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UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
UNITED STATES OF AMERICA, ))
Plaintiff, ))
vs. ) Case No. 12-30035)
VERNON KLINEFELTER, and )GERALDINE KLINEFELTER, )
)Defendants. )
GOVERNMENTS MOTIONS IN LIMINE
The United States of America, by its attorneys, James A. Lewis, United States
Attorney for the Central District of Illinois, and Timothy A. Bass, Assistant United
States Attorney, respectfully submits its motion in limine. The government states the
following:
INTRODUCTION
On March 7, 2012, the defendants were indicted in this matter and charged with
one count of engaging in a scheme to defraud the Social Security Administration (SSA),
in violation of 18 U.S.C. 1343, one count of concealment/failure to disclose
information, in violation of 42 U.S.C. 408(a)(4), and one count of making a false
statement to the SSA, in violation of 42 U.S.C. 408(a)(2), all in connection with
Defendant Vernon Klinefelters March 2004 application for more than $100,000 in social
security disability benefits that were received between 2005 and 2008. As charged in the
indictment, each of these offenses focuses on the defendants conduct and whether they
made false statements and/or failed to disclose material information concerning the
application for disability benefits, in which the defendants represented to the SSA,
E-FIWednesday, 06 November, 2013 04:46:0
Clerk, U.S. District Court
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among other things, that Defendant Vernon Klinefelter, a medical doctor, was disabled
and unable to work, did not supervise others, including Defendant Geraldine
Klinefelter, a nurse practitioner, and did not receive a level of income that would have
disqualified him from receiving such benefits.
The defendants have given notice to the government that they intend to call
Springfield Attorney Don Hanrahan, who represented the defendants before the SSA
concerning the very disability claim that is the subject of the offenses charged and
communicated with the government concerning the criminal investigation, to offer
expert opinions regarding the social security administration claims evaluation
process and determination. In addition, the defendants have also advised the
government that they intend to elicit evidence concerning the death of their 18 year-old
son, Paul, in November 2004 from a drug overdose, more than six months after the
defendants initially submitted the disability application. Finally, a part of the
governments evidence in this case involves confidential medical and personal
information, including billing information, of the defendants patients.
In this motion, the government respectfully requests that the Court:
(A) exclude the testimony of Attorney Hanrahan as plainly irrelevant underFed.R.Evid. 402, likely to cause unfair prejudice and confusion of the
issues under Fed.R.Evid. 403, and improper and unhelpful testimony from
an attorney for the defendant and non-expert witness concerning the
mental state of the defendants relating to an element of the offenses
charged under Fed.R.Evid. 702 and 704;
(B) exclude any evidence relating to the death of the defendants son, Paul, asirrelevant under Fed.R.Evid. 402 and likely to cause unfair prejudice and
confusion of the issues under Fed.R.Evid. 403,
(C) admit summary testimony concerning the defendants patient recordsunder Fed.R.Evid. 1006 and Fed.R.Evid. 611, in lieu of admitting the actual
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patient records into evidence, to protect the confidentiality of medical and
personal information of the defendants patients.
FACTUAL SUMMARY
At trial, the government will present evidence to establish the following:
The federal Social Security Act and related laws establish a number of programs
which have the basic objective of providing for the needs of individuals and their
families. These programs include the Disability Insurance Benefits Program, which is
administered by the SSA. The purpose of the Disability Insurance Benefits Program is to
replace part of the earnings lost because of an actual physical or mental impairment, as
defined by federal law. Persons seeking disability benefits must file an application with
the SSA under penalty of perjury. In sum, to be eligible for disability benefits, a person
must be 1) totally (not partially) disabled and expected to be so disabled for a period of
at least 12 months; and 2) unable to engage in substantial gainful activity (i.e. unable to
work), which includes not earning a certain level of income established by SSA each
year. Monthly benefits are paid to eligible disabled persons and to eligible beneficiaries,
including children under the age of 18, throughout the period of disability. In
determining an applicants eligibility for disability insurance benefits, the SSA relies on
information provided by the applicants themselves or persons acting on the applicants
behalf concerning, among other things, their medical condition, their level and extent of
work activity, and their income.
Defendant Vernon Klinefelter was a licensed physician and surgeon in the State
of Illinois. He was married to Defendant Geraldine Klinefelter. Defendant Geraldine
Klinefelter was a registered nurse and an advanced practice nurse (nurse practitioner).
Both defendants together operated Abundant Life Medical Clinic (Abundant Life) in
Taylorville, Illinois. Under Illinois law, in order for an advanced practice nurse (such as
Defendant Geraldine Klinefelter) to provide services in a clinical practice (and hence
submit bills to patients and insurers), she was required to have a written collaborative
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agreement with and be supervised by a physician or podiatrist, which authorizes
categories of care, treatment or procedures to be performed by the advanced practice
nurse. See 225 ILCS 65/65-35 (b). Collaboration under this law means the
relationship under which an advanced practice nurse works with a collaborating
physicianin an active clinical practice to deliver health care services. Id. In
addition, the services to be provided by the advanced practice nurse shall be services
that the collaborating physicianis authorized to and generally provides to his or her
patients in the normal course of his or her clinical medical practice. Id. The
collaborative agreement under which Defendant Geraldine Klinefelter practiced was
with her husband, Defendant Vernon Klinefelter. This agreement was used for
everything from obtaining hospital access to malpractice insurance for Defendant
Geraldine Klinefelter, and, most importantly, allowing her to practice in the Abundant
Life Medical Clinic.
In addition to owning and operating Abundant Life, Defendant Vernon
Klinefelter was also the President/Medical Advisor of the Christian County
Department of Public Health and was on staff as an independent contractor at St.
Vincent Memorial Hospital in Taylorville (now known as Taylorville Memorial
Hospital). As such, he attended staff meetings and was allowed to admit and discharge
patients, use the hospital facilities, and bill his patients for the use of the hospital
facilities. As part of being on staff as an independent contractor with and granted
clinical privileges by St. Vincent Memorial Hospital, Defendant Vernon Klinefelter was
required to complete a re-credentialing form, which, among other things, required him
to describe his profession, the nature of his medical practice, and his current medical
condition.
Beginning in approximately March 2004 and continuing to approximately
January 2008, in the Central District of Illinois, and elsewhere, the defendants
knowingly devised and participated in a scheme to defraud the SSA and to obtain its
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money and property by means of false and fraudulent pretenses, representations,
promises, and material omissions.
As part of the scheme, on or about March 31, 2004, April 4, 2004, and April 28,
2004, the defendants falsely represented to the SSA as part of an application for
disability insurance benefits that Defendant Vernon Klinefelter was unable to work
because of [his] disabling condition on December 31, 2002. In support of such false
statement and in describing his medical condition, the defendants represented, among
other things, that Defendant Vernon Klinefelter suffered from many disabilities,
including a seizure disorder, that, among other things, caused major problems with
[his] memory and prevented him from "resolv[ing] simple mathmatics [sic].
As a further part of the scheme, the defendants falsely represented to the SSA
that Defendant Vernon Klinefelter stopped working on December 31, 2002, could not
take care of [his] patients any longer, and he did not supervise other people in his
work. The defendants further falsely represented to the SSA that Defendant Vernon
Klinefelter was no longer able to make rational decisions, could no longer take care of
his patients, had not been actively engaged in the business since December 31, 2002,
when he turned over all his duties to his spouse, and makes no decisions and earns no
income from the business.
As a further part of the scheme and in response to a request from the SSA for
further information concerning Defendant Vernon Klinefelters application for
disability insurance benefits, on or about December 27, 2004, the defendants falsely
represented to the SSA that, among other things, Defendant Vernon Klinefelter was
not able to work hardly at all for five months after 10 day hospitalization in Feb. 2003,
he [w]orked one to two afternoons per week when able, seeing one to three carefully
selected patients, he worked two afternoons per week and saw two or three patients
on average when he was able to work, and he did not make any management
decisions following his illness or injury.
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The government will present evidence to establish that at least one or more of
these statements and actions, however, made solely for the purpose of obtaining
disability benefits, were false and fraudulent. Defendant Vernon Klinefelter was able to
work and was: actively working as a medical doctor; operating his medical clinic,
Abundant Life; supervising Defendant Geraldine Klinefelter, a nurse practitioner, as
required by law; serving on staff and admitting, treating, and discharging patients at St.
Vincent Memorial Hospital in Taylorville, including representing to the hospital on two
occasions in July 2003 and April 2005 as part of the re-credentialing process that his
medical condition should not present problems with practice as condition is controlled
with medication, was good or controlled. The defendant also supervised the
billing of Defendant Geraldine Klinefelter for federal Medicare and Medicaid and
private insurance reimbursements; and earned income substantially above the annual
maximum SSA thresholds for the years 2003 to 2008.
As a result of the scheme, the defendants caused the SSA to provide disability
insurance payments for the period June 2003 to January 2008 to Defendant Vernon
Klinefelter and his son, Paul, totaling $107,700. The defendants son Paul, age 18, died of
a drug overdose in November 2004, more than six months after the defendants filed the
disability application with SSA in March 2004.
In 2007, the SSA initiated a criminal investigation of the defendants concerning
the application for disability benefits. SSA later disallowed all of the disability benefits
paid to the defendants and determined that Defendant Vernon Klinefelter was
ineligible for such benefits. The defendants appealed SSAs denial of benefits.
In 2008, as reflected in the attached Exhibit 1 to this motion, Springfield Attorney
Don Hanrahan represented the defendants before the SSA concerning the denial of their
disability claim. In addition, as part of the criminal investigation, Attorney Hanrahan,
with the defendants prior criminal defense counsel, communicated with the
government and advocated on their behalf against the filing of criminal charges.
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Attorney Hanrahans communication with the government, and the nature of the
testimony from him the defendants intend to present at trial, are set forth in the
attached Exhibit 2 to this motion.
ARGUMENT
Exclusion of Expert Testimony
The defendants are charged in the indictment with one count of engaging in a
scheme to defraud the SSA, in violation of 18 U.S.C. 1343, one count of
concealment/failure to disclose information, in violation of 42 U.S.C. 408(a)(4), and
one count of making a false statement to the SSA, in violation of 42 U.S.C. 408(a)(2), all
in connection with application for disability benefits filed in March 2004 with the SSA.
As charged in the indictment, each of these offenses focuses on the defendants conduct
and whether they made false statements and/or failed to disclose material information
concerning the application for disability benefits to SSA. As to each offense, the
government is required to prove either a knowingly false statement or a knowing
failure to disclose material information. See Pattern Criminal Jury Instruction of the
Seventh Circuit, 18 U.S.C. 1343, 42 U.S.C. 408(a)(4), 42 U.S.C. 408(a)(2).
The defendants have given notice to the government that they intend to call
Springfield Attorney Don Hanrahan to provide expert opinions regarding the SSA
claims evaluation process and determination. As reflected in the attached Exhibit 1 to
this motion, Attorney Hanrahan represented the defendants since at least January 2008
in their dealings with SSA concerning the denial of the very disability claim that is the
subject of the offenses charged. This representation began afterthe defendants became
aware that their conduct and statements in pursuing disability benefits from SSA was
being investigated by the Office of Inspector General and the U.S. Attorneys Office. As
part of this, Attorney Hanrahan accompanied by the defendants prior criminal defense
attorneys, communicated with the government concerning the criminal investigation
and potential charges now alleged in the indictment, during which Attorney Hanrahan
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advocated on behalf of the defendants that criminal charges not be pursued. The
summary of the anticipated testimony from Attorney Hanrahan is attached to this
motion as Exhibit 2 and is the very communication Attorney Hanrahan previously
presented to the government during the criminal investigation. Specifically, Attorney
Hanrahan, as an attorney for the defendants, is not presenting evidence or expert
opinions but rather is advocating on behalf of his clients as to whether they committed a
criminal offense. Such argument, from one of the defendants attorneys, is not at all
admissible expert evidence or testimony under Rules 702 and 704 of the Federal Rules
of Evidence and is plainly inadmissible.
Rule 702 of the Federal Rules of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise
if:
(a) the expert's scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts
of the case.
Rule 704(b) of the Federal Rules of Evidence provides,
In a criminal case, an expert witness must not state an opinion about
whether the defendant did or did not have a mental state or condition that
constitutes an element of the crime charged or of a defense. Those matters
are for the trier of fact alone.
When confronted with potential expert testimony, this Court must perform a
gatekeeper: function, and only admit such testimony if (1) it is based on sufficient facts
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or data; (2) it is the product of reliable principles and methods; and (3) the witness has
applied the principles and methods reliably to the facts of the case. Simply stated, the
testimony must be statistically valid (reliable) and relevant. See, e.g., United States v.
Allen,390 F.3d 944, 949 (7thCir. 2004); United States v. Lamarre, 248 F.3d 642, 647 (7thCir.
2001). In this case, the proposed testimony is neither.
As is evident from the exhibit, the substance of Mr. Hanrahans testimony is
essentially a rebuttal to the governments fact witnesses, and intended is to suggest that
Mr. Hanrahan is more aware of the policies and procedures of the SSA than those
individuals who actually workfor the government agency. 1The information provided
by the defendants in their application for benefits, as well as the representations made
by the defendants to the individuals who work for SSA is the relevant evidence as to
whether the statements were made by the defendants or not. It is up to the government
to prove the falsity of the statements. The defendant will have ample opportunity to
cross examine the witnesses to whom the statements were made regarding the
circumstance surrounding the statements, and inquire whether they followed SSA
policies correctly. An attorney, or any other advocate, should not be allowed to give
their opinion, disguised as evidence, as to whether the defendants actually made the
statements or not.
A prime example of the problems that would accompany such proposed
testimony is illustrated by the applications for benefits submitted by the defendants.
During the application process, defendant Geraldine Klinefelter represented to SSA
claims representative Karen Randazzo that Vernon Klinefelter was totally disabled and
unable to work, and had been in that condition since December 31, 2002. This
1Contrary to the defendants suggestion that the government will present the procedure
for processing disability claims from Rodney Haymon (a Special Agent for the SSAInspector General), the evidence will actually come from the employees of SSA thatreceived and processed the applications submitted by the defendants.
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information was entered into the system by the SSA claims representative, who is
prepared to testify that the entries were made contemporaneous with their
conversation. The information was then printed on a form (actually two forms, both of
which will be offered as exhibits) and the printed forms were sent to the Klinefelters for
review and verification. Defendant Vernon R. Klinefelter attested to correctness of the
information contained on those forms and submitted them to SSA.
The defendants intention is for Mr. Hanrahan to testify that the operative date of
December 31, 2002 was actually a date chosen by the SSA rather than a product of the
conversation between the representative and the Klinefelters, and that the language on
the form was not provided by either defendant, but was boilerplate language chosen
by SSA. No matter the depth of experience Mr. Hanrahan has with representing clients
in Social Security matters, unless he was present during the conversation and can testify
to events he witnessed and experienced, his testimony in representing other clients
before this agency has absolutely no value to a jury, and can only lead to confusion.
While the defendants should be free to examine the witnesses who took the
information, processed the applications and made decisions based on the facts before
them, they should not be able to present speculation as evidence from a witness who
can at best testify from limited and one-sided experience.
As second example, the defendant suggests that Mr. Hanrahan will testify that
the defendants made full disclosure to the SSA regarding the scope of work then being
performed by defendant Vernon Klinefelter. Again, this testimony would seek to
contradict the evidence to be presented by the actual SSA employees who received and
processed information that the defendants represented that Vernon Klinefelter was
completely unable to work. Hanrahans testimony would not tell the jury what was
disclosed, but, much as an advocate, would attempt to persuade the jury about the
impact these words should have had on SSA employees. Once again, these are subjects
on which the defendants may choose to cross examine SSA employees. They are
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certainly subjects that the defendants are free to argue within the confines of the rules
regarding opening statements and closing arguments. The rules of evidence, however,
do not allow a defendant to call his own attorney to the witness stand to present his
argument as evidence that a jury should consider.
In most cases dealing with expert testimony, a court must consider whether the
testimony has been subjected to the scientific method; it must rule out subjective belief
and unsupported speculation. This step requires inquiry into whether the reasoning
and methodology underlying the testimony is scientifically valid. Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993). The Supreme Court has identified
several factors useful to evaluate the reliability of the methodology: (1) whether the
theory or technique can be or had been tested; (2) whether the theory or technique has
been subjected to peer review and publication; (3) the known and potential rate for
error; and (4) the general acceptance of the theory. See Bradley v. Brown, 42 F.3d 434,
437 (7thCir. 1994). In this case, the testimony to be offered is not something that can be
scientifically tested, but consists only of an attorneys experience representing clients
before an agency of the government. It cannot be checked or verified, it is entirely
subjective with the attorney.
A court must also determine whether the expert testimony or evidence will assist
the trier of fact in understanding the evidence or a fact in issue. This step requires the
court to consider whether the proposed testimony fits the issue to which the expert is
testifying. United States v. Hall (Hall II),165 F.3d 1095, 1102 (7thCir. 1999), citing Daubert
at 591-93. Here, because the witnesses that actually participated in the event will be
present, testifying and subject to cross examination, the testimony of an attorney to
disagree with their actions, methods or conclusions would certainly not assist the trier
of fact. Either the defendants made certain representations to the SSA employees, or
they did not. This is a question for the jury to determine. Either the representations
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were false, as alleged, or they were not. Once again, this is an issue for the jury to
determine, and an attorneys opinion is not relevant to that determination.
Finally, expert testimony as to legal conclusions that will determine the outcome
of the case is inadmissible. Good Shepherd Manor Found., Inc. v. City of Momence, 323 F.3d
557, 564 (7th Cir.2003). In the Good Shepherd case, the district court did not allow the
testimony of an expert witness (a law professor and who works in urban planning), and
did not allow the testimony to the experts conclusions that citys actions violated a
law and other purely legal matters that could determine the outcome of the case. See
alsoUnited States v. Sinclair,74 F.3d 753, 757 n. 1 (7th Cir.1996); United States v. Caputo,
382 F.Supp.2d 1045, 1049 (N.D.Ill.2005) (An expert witness cannot offer an opinion on
what the law requires or permits because the judge, not the witnesses, instructs the jury
about the relevant law.). See also Thomas v. Sheahan, 514 F. Supp. 2d 1083, 1094 (N.D.
Ill. 2007)(expert's testimony to the ultimate legal conclusion in this casethat
Defendants were deliberately indifferent, or that County had a longstanding practice,
custom, or policy of condoning various alleged violations of inmates' rights held
inadmissible). Here, the defendants seek to offer testimony that the defendants words
and actions do not meet the legal standards of false or concealment. These
conclusions are, of course, matters that only the jury can decide.
Exclusion of Testimony Concerning the Death of the Defendants Son
The defendants have also advised the government that they intend to elicit
evidence concerning the death of their 18 year-old son, Paul, in November 2004 from a
drug overdose, more than six months after the defendants initially submitted the
disability application. Again, Rule 402 bars evidence that is irrelevant and Rule 403 bars
evidence if its probative value is substantially outweighed by the danger of unfair
prejudice, confusing the issues, or misleading the jury. In addition, all criminal juries
are instructed that they should not be influenced by prejudice or sympathy. See Pattern
Criminal Jury Instruction of the Seventh Circuit 1.01.
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Here, the tragic death of the defendants son, which occurred more than six
months following their application for disability benefits, is plainly irrelevant to
whether the defendants committed the offenses charged. Moreover, that tragic event
will inevitably lead to sympathy for both defendants as parents and to confusing and
misleading the jury. Such evidence should therefore be excluded. United States v.
Adames, 56 F.3d 737, 746 (7thCir. 1995) (Scenes depicting Jones children opening
Christmas gifts would be emotionally charged and may have induced the jury to feel
sympathy for Jones or his children, emotional reactions that should not factor into the
jury's decision.
Admission of Summary Testimony
Part of the governments evidence showing that Defendant Vernon Klinefelter
was working while claiming that he was totally disabled will come from insurance
companies, as well as Medicare and Medicaid billing. These records will show that
during the relevant time period, thousands of individual claims were filed for services
provided to patients by Defendant Vernon Klinefelter, a medical doctor, by Defendant
Geraldine Klinefelter, a Nurse Practitioner, and by Abundant Life, which is registered
to both defendants under their collaborative agreement. Since Defendant Geraldine
Klinefelter could not practice medicine without the supervision and collaboration of
Defendant Vernon Klinefelter, the government intends to produce the claim records of
voluminous claims for services provided under the billing identifiers for both Vernon
Ray Klinefelter and Geraldine Klinefelter, as well as a billing identifier assigned to
Abundant Life. Realistically, the government cannot call all former patients to testify in
the trial or seriously attempt to analyze all of the patient files. Since the billing data is
kept by the insurance companies in electronic databases, the government intends to
introduce this data, which is downloaded onto portable storage devices (such as CD-
ROM or DVD), all of which has been provided to the defense, in order to present to the
jury the volume of claims for each billing entity. It is therefore anticipated that
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representatives from Blue Cross and Blue Shield of Illinois, Medicare (Diana Barany
from Cahaba Safeguard Administrators and Nathan Kennedy from National
Government Services) and from the Illinois Department of Health and Family Services,
which administers the Medicaid program in Illinois, will testify as summary witnesses
regarding the data, as well as to the spreadsheets summarizing the electronic data
showing the claims submitted for services for the time period during which the
defendants claimed Defendant Vernon Klinefelter was disabled.
Protection of Private Health Information
Finally, the government intends to present evidence from various patient files
and billing data that may contain personally identifying information, as well as health
treatment records. For example, the government intends to call representatives of
Taylorville Memorial Hospital as witnesses to provide evidence that both defendants
treated patients admitted during the time period from 2003-2007. All of this
information has been presented to the defense in discovery. The logistics of a criminal
trial, however, make de-identifying page from every file and record in a case like this
virtually impossible. To alleviate this problem, the government requests that it be
permitted to present summary testimony from hospital officials concerning the patients
personal records, without actually introducing the records into evidence, and through
the use of leading questions so as to protect the identity and privacy of the patients
information.
Rule 1006 of the Federal Rules of Evidence provides that a party may use a
summary or chart to prove the content of voluminous writings. Fed.R.Evid. 1006. The
original or duplicates of such records must be made available for examination or
copying to the other party. Id.; see United States v. Isaacs, 593 F.3d 517, 527 (7thCir. 2010).
In addition, Rule 611 allows the court reasonable control over the mode of interrogating
a witness so as to (1) make the interrogation and presentation effective for the
ascertainment of the truth; (2) avoid wasting time; and (3) protect witnesses from
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undue embarrassment. Fed.R.Evid. 611; see United States v. OBrien, 119 F.3d 523, 531 (7th
Cir. 1997).
In this case, to efficiently present evidence of the content of voluminous records
and to protect the confidentiality of patient medical, personal, and billing information,
the government requests that the Court allow the government to present testimony, in
part through leading questions, of witnesses summarizing voluminous records, all of
which have been provided to the defense, without admitting such records into
evidence.
Respectfully submitted,
JAMES A. LEWISUNITED STATES ATTORNEY
BY: s/Timothy A. BassTIMOTHY A. BASS, Bar No. MO 45344Assistant United States Attorney318 S. Sixth StreetSpringfield, Illinois 62701
Phone: 217/492-4450Fax: 217/[email protected]
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CERTIFICATE OF SERVICE
I hereby certify that on the 6thday November 2013, I electronically filed theforegoing with the Clerk of Court using the CM/ECF system which will sendnotification of such filing to the following to:
Counsel of record
s/Timothy A. BassTIMOTHY A. BASS, Bar No. MO 45344Assistant United States Attorney318 S. Sixth StreetSpringfield, Illinois 62701
Phone: 217/492-4450Fax: 217/[email protected]
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