed the
CDS prescribing course; (4) limited Campione's practice "to meeting with and
treating patients in a traditional medical setting such as a doctor's office, clinic,
hospital or urgent care center" and prohibited "meeting with and treating patients
and/or otherwise practicing outside of such a traditional, physical office
location, including, but not limited to, mobile settings, in-home visits, nursing
home facilities, assisted living facilities and private residences"; (5) required
Campione to be supervised by a physician who had been pre-approved by the
Board, and who must co-sign all of Campione's medical records and approve all
prescriptions provided to patients; and (6) rendered Campione responsible for
the costs and fees of the Board's investigation, totaling $48,837.94 . The costs
and fees are stayed unless and until Campione is found in violation of the terms
of the consent order, at which time they shall become due and owing.
Notably, the consent order further states:
10. The entry of this Order is without prejudice to
further action, investigation, and prosecution by this
Board, the Attorney General, the Drug Control Unit, the
Director of the Division of Consumer Affairs, or any
other law enforcement entities based upon
[Campione's] conduct prior or subsequent to entry of
this Order and not addressed by the terms of this Order.
A-1709-18T2
26
11. The Board reserves the right to vacate this Order
and initiate further action against [Campione's] license
and CDS Registration in the event the dismissed
Superseding Indictment against [Campione] referenced
above is reinstated at any time and a resolution of the
criminal matter results in a conviction and/or admission
of guilt to any of the charges contained therein.
The consent order concluded the Board's investigation of Campione,
subject to reactivation in the event the superseding indictment was reinstated,
and the criminal proceedings resulted in a conviction or admission of guilt.
The State's Appeal
The State appealed from both the November 16, 2018 and December 19,
2018 court orders. We granted the State's application to stay the December 19,
2018 order. These appeals are advanced by the County Prosecutor. We
permitted the Attorney General to appear as an amicus, and he elected to have a
Deputy Attorney General in the Division of Law do so.
The State raises the following points on appeal:
POINT I
THE TRIAL COURT ABUSED ITS DISCRETION
AND MISAPPLIED THE LAW IN DISMISSING
COUNTS 1 THROUGH 29 OF THE INDICTMENT
AS THE STATE PRESENTED MORE THAN
SUFFICIENT EVIDENCE TO THE GRAND JURY
THAT DEFENDANTS COMMITTED SUCH
CRIMINAL OFFENSES.
A. Standard of Review.
A-1709-18T2
27
B. The Lower Court Erred in Ruling That
Defendants' Actions Could at Most Constitute
Administrative Violations, Not Criminal
Offenses.
C. The Evidence of Defendants' Conduct in
Violating the PALA as Presented to the Grand
Jury Demonstrates a Prima Facie Case of
Unlawful Practice of Medicine in Violation of
N.J.S.A. 2C:21-20a and 20d. The Lower Court
Abused Its Discretion and Misapplied the Law in
Dismissing Counts 2 and 4.
1. Defendants Violated the PALA by
Campione Treating Patients in a Non-
Medical Care Setting.
2. Defendants Violated the PALA by
Campione Treating Patients and
Prescribing CDS Without Appropriate
Supervision by Katz, and by Failing to File
the Required Notice of Employment With
the State.
D. The Evidence of Defendants' Conduct as
Presented to the Grand Jury Demonstrates a
Prima Facie Case of Unlawful Practice of
Medicine in Violation of N.J.S.A. 2C:21-20c, as
Defendant Campione Unlawfully Held Himself
Out as a Licensed Physician to Numerous
Patients. The Lower Court Abused its Discretion
in Dismissing Count 3.
E. The State Presented a Prima Facie Case of
Conspiracy Between Campione and Katz. The
Lower Court Abused Its Discretion is Dismissing
Count 1.
F. The State Presented a Prima Facie Case of
Numerous Instances of Unlawful CDS
A-1709-18T2
28
Distribution and/or Dispensation by Campione.
The Lower Court Abused Its Discretion and
Misapplied the Law in Dismissing Counts 5
through 29.
POINT II
UNDER STATE V. HOGAN, 144 N.J. 216 (1996),
THE STATE HAS NO OBLIGATION TO PROVIDE
NON-EXCLUPATORY EVIDENCE TO THE
GRAND JURY, NOR WAS ITS PRESENTATION IN
ANY WAY MISLEADING.
A. The Lower Court Improperly Expanded the
Duties of the Prosecutor as Set Forth in State v.
Hogan, 144 N.J. 216 (1996).
B. The State Did Not Mislead the Grand Jury.
POINT III
THE LOWER COURT ABUSED ITS DISCRETION
AND MISAPPLIED THE LAW IN DISMISSING
COUNTS 30 AND 31. THE STATE HAD NO
OBLIGATION TO PRESENT EVIDENCE OF
DEFENDANT CAMPIONE'S POSSESSION OF
PROHIBITED WEAPONS TO THE FIRST GRAND
JURY.
POINT IV
THE LOWER COURT ABUSED ITS DISCRETION
BY ORDERING POST-DISMISSAL DISCOVERY.
A. The Lower Court Abused Its Discretion in
Ordering Post-Dismissal Discovery as a Case in
Controversy No Longer Existed.
A-1709-18T2
29
B. The Law Does Not Entitle Defendants to the
Discovery They Seek.
II.
"No person shall be held to answer for a criminal offense, unless on the
presentment or indictment of a grand jury, except in cases" not applicable here.
N.J. Const. art. I, ¶ 8. "[T]he grand jury is asked to determine whether 'a basis
exists for subjecting the accused to a trial.'" State v. Hogan, 144 N.J. 216, 227
(1996) (quoting Trap Rock Indus., Inc. v. Kohl, 59 N.J. 471, 487 (1971)).
"Equally significant is its responsibility to 'protect[] the innocent from
unfounded prosecution.'" Id. at 228 (alteration in original) (quoting State v.
Murphy, 110 N.J. 20, 29 (1988)).
An indictment also "inform[s] the defendant of the offense charged
against him, so that he may adequately prepare his defense." State v. Dorn, 233
N.J. 81, 93 (2018) (alteration in original) (quoting State v. LeFurge, 101 N.J.
404, 415 (1986)). Accordingly, an "indictment must allege all the essential facts
of the crime." Ibid. (quoting LeFurge, 101 N.J. at 418). Therefore, "the State
must present proof of every element of an offense to the grand jury and specify
those elements in the indictment." Id. at 93-94 (quoting State v. Fortin, 178 N.J.
540, 633 (2004)).
"While acknowledging the significance of the grand jury's role in our
criminal justice system, [our Supreme] Court has recognized the grand jury's
A-1709-18T2
30
independence and has expressed a reluctance to intervene in the indictment
process." Hogan, 144 N.J. at 228. To that end, our review of the dismissal of
an indictment is guided by the following well-established principles:
An indictment is presumed valid and should only
be dismissed if it is manifestly deficient or palpably
defective. A motion to dismiss is addressed to the
discretion of the trial court and that discretion should
not be exercised except for the clearest and plainest
ground.
At the grand jury stage, the State is not required
to present enough evidence to sustain a conviction. As
long as the State presents some evidence establishing
each element of the crime to make out a prima facie
case, a trial court should not dismiss an indictment. In
a nutshell, a court examining a grand jury record should
determine whether, viewing the evidence and the
rational inferences drawn from that evidence in the
light most favorable to the State, a grand jury could
reasonably believe that a crime occurred and that the
defendant committed it.
[State v. Feliciano, 224 N.J. 351, 380-81 (2016)
(citations omitted).]
"We generally review a trial court's decision to dismiss an indictment
under the deferential abuse of discretion standard." State v. Twiggs, 233 N.J.
513, 532 (2018) (citing Hogan, 144 N.J. at 229). When a decision to dismiss
hinges on a purely legal question, however, our review is de novo and we need
not defer to the motion court's interpretations. Ibid. (citing State v. S.B., 230
N.J. 62, 67 (2017)).
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31
III.
Guided by these principles, we review the dismissal of all thirty-one
counts of the superseding indictment as to both defendants.
Count One: Conspiracy to Commit the Unlawful Practice of Medicine
The State relied on the Acute contract in conjunction with Campione's
prescribing CDS without Katz's oversight in support of its allegation that
Campione and Katz conspired to engage in the unlawful practice of medicine.
The State contends that such a violation of PALA provides the basis for criminal
liability. We are unpersuaded by this argument.
"[T]he agreement to commit a specific crime is at the heart of a conspiracy
charge." State v. Samuels, 189 N.J. 236, 245 (2007). "It is the agreement that
is pivotal." Id. at 246 (citation omitted). To sustain a charge of conspiracy the
State must demonstrate an "overt act." N.J.S.A. 2C:5-2(d). Here, the
superseding indictment listed five overt acts that it alleged were contrary to
N.J.S.A. 2C:5-2, N.J.S.A. 2C:2-6, and N.J.S.A. 2C:21-20(a), (c), (d) (relating to
the unlawful practice of medicine). At its core, the State's listed overt acts
indicate Campione and Katz conspired to violate PALA due to: (1) Katz's
inadequate supervision of Campione; and (2) their failure to file the mandatory
"notice of employment" required prior to 2016.
A-1709-18T2
32
In order to be guilty of conspiracy, a person must, "with the purpose of
promoting of facilitating its commission, agree with another person to "engage
in conduct which constitutes such crime or an attempt to commit such crime."
N.J.S.A. 2C:5-2(a) (emphasis added). An "agreement to commit a specific
crime is at the heart" of the conspiracy statute. State v. Samuels, 189 N.J. 236,
245 (2007). A conspiracy requires an "actual agreement [with another] for the
commission of the substantive crime." State v. Kamienski, 254 N.J. Super. 75,
93 (App. Div. 1992). An agreement to violate civil statutes or regulations is not
a crime.
Contrary to the State's arguments, we conclude that a violation of PALA
is not criminal. PALA explicitly states "[a]ny physician assistant who practices
in violation of any of the conditions specified in subsection a. of this section
shall be deemed to have engaged in professional misconduct." N.J.S.A. 45:9-
27.15(b). Such professional misconduct violations are resolved by the Board.
N.J.S.A. 45:9-27.15(b); N.J.S.A. 45:9-27.17(b). The statutory provisions and
related regulations authorize the Board to suspend or revoke a physician
assistant license, but do not subject a physician assistant or a physician to
criminal sanctions. Indeed, Campione ultimately received a three-year
suspension of his physician assistant license. He is also responsible for costs
A-1709-18T2
33
and fees if he violates the consent order. These are civil penalties, not criminal
sanctions.
As we recently explained in State v. Saad, ___ N.J. Super. ___ (App. Div.
2019):
In addition, we do not accept the premise that the
elements of a crime can be defined by an administrative
regulation, which can be amended or repealed by [the
Board] without involvement of the Legislature.
Moreover, interpreting the statute to incorporate the
regulation would introduce ambiguity as to which acts
constitute criminal behavior, raising serious concerns
regarding notice.
[Slip op. at 12.]
Accordingly, an agreement to promote or facilitate a violation of PALA is not a
criminal conspiracy.
While the State presented enough evidence to the grand jury showing
Campione violated N.J.S.A. 2C:21-20(c) by knowingly holding himself out as a
person eligible to practice medicine, the record does not support the State's
theory that Katz and Campione conspired to make patients believe Campione
was a medical doctor. In addition, there is insufficient evidence that Campione
violated N.J.S.A. 2C:21-20(a) or (d) to impute Campione's alleged unlawful
practice of medicine to Katz. For these reasons, we affirm the dismissal of
count one with prejudice.
A-1709-18T2
34
Counts Two, Three, and Four: Unlawful Practice of Medicine
PALA provides "[a] physician assistant may practice in all medical care
settings, including, but not limited to, a physician's office, a health care facility,
an institution, a veterans' home, or a private home." N.J.S.A. 45:9-27.15(a).
The State argues that a personal vehicle is not a "medical care setting" within
the meaning of PALA. Conversely, Campione argues the statute does not
expressly prohibit a physician assistant from visiting, treating and prescribing
medications in locations determined by the physician assistant and his patients.
Amicus Attorney General of New Jersey disagrees with both positions.
Instead, the Attorney General notes "[f]rom the inception of the PALA, there
were, and continue to be, significant limitations on where and how a physician
assistant is permitted to practice." Although the Attorney General recognizes
the language of the statute suggests a broad legislative intent for interpretation
of "medical care settings," the examples provided by the Legislature reflect
traditional medical care settings. Accordingly, the Attorney General suggests
"it does not necessarily follow that a personal vehicle is an appropriate setting
to provide medical care in all circumstances."
The Attorney General goes on to state:
[F]actors that may be considered include [(1)] whether
the physician assistant was practicing within his scope
of practice and under appropriate supervision, [(2)] the
nature of the patient's condition, and [(3)] whether the
A-1709-18T2
35
setting would provide sufficient space and opportunity
to examine the patient in an appropriate fashion. Also
to be considered is [(4)] whether the setting will permit
the ability to protect patient privacy for the examination
and possible treatment, [(5)] whether patient records
can be appropriately made and maintained, and [(6)]
whether the physician assistant has the ability to consult
with the supervising physician, if needed. Any
emergent needs of the patient and proximity to
emergency services would also be relevant.
[(Footnote omitted).]
The Attorney General concludes that "whether a location is an appropriate
'medical care setting' is fact-sensitive."
The motion court determined that Campione did not violate PALA by
examining and prescribing medications for patients while in a vehicle rather than
a medical care setting. It further determined that examining and treating patients
in a vehicle is not a criminal act. The court noted that patients are routinely
treated in ambulances, residences, and other non-medical settings.
Counts two and four allege Campione and Katz engaged in the unlawful
practice of medicine by failing to have Campione practice "under the direct
supervision of a physician" and failing to provide the appropriate notice of
Campione's employment with the Board, in violation of N.J.S.A. 45:9-
A-1709-18T2
36
27.15(a)(1) and (3).8 Campione and Katz were indicted under N.J.S.A. 2C:21-
20(a) and (d). Campione was also indicted for violation of N.J.S.A. 2C:21-
20(c). Both provisions state:
A person is guilty of a crime of the third degree if he
knowingly does not possess a license or permit to
practice medicine and surgery or podiatric medicine, or
knowingly has had the license or permit suspended,
revoked or otherwise limited by an order entered by the
[Board], and he:
a. engages in that practice;
....
c. holds himself out to the public or any person as being
eligible to engage in that practice;
d. engages in any activity for which such license or
permit is a necessary prerequisite, including, but not
limited to, the ordering of controlled dangerous
substances or prescription legend drugs from a
distributor or manufacturer[.]
The State acknowledges that at all relevant times Campione was a licensed
physician assistant and Katz was a licensed physician. Neither was an imposter.
At the time Campione wrote the prescriptions in question his license
allowed him to do so, subject to proper authorization by a "supervising
physician." N.J.S.A. 45:9-27.19(a)(1). He was registered to prescribe CDS.
8
N.J.S.A. 45:9-27.15(a)(3) was subsequently deleted pursuant to P.L. 2015, c.
224. It was in effect when Campione and Katz are alleged to have committed
the crimes presented in superseding Indictment No. 18-05-0685.
A-1709-18T2
37
His license and registration had not been suspended or revoked, nor had it been
"limited by an order entered by the [Board]." N.J.S.A. 2C:21-20. Thus,
Campione was licensed and registered to prescribe CDS. At no time was Katz's
license suspended.
The motion judge concluded that a physician assistant who violates PALA
is subject to administrative penalties, not criminal sanctions. He further
concluded that defendants did not violate N.J.S.A. 45:9-27.15(a)(1) and (3). We
agree.
As previously noted, violation of PALA by a physician assistant is deemed
professional misconduct. Similarly, "[a]ny physician who permits a physician
assistant under the physician's supervision to practice contrary to the provisions
of [N.J.S.A. 45:9-27.10 to .28] shall be deemed to have engaged in professional
misconduct . . . and shall be subject to disciplinary action by the board."
N.J.S.A. 45:9-27.17(b). Based upon PALA's plain language, we conclude the
Legislature intended PALA violations by licensed practitioners to be resolved
by the Board through civil penalties, not criminal prosecution.9
9
We view the violation of PALA by an unlicensed physician assistant
differently because an unlicensed physician assistant is not permitted to
prescribe medication. See N.J.S.A. 2C:21-20(a) and (d) (criminalizing such
conduct).
A-1709-18T2
38
In the circumstances presented here, Campione's alleged failure to
practice "under the direct supervision of a physician" and the failure to provide
notice of his employment to the Board involve professional misconduct, not
criminal acts. Similarly, Katz's alleged failure to supervise Campione rendered
him potentially liable for civil penalties, not criminal prosecution. Accordingly,
the motion court properly dismissed counts two and four as to both defendants.
The dismissal of counts two and four is with prejudice.
Count three alleges Campione unlawfully engaged in the practice of
medicine by repeatedly holding himself out as a physician, in violation of
N.J.S.A. 2C:21-20(c). The motion judge acknowledged a question of fact
existed as to whether Campione held himself out as a medical doctor. Here, the
State presented "some evidence" to the grand jury that Campione presented himself
as a physician to several patients by referring to himself as a medical doctor. The
State presented the grand jury with at least "'some evidence' as to each element of a
prima facie case." State v. Bennett, 194 N.J. Super. 231, 234 (1984) (quoting State
v. Donovan, 129 N.J.L. 478, 483 (Sup. Ct. 1943)). We reverse the dismissal of count
three as to Campione.
The State presented no evidence to the grand jury that Katz participated in
Campione's alleged act of improperly holding himself out as a physician to patients.
We therefore affirm the dismissal with prejudice of count three as to Katz.
A-1709-18T2
39
Counts Five through Twenty-Nine: Distribution of CDS
Counts five through twenty-seven and twenty-nine charge Campione with
third-degree distribution or dispensation of CDS; count twenty-eight charges him
with fourth-degree distribution of CDS. He argued "[d]espite the absence of any
clearly exculpatory evidence," and without providing a fact-specific analysis of each
count, the motion judge dismissed each of the CDS distribution counts because of
"multiple instances where the State did not present evidence to the Grand Jury,"
resulting in the grand jury receiving "a distorted version of the facts."
The motion court based his ruling on the following aspects of the testimony
presented by the State to the grand jury: (1) presenting the case as if Katz and
Campione were running an illegal CDS distribution business when the number of
patients prescribed CDS was only a small fraction of their patients; (2) repeatedly
referring to Campione as a doctor to mislead the grand jury that he held himself out
as a physician despite the weight of the evidence showing Campione made it clear
he was a physician assistant; (3) leading the grand jury to believe that the CDS
prescriptions were illegal or invalid despite Campione being a licensed physician
assistant who was authorized to prescribe CDS; (4) overly emphasizing that
Campione saw some of his patients in a vehicle; (5) showing the grand jury text
messages that were misleading and had no probative value; and (6) consistently
misstating that Campione's patients were paying for prescriptions rather than a flat
A-1709-18T2
40
fee for visits and examinations in an outpatient setting, regardless of the quantity of
prescriptions issued. The motion court found the State presented no evidence that
Campione wrote illegal or invalid prescriptions. The court also found it significant
that Campione "did not provide patients with medication." Instead, "[p]atients were
required to take their prescriptions to a pharmacy to have them filled in order to
obtain any medications."
The following principles inform our review of the dismissal of the
distribution of CDS charges. 'The grand jury's role is not to weigh evidence
presented by each party, but rather to investigate potential defendants and decide
whether a criminal proceeding should be commenced." Hogan, 144 N.J. at 235.
"Credibility determinations and resolution of factual disputes are reserved
almost exclusively for the petit jury." Ibid.
"In seeking an indictment, the prosecutor's sole evidential obligation is to
present a prima facie case that the accused has committed a crime." Id. at 236.
"A grand jury proceeding is not an adversary hearing in which the guilt or
innocence of the accused is adjudicated." Id. at 235 (quoting United States v.
Calandra, 414 U.S. 338, 343 (1974)). Therefore, prosecutors are generally not
required to "provide the grand jury with evidence on behalf of the accused."
Ibid. However, the State may not "deceive the grand jury or present its evidence
in a way that is tantamount to telling the grand jury a 'half-truth.'" Id. at 236.
A-1709-18T2
41
Nevertheless, because grand jury proceedings are non-adversarial, "incomplete
or imprecise legal interpretations [by the prosecutor] will not warrant dismissal
of the indictment." State v. Laws, 262 N.J. Super. 551, 562 (App. Div. 1993)
(citation omitted). Moreover, "the conduct of a prosecutor should not warrant
dismissal unless it clearly invades the grand jury's decision-making function."
Ibid. (citing State v. Schamberg, 146 N.J. Super. 559, 564 (App. Div. 1977)).
Two factors should be considered in evaluating whether to dismiss counts
of an indictment due to failure to present exculpatory evidence to the grand jury:
(1) does the evidence directly negate guilt; and (2) is it "clearly exculpatory."
Hogan, 144 N.J. at 237. "[O]nly in the exceptional case will a prosecutor's
failure to present exculpatory evidence to a grand jury constitute grounds for
challenging an indictment." Id. at 239.
A licensed physician or physician assistant who is registered to prescribe
CDS is not exempt from criminal prosecution for prescribing medically
unnecessary CDS. State v. Vaccaro, 142 N.J. Super. 167, 172 (App. Div. 1976).
As we explained in Vaccaro:
A physician's license and registration authorizes
him to dispense controlled dangerous substances, but
the statute makes it clear that he is immune from
criminal liability when he dispenses the same "in good
faith . . . in the course of his professional practice only."
If he engages in dispensing or selling such drugs
beyond the necessities of the good faith practice of his
profession, he is no less a 'pusher' of drugs—a
A-1709-18T2
42
criminal—than a layman unadorned by the trappings of
a license or registration. See United States v. Moore,
423 U.S. 77 (1975), for cases involving analogous
federal statute.
....
A physician who is honest and ethical, and
dispenses the prohibited drugs in a good faith effort to
treat and cure patients, has no fear of the criminal
sanctions of the statute. However, his mere status as a
licensed physician who has been properly registered as
a dispenser of the prohibited drugs does not give him
the blanket right to abuse his authority and profession
by dispensing drugs without relation to his sworn
professional obligations. See United States v. Moore;
United States v. Doremus, 249 U.S. 86 (1919); Webb v.
United States, 249 U.S. 96 (1919); Commonwealth v.
Miller, 282 N.E.2d 394 (Sup. Jud. Ct. 1972); State v.
Jacobs, 503 P.2d 826 (Sup. Ct. 1972).
[Id. at 173-74.]
New Jersey physicians have been criminally prosecuted as well as
administratively penalized for prescribing unnecessary CDS. Indeed, physicians
are regularly investigated by the DEA and prosecuted in federal court for
prescribing CDS that is not medically necessary. 10 The fact they were licensed
10
According to one study, 257 criminal cases were initiated against physicians
for drug trafficking, selling, illegally distributing, and racketeering, from 1998
through 2006. Donald M. Goldenbaum, et al., Physicians Charged with Opioid
Analgesic-Prescribing Offenses, 9 Am. Acad. of Pain Med. 737, 744 tbl. 4
(2008). Of those physicians, "79.5% pled guilty or no contest to at least one of
the criminal charges brought against them." Id. at 743. Of those physicians who
pled not guilty, 90.6% were found guilty of at least one criminal charge. Ibid.
A-1709-18T2
43
physicians did not prevent criminal prosecution. See, e.g., United States v.
Maynard, 278 Fed. Appx. 214, 218 (3d Cir. 2008) ("[P]hysicians are subject to
criminal liability 'when their activities fall outside the usual course of
professional practice.'" (quoting Moore, 423 U.S. at 124 )); United States v.
Tighe, 551 F.2d 18, 21 (3d Cir. 1977) (noting that "by placing a prescription for
a controlled substance, issued outside of the usual course of medical practice, in
the hands of an ultimate user a physician completes" a criminal act); United
States v. Brandenburg, 155 F.2d 110, 111 (3d Cir. 1946) (finding that "under the
guise of 'treating' a patient a physician may not by issuing prescriptions make it
possible for drugs to be peddled or for known addicts merely to satisfy their
craving" (citing United States v. Behrman, 258 U.S. 280, 287 (1922))).
Accordingly, we reject Campione's argument that he cannot be guilty of
distribution of CDS because he was a licensed physician assistant, who was
registered to prescribe CDS to patients. This, however, does not end our inquiry.
Although Campione was permitted to prescribe CDS, he may only do so
in good faith when the CDS is medically necessary and appropriate. Vaccaro,
142 N.J. Super. at 173. CDS prescriptions issued to substance abusing patients
who do not have a legitimate medical need for such medication subjects the
physician assistant to potential criminal prosecution and conviction.
Determination of the medical necessity and appropriateness of the prescription
A-1709-18T2
44
is a fact question to be considered by the grand and petit jurors. An indicted
charge should not be dismissed if there is "some evidence" that the CDS
prescription was not issued in good faith because it was medically unnecessary
or inappropriate.
In addition to his own testimony, Brockriede presented the statements of
eighteen patients, K.M., P.S., P.J., M.M., A.L., N.H., B.H., J.M., S.Q., A.M.,
B.S., J.B., E.U., M.H., P.A., D.H., D.D., and C.M., to the grand jury. The State
also presented text messages between Campione and his wife and other
circumstantial evidence. Notably, the State did not present any expert witnesses
or expert reports addressing the lack of medical necessity of the CDS
prescriptions to the grand jury. To be sure, many of the patients ' statements
described underlying medical conditions causing them to suffer from chronic
pain. In several instances, Campione prescribed medications that had been
previously prescribed to them by former physicians.
The bulk of the statements presented to the grand jury focused on the
location of the examinations, payment for services in cash, the cursory nature of
the examinations, the amount Campione charged, and whether the patient was
housebound or otherwise prevented from traveling to a medical office. We do
not view such facts as evidence that the prescriptions were not medically
necessary and, therefore, constituted illegal distribution of CDS within the
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45
meaning of N.J.S.A. 2C:35-5. Many of the patients were seen by Campione in
their homes, nearby locations, or in his personal vehicle. House calls are an
appropriate "medical care setting" within the meaning of N.J.S.A. 45:9-27.15(a).
Similarly, examining patients and prescribing them medication at nearby
locations would not provide a basis for criminal prosecution as opposed to
potential disciplinary action by the Board. And, as noted by amicus curiae
Attorney General of New Jersey, "the statute does not expressly prohibit a
personal vehicle from being a 'medical care setting.'" It depends on the
circumstances.
Viewing the evidence presented to the grand jury as true and affording the
State all reasonable inferences, we conclude there was "some evidence" that the
CDS prescriptions issued by Campione to K.M., M.M., B.H. and A.M. were
neither medically necessary nor issued in good faith. Consequently, the motion
court erred by dismissing counts five, six, nine, thirteen, fourteen, seventeen,
and eighteen.
In so ruling, we are not commenting here on what evidence would be
admissible at trial regarding the manner and locations of the examinations and
treatment performed by Campione in his vehicle, at restaurants, or locations
other than his office or the patient's residence.
A-1709-18T2
46
On the other hand, our careful review of the grand jury testimony and
exhibits leads us to conclude insufficient evidence was presented to the grand
jury to make out a prima facie case as to counts seven, eight, ten, eleven, twelve,
fifteen, sixteen, and nineteen through twenty-nine. Accordingly, the motion
court properly dismissed those counts. 11
By way of example, count seven charged Campione with distribution of
CDS to P.S., yet during his statement to investigators, which was read to the
grand jury, P.S. stated he provided Campione with his MRI report. He stated he
had spinal stenosis and had difficulty walking. He saw Campione for pain
management to address severe pain in his arms and legs. P.S. noted that
Campione refused to prescribe him Percocet because it was inappropriate for
chronic pain. He understood that Campione was a physician assistant, not a
medical doctor.
11
In so ruling, we note that the motion judge did not state that the pre -trial
dismissal was with prejudice. A pre-trial dismissal does not implicate double
jeopardy concerns unless it is "based on a finding of fact relating to the merits
of the prosecution," rather than that the evidence presented to the grand jury was
insufficient to support an indictment. Pressler & Verniero, Current N.J. Court
Rules, cmt. 3 on R. 2:3-1 (2020). We therefore consider the motion court's
dismissal of counts five through twenty-nine to be without prejudice. Our
affirmance of the dismissal of any of those counts is likewise without prejudice.
The State may seek to re-indict Campione on the dismissed counts by presenting
additional evidence to a grand jury, subject to the legal holdings we make here.
We express no opinion as to likelihood of success of any such future attempt to
re-indict.
A-1709-18T2
47
Count twenty-six charged Campione with distribution of CDS to P.A.
During her statement to investigators, which was read to the grand jury, P.A.
stated she had been injured in a serious motor vehicle accident and suffered a
fractured leg, anoxia resulting in a lengthy coma, seizures, and a cognitive brain
injury. This led to Campione treating her for bed sores. Campione saw P.A. at
her residence, had blood work done, checked her vitals, inspected her bed sores,
and referred her for physical therapy. In addition to pain medication and Xanax,
Campione prescribed sleeping pills, diabetes medication, diuretics, and special
shoes for her diabetes. He also ordered additional testing to be performed by
nurses.
Count twenty-seven charged Campione with distribution of CDS to D.H.
During his statement to investigators, which was read to the grand jury, D.H.
stated he was referred to Campione by a pain management physician. He
described his medical condition as three herniated discs, a bulging disc, and
sciatica. He was treated at his residence. Campione examined and urine tested
him each month to make sure he was not selling his medication. In addition to
pain medications, Campione prescribed Adderall for ADHD. He noted that his
previous psychiatrist had also prescribed Adderall for that condition. When he
sought an increase in Oxycodone dosage, Campione refused because he would
not over prescribe.
A-1709-18T2
48
IV.
Count thirty charges Campione with third-degree possession of hollow
point bullets, a prohibited weapon. Count thirty-one charges Campione with
fourth-degree possession of metal knuckles, a prohibited weapon. The motion
judge dismissed both counts because the State did not present evidence of the
hollow point bullets or metal knuckles to the first grand jury, even though it was
aware of that evidence. Thus, Campione was not indicted by the first grand jury
on those charges. The State presented evidence of the possession of those illegal
weapons to the second grand jury, which true billed both counts.
Following State v. Gregory, 66 N.J. 510 (1975), the motion judge applied
Rule 3:15-1(b) to implement mandatory joinder. The Court has interpreted the
Rule to encompass four factors a defendant must show to gain dismissal of an
indictment on this basis: "(1) the multiple offenses are criminal; (2) the offenses
are based on the same conduct or arose from the same episode; (3) the
appropriate prosecuting officer knew of the offenses at the time the first trial
commenced; and (4) the offenses were within the jurisdiction and venue of a
single court." State v. Yoskowitz, 116 N.J. 679, 701 (1989) (emphasis added);
R. 3:15-1(b). Further, the mandatory joinder rule is codified at N.J.S.A. 2C:1-
8(b), which provides in relevant part:
[A] defendant shall not be subject to separate trials for
multiple criminal offenses based on the same conduct
A-1709-18T2
49
or arising from the same episode, if such offenses are
known to the appropriate prosecuting officer at the time
of the commencement of the first trial and are within
the jurisdiction and venue of a single court.
[(Emphasis added).]
The judge misapplied the mandatory joinder rule. Here, Campione was
not subjected to separate trials. "No disposition on the merits ha[d] taken place."
State v. Phillips, 150 N.J. Super. 75, 77 (App. Div. 1977). Other than count one
as to Campione, the charges presented to the second grand jury were different
than those presented to the first grand jury. Moreover, the second indictment
superseded the first. Here, presenting the superseding indictment to the grand
jury did not implicate the double jeopardy clause or the mandatory joinder rule.
"The mandatory joinder rule deals with offenses, not indictments." State v.
Antieri, 180 N.J. Super. 267, 272 (Law Div. 1981), aff'd, 186 N.J. Super. 20
(App. Div. 1982). The State may re-present charges to the grand jury multiple
times until it secures an indictment. See State v. Shaw, 455 N.J. Super. 471,
489 (App. Div. 2018) (holding the trial court did not err in refusing to dismiss
the indictment returned by a third grand jury where the State presented new and
material evidence to the third panel). For these reasons, we reverse the dismissal
of counts thirty and thirty-one.
Campione also contends the State failed to recite the entire statute
pertaining to metal knuckles when it presented count thirty-one to the grand
A-1709-18T2
50
jury. He asserts that he had a "lawful purpose" for possessing the metal knuckles
because he was a "weapons collector" and the State did not present this lawful
defense to the grand jury. We find no merit in this argument. R. 2:11-3(e)(2).
V.
We next address the post-dismissal discovery ordered by the motion court.
The State argues the court abused its discretion by ordering post-dismissal
discovery of the identity, opinions, and reports of the experts that it consulted.
We agree.
Rule 3:13-3(b)(1)(I) requires the State to provide the following post-
indictment discovery:
[The] names and addresses of each person whom the
prosecutor expects to call to trial as an expert witness,
the expert's qualifications, the subject matter on which
the expert is expected to testify, a copy of the report, if
any, of such expert witness, or if no report is prepared,
a statement of the facts and opinions to which the expert
is expected to testify and a summary of the grounds for
each opinion.
As a result of the dismissal of the indictment in its entirety, the criminal
action was no longer pending and no trial will occur unless the dismissal is
overturned on appeal. Rule 3:13-3(b)(1)(I) does not apply when all charges have
been dismissed. Moreover, Campione can renew his application for discovery
on remand as to any reinstated counts.
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51
Rule 3:13-3(b)(1)(I) is "parallel" to the civil standard regarding expert
testimony. State v. LaBrutto, 114 N.J. 187, 205 (1989); Pressler & Verniero,
cmt. 3.2.9 on R. 3:13-3(b)(1). The motion court misapplied the civil standard
for discovery of expert witnesses.
It is the clear intention of [Rule 4:10-2(d)(1)] that
it generally apply only to experts who will be testifying
at trial, leaving parties free to consult with other experts
whose opinion is not discoverable. See Graham v.
Gielchinsky, 126 N.J. 361 (1991). A party's
consultation with an expert whose identity and opinion
is not disclosed to the adversary is privileged,
precluding the adversary from himself producing that
expert in the absence of exceptional circumstances
within the meaning of [Rule 4:10-2(d)(3)].
[Pressler & Verniero, cmt. 5.2.1 on R. 4:10-2(d)(1).]
Further, in the civil context, "a consulting expert is prohibited from
testifying for an adversary at trial absent the same 'exceptional circumstances'
that would have allowed discovery of that expert's identity and opinion under
Rule 4:10-2(d)(3)." Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 301 (2006)
(citing Graham, 126 N.J. at 373).
The fact that the State's civil forfeiture action was then still pending when
the indictment was dismissed does not change the analysis. 12 The owners of
12
During oral argument before this court, counsel advised that the civil
forfeiture action is now settled. Consequently, the issue of discovery that might
have been necessary in the forfeiture proceeding is now moot.
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52
property sought to be forfeited may seek discovery in the forfeiture action. See
State v. 1987 Chevrolet Camaro, 307 N.J. Super. 34, 43-46 (App. Div. 1998)
(noting the right to discovery in forfeiture actions and applying discovery
enforcement rules).
We likewise conclude that the pendency of license suspension
proceedings brought against Campione by the Board, and his related temporary
suspension, which will not be fully resolved until the criminal charges are
resolved, does not provide a legal basis for ordering the State to provide post-
dismissal expert discovery. Campione may seek permitted discovery in the
administrative proceeding if those proceedings are reactivated as a result of our
decision reinstating certain counts of the indictment. N.J.A.C. 1:1-10.1 to -10.6.
Recent precedent, such as In re Cayuse Corp. LLC, 445 N.J. Super. 80
(App. Div. 2016), does not compel a contrary result. The facts in Cayuse, which
involved a challenge to the denial of a retail firearms dealer's license application,
are materially distinguishable. Cayuse faced potential adverse consequences on
future license applications as a result of the application denial being challenged.
Id. at 97. Here, the dismissal of the indictment terminated the criminal case.
VI.
In sum, we affirm the dismissal with prejudice of counts one, two and
four. We affirm the dismissal without prejudice of counts seven, eight, ten,
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53
eleven, twelve, fifteen, sixteen, and nineteen through twenty-nine. We affirm
the dismissal with prejudice of all charges against Katz. We reverse the
dismissal of counts three (as to Campione), five, six, nine, thirteen, fourteen,
seventeen, eighteen, thirty, and thirty-one and remand those counts for further
proceedings. We also reverse the orders compelling post-dismissal discovery.
Affirmed in part, reversed in part, and remanded for further proceedings.
We do not retain jurisdiction.
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54
TABLE – INDICTMENT NO. 18-05-0685
Count: Contrary to Charging: Patient: Appellate
N.J.S.A.: Disposition:
One (1): 2C:5-2, 2C:2- Campione & N/A Dismissed
third-degree 6, and 2C:21- Katz
conspiracy 20(a), (c), (d)
Two (2): 2C:21-20(a) Campione & N/A Dismissed
third-degree Katz
unlawful
practice of
medicine
Three (3): 2C:21-20(c) Campione & N/A Reinstated as
third-degree Katz to Campione/
unlawful dismissed as
practice of to Katz
medicine
Four (4): 2C:21-20(d) Campione & N/A Dismissed
third-degree Katz
unlawful
practice of
medicine
Five (5): 2C:35-5(b)(5) Campione K.M. Reinstated
third-degree
distribution
of CDS
Six (6): third- 2C:35- Campione K.M. Reinstated
degree 5(b)(13)
distribution
of CDS
Seven (7): 2C:35-5(b)(5) Campione P.S. Dismissed
third-degree
distribution
of CDS
Eight (8): 2C:35-5(b)(5) Campione P.J. Dismissed
third-degree
distribution
of CDS
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55
Nine (9): 2C:35- Campione M.M. Reinstated
third-degree 5(b)(13)
distribution
of CDS
Ten (10): 2C:35-5(b)(5) Campione A.L. Dismissed
third-degree
distribution
of CDS
Eleven (11): 2C:35- Campione A.L. Dismissed
third-degree 5(b)(13)
distribution
of CDS
Twelve (12): 2C:35-5(b)(5) Campione N.H. Dismissed
third-degree
distribution
of CDS
Thirteen (13): 2C:35-5(b)(5) Campione B.H. Reinstated
third-degree
distribution
of CDS
Fourteen 2C:35- Campione B.H. Reinstated
(14): third- 5(b)(13)
degree
distribution
of CDS
Fifteen (15): 2C:35- Campione J.M. Dismissed
third-degree 5(b)(13)
distribution
of CDS
Sixteen (16): 2C:35-5(b)(5) Campione S.Q. Dismissed
third-degree
distribution
of CDS
Seventeen 2C:35-5(b)(5) Campione A.M. Reinstated
(17): third-
degree
distribution
of CDS
Eighteen 2C:35- Campione A.M. Reinstated
(18): third- 5(b)(13)
A-1709-18T2
56
degree
distribution
of CDS
Nineteen 2C:35- Campione B.S. Dismissed
(19): third- 5(b)(13)
degree
distribution
of CDS
Twenty (20): 2C:35-5(b)(5) Campione J.B. Dismissed
third-degree
distribution
of CDS
Twenty-One 2C:35- Campione J.B. Dismissed
(21): third- 5(b)(13)
degree
distribution
of CDS
Twenty-Two 2C:35-5(b)(5) Campione E.U. Dismissed
(22): third-
degree
distribution
of CDS
Twenty- 2C:35- Campione E.U. Dismissed
Three (23): 5(b)(13)
third-degree
distribution
of CDS
Twenty-Four 2C:35-5(b)(5) Campione M.H. Dismissed
(24): third-
degree
distribution
of CDS
Twenty-Five 2C:35- Campione M.H. Dismissed
(25): third- 5(b)(13)
degree
distribution
of CDS
Twenty-Six 2C:35- Campione P.A. Dismissed
(26): third- 5(b)(13)
degree
A-1709-18T2
57
distribution
of CDS
Twenty- 2C:35-5(b)(5) Campione D.H. Dismissed
Seven (27):
third-degree
distribution
of CDS
Twenty-Eight 2C:35- Campione D.D. Dismissed
(28): fourth- 5(b)(14)
degree
distribution
of CDS
Twenty-Nine 2C:35-5(b)(5) Campione C.M. Dismissed
(29): third-
degree
distribution
of CDS
Thirty (30): 2C:39-3(f) Campione N/A Reinstated
fourth-degree
possession of
a prohibited
weapon
(hollow point
bullets)
Thirty-One 2C:39-3(e) Campione N/A Reinstated
(31): fourth-
degree
possession of
a prohibited
weapon
(metal
knuckles)
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