DEFENDANT’S MOTION TO DISMISS INDICTMENT – PAGE 1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

UNITED STATES OF AMERICA §

§

v. § Case No. 4:23-CR-225

§

§

KYLE CARTER §

DEFENDANT’S MOTION TO DISMISS INDICTMENT

TO THE HONORABLE AMOS L. MAZZANT:

Defendant Kyle Carter (“Dr. Carter”) respectfully moves this Court to dismiss the 

Indictment as time-barred by the statute of limitations set forth in 18 U.S.C. § 3282 and the Speedy 

Trial Act.

I. INTRODUCTION

The indictment against Dr. Carter must be dismissed because the government improperly 

sealed the indictment causing violations of the statute of limitations and the Speedy Trial Act. See 

ECF No. 1 (the “Indictment”). Simply put, there was no legitimate prosecutorial basis to seal the 

Indictment, and the sole reason the government sealed the Indictment in October 2023 was to avoid 

waiving the statute of limitations. The statute of limitations expired on November 26, 2023, 

following Dr. Carter’s withdrawal from any alleged conspiracy. On November 26, 2018, 

Dr. Carter mailed a letter directly to Vivature, the company the government alleges he conspired

with, stating that, effective immediately, he was no longer working with Vivature.1 Ex. 1 

(Withdrawal Letter). All of Dr. Carter’s actions after that date were consistent with an unequivocal

1 Dr. Carter denies an alleged conspiracy ever existed, and to the extent any alleged conspiracy did exist, Dr. Carter 

denies his involvement. By presenting the issue of withdrawal in connection this motion to dismiss, Dr. Carter neither 

admits the existence of, nor his participation in, any conspiracy.

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withdrawal, making November 26, 2018 the undisputed date of withdrawal from the conspiracy 

as a matter of law. 

After many years of investigation, detailed infra, the government secured an indictment 

against Dr. Carter on October 11, 2023, just within the five-year statute of limitations. The 

government chose to seal the Indictment at that time, pointing only to the fact that Dr. Carter’s 

arrest may have a “chilling effect” on an ongoing investigation. Yet Dr. Carter had withdrawn 

from any such conspiracy nearly five years prior, and the ongoing investigation into the conspiracy 

in U.S. v. Bass, III et al., Case No. 4:24-CR-00007 (“Bass”), bore no relation to the conduct 

Dr. Carter has been charged with, but with a COVID-19 testing scheme. By the time the 

government unsealed the Indictment and arrested Dr. Carter in January 2024, the statute of 

limitations had expired. It is clear the government had no legitimate basis to seal the Indictment 

and utilized this procedure only to buy itself more time to evade the statute of limitations. The 

Court should therefore dismiss the Indictment against Dr. Carter with prejudice. 

Even setting aside the violation of the statute of limitations, by impermissibly sealing the 

Indictment, the government violated the Speedy Trial Act. Again, the Indictment should be 

dismissed with prejudice as there is no remedy for the government’s impermissible actions.

II. BACKGROUND

On October 11, 2023, the grand jury indicted Dr. Carter on one count of conspiracy to 

commit wire fraud. The Indictment is based on allegedly fraudulent insurance submissions relating 

to private healthcare providers and athletic trainers, with a charged time period of approximately 

April 2014 through 2018. Indictment at ¶¶ 11, 15–23. Dr. Carter’s alleged kickbacks are about 

$50,000. Id. at ¶ 23.

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A. The Government Knew Dr. Carter Affirmatively Withdrew from Any Alleged 

Conspiracy on November 26, 2018, Causing Limitations to Run on November 

26, 2023.

The government first advised Dr. Carter by letter (“Target Letter”) that he was a target of 

a grand jury investigation on September 13, 2021. See Ex. 2. Target Letter. Following the receipt 

of the Target Letter, counsel for Dr. Carter and the government met. Indeed, the government’s 

investigation started in 2019, well before it issued Dr. Carter a target letter. See Indictment ¶ 21. 

During a November 2021 meeting, the government advised Dr. Carter it would soon indict him.

After that meeting, the government did not contact Dr. Carter for over a year. 

On July 19, 2023, the government issued Dr. Carter a second Grand Jury Subpoena. See

Ex. 3 (Grand Jury Subopena). In response, Dr. Carter produced hundreds of documents. See Ex. 4

(Aug. 9, 2023 Letter). Dr. Carter’s production included the November 26, 2018, letter that he 

authored to Vivature CEO Mouzon Bass advising him that Dr. Carter “formally resign[s] from all 

activities associated with Vivature and ask that [Vivature] remove my name from any and all 

activities effective immediately.” See Ex. 1.

Therefore, based on the government’s receipt of Dr. Carter’s letter of resignation from 

Vivature dated November 26, 2018, the government was on notice that Dr. Carter affirmatively 

withdrew from any alleged conspiracy on that date. The government’s own charging instrument 

further supports that it knew Dr. Carter had no involvement with any conspiracy past November 

26, 2018, as there are no allegations that Dr. Carter played any role past 2018. See Indictment ¶¶ 

11, 15–23. 

B. The Government Seals Dr. Carter’s Indictment in October 2023.

On October 11, 2023, the grand jury indicted Dr. Carter. At that time, the government 

decided to seal Dr. Carter’s indictment and withhold his information from the National Crime 

Information Center. Effectively, Dr. Carter was indicted, but no one aside from the government 

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and grand jury knew he was under indictment, in spite of the fact that Dr. Carter knew he was 

under investigation, had his attorneys meet with the government, and had been told to expect an 

indictment as early as January 2022. At this time, the only claimed basis to seal the Indictment 

was an unrelated, ongoing investigation into Dr. Carter’s alleged co-conspirators and the fear that 

Dr. Carter’s “arrest will have a chilling effect on the [Bass] investigation.” See Ex. 5 (Oct. 12, 

2023 FD-1057). 

However, as the government recently admitted, at the time of Indictment, the government 

did not believe that the count Dr. Carter was charged with was sufficiently related to its ongoing 

investigation of alleged co-conspirators to join Dr. Carter in the subsequent indictment returned in 

the Bass case. See Bass, ECF No. 9. That is so because the ongoing investigation into the Bass 

defendants was related to an alleged COVID-19 testing scheme that Dr. Carter had nothing to do 

with. See ECF No. 52. Based on the government’s prior representations to that Dr. Carter would 

be indicted in January 2022, it is clear that the government believed it had sufficient evidence to 

indict him then. However, based on documents Dr. Carter produced to the government pursuant to 

a grand jury subpoena in August 2023, the government knew that Dr. Carter’s statute of limitations 

period was about to run. The Indictment was ultimately unsealed on or about January 22, 2024, 

nearly two months after the statute of limitations had run. The government went on to secure 

millions of documents in post-indictment discovery in January 2024, despite having started its 

investigation in 2019. 

C. The Government Admits It Did Not Determine Dr. Carter’s Indictment Was 

Necessary to the Bass Case until after It Executed a Search Warrant in 

January 2024.

Just over two weeks ago, on July 17, 2024, the government moved to join Dr. Carter’s case 

with Bass. ECF No. 42. The government alleged that it did not determine that it was appropriate 

to join Dr. Carter with the Bass case until post-indictment investigation but failed to point to any 

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specific evidence that would support joinder. Instead, in support of its motion, the government

merely relied on purported trial efficiencies to allow “the jury and the Court [to] understand the 

two different schemes and they would see the consecutive flow from one scheme to the other and 

the commonality of both the actors orchestrating the two schemes.” Ex. 6, July 24, 2024 Mot.

Hearing Tr. at 34:23–35:2. It further stated, “As the investigation has progressed, issues have 

continued to arise that would now shift the calculus in deciding the benefits of having a joint trial

. . . .” Id. at 15:22–16:2. While the government acknowledged that “the way that this was charged 

was a natural progression of the actual investigation,” upon information and belief, it had advised 

at least some of the other defendants in the Bass case of the investigation and of their status as 

targets prior to Dr. Carter’s indictment in fall of 2023.2

Following argument on July 24, 2024, the Court ultimately denied the government’s 

motion for joinder. While the Court held that the government’s motion was not timely, Dr. Carter 

maintains that it was also meritless. The government wholly failed to satisfy Rule 8(b) because the 

allegations in Carter and Bass Counts 2 and 3 had wholly unrelated schemes, co-conspirators, and 

victims, making joinder inappropriate. 

The statements made in connection with joinder eliminate the government’s justification 

for sealing the Indictment in Carter. The government cannot claim that in October 2023 it was 

concerned about a chilling effect on the conspiracy that Dr. Carter allegedly participated in, and 

also that it would not have been appropriate to join Dr. Carter with Bass until post-indictment 

investigation. These statements are in direct opposition and support the conclusion that the 

government sealed the Indictment not for any proper purpose, but only as a way to circumvent the 

2 The Department of Justice’s Justice Manual defines a “target” as “a person as to whom the prosecutor or the grand 

jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the 

prosecutor, is a putative defendant.” U.S. DEP’T OF JUST., JUSTICE MANUAL § 9-11.151. Therefore, the government 

determined that it had sufficient evidence to identify the Bass defendants as defendants in the fall of 2023.

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statute of limitations. Further, the government identified the Bass defendants as targets, which 

further eliminates any “chilling effect” of Dr. Carter’s indictment.

III. ARGUMENT

Pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure, this Court is authorized 

to make a pretrial determination of any defense or objection that the court “can determine without 

a trial on the merits,” including to dismiss an indictment on statute of limitations grounds. FED. R.

CRIM. P. 12(b)(1) advisory committee’s notes to subdivs. (b)(1), (2). Courts have ruled on 12(b) 

motions where the statute of limitations defense is based upon withdrawal from the conspiracy, 

and where the defense is that the statute of limitations was not tolled where the indictment was 

sealed for an improper purpose. See, e.g., United States v. Grimmett, 150 F.3d 958, 961 (8th Cir.

1998); United States v. Boswell, No. 23-30315, 2024 WL 3506194, at *6 (5th Cir. July 23, 2024).

The government is required to seek indictment for an alleged violation of 18 U.S.C. § 1349

within five years. 18 U.S.C. § 3282(a) (“[N]o person shall be prosecuted, tried, or punished for 

any offense, not capital, unless the indictment is found or the information is instituted within five 

years next after such offense shall have been committed.”). “The purpose of a statute of limitations 

is to limit exposure to criminal prosecution to a certain fixed period of time . . . . Such a time limit 

may also have the salutary effect of encouraging law enforcement officials promptly to investigate 

suspected criminal activity.” Toussie v. United States, 397 U.S. 112, 114–15 (1970); see also Smith 

v. United States, 568 U.S. 106, 112 (2013) (a “statute-of-limitations defense does not call the 

criminality of the defendant’s conduct into question, but rather reflects a policy judgment by the 

legislature that the lapse of time may render criminal acts ill-suited for prosecution”). In general, 

“criminal limitations statutes are to be liberally interpreted in favor of repose.” United States v. 

Meador, 138 F.3d 986, 994 (5th Cir. 1998) (internal quotation marks omitted). 

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The Fifth Circuit has held that where an indictment was properly sealed, the statute of 

limitations is tolled from the date of indictment. United States v. Sharpe, 995 F.2d 49, 50 (5th Cir. 

1993) (“[A] properly sealed indictment does indeed toll the statute of limitations . . . .”) (emphasis 

added). But, where there was no proper purpose to seal an indictment, the statute of limitations is 

not tolled. United States v. Boswell, No. 23-30315, 2024 WL 3506194, at *6 (5th Cir. July 23, 

2024). An indictment is properly sealed where it is requested “for any legitimate prosecutorial 

objective or where the public interest otherwise requires it.” United States v. Sharpe, 995 F.2d 49, 

50 (5th Cir. 1993). “[V]arious prosecutorial objectives, including, but not limited to, the facilitation 

of arrest,” will justify the sealing. United States v. Srulowitz, 819 F.2d 37, 40 (2d Cir. 1987)

(internal citation omitted). Further, “even a properly sealed indictment will not toll the statute of 

limitations if the defendant can show substantive and actual prejudice.” Boswell, 2024 WL 

3506194, at *6. 

In the first instance, the sealing of an indictment is “a ministerial act, and it is wholly within 

the discretion of the Magistrate whether to require the prosecutor to justify a request to seal.” 

United States v. Sharpe, 995 F.2d 49, 52 (5th Cir. 1993). The government must, if challenged, 

“explain and support the legitimacy of its reasons for sealing the indictment. The government only 

does so, however, at a hearing after the indictment is unsealed.” Id.

3 While the magistrate judge’s 

initial decision to seal is given deference, such deference has been limited or rejected where the 

magistrate was not provided “an actual explanation from the [g]overnment of its need for sealing.” 

See United States v. Gigante, 436 F. Supp. 2d 647, 660 (S.D.N.Y. 2006).

3 Dr. Carter specifically requests a hearing to determine whether the government had any legitimate prosecutorial 

purpose in sealing the Indictment.

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A. The Government Improperly Sealed the Indictment Resulting in a Violation 

of the Statute of Limitations.

The government improperly requested that the Indictment against Dr. Carter be sealed with 

no legitimate prosecutorial purpose or public interest rationale. As a result of his withdrawal from 

any alleged conspiracy, the statute of limitations for the claims against Dr. Carter was set to run 

on November 26, 2023, and in order to avoid that fact, the government improperly sealed the

Indictment. The statute of limitations was therefore not tolled and had already run by the time the 

government unsealed the Indictment in January 2024. As detailed infra, the Court must therefore 

dismiss the Indictment against Dr. Carter. 

1. Dr. Carter affirmatively withdrew from any alleged conspiracy on 

November 26, 2018.

Here, the government cannot credibly dispute that Dr. Carter withdrew from the conspiracy 

on November 26, 2018, nearly five years before the Indictment issued in October 2023. “A 

defendant is presumed to continue involvement in a conspiracy unless []he makes a ‘substantial 

affirmative showing of withdrawal, abandonment, or defeat of a conspiratorial purpose.’” United 

States v. Schorovsky, 202 F.3d 727, 729 (5th Cir. 2000) (quoting United States v. Puig–Infante, 19 

F.3d 929, 945 (5th Cir. 1994)). The Fifth Circuit has found that withdrawal from a conspiracy 

occurs at the time a defendant “has committed affirmative acts inconsistent with the object of the 

conspiracy that are communicated in a manner reasonably calculated to reach conspirators.” 

United States v. Heard, 709 F.3d 413, 428 (5th Cir. 2013) (quoting United States v. Mann, 161 

F.3d 840, 860 (5th Cir. 1998)). Further, the Fifth Circuit pattern jury instruction defines withdrawal 

as requiring “the defendant to make a substantial showing that he took some affirmative step to 

terminate or abandon his participation in the conspiracy. In other words, the defendant must 

demonstrate some type of affirmative action that disavowed or defeated the purpose of the 

conspiracy.” Fifth Circuit, Pattern Jury Instruction No. 2.18 (2019). 

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The Fifth Circuit requires only that a defendant commit an affirmative act inconsistent with 

the object of the conspiracy, but other circuits have regularly found that withdrawal is established 

where the end of the relationship also results in all ties being severed. See, e.g., United States v. 

Goldberg, 401 F.2d 644, 648–49 (2d Cir. 1968) (finding that the defendant established withdrawal 

where he left his employment outside of the limitations period and there was “an absence of 

evidence of activity after the cutoff date”); United States v. Nerlinger, 862 F.2d 967, 974–75 (2d 

Cir. 1988) (finding that the defendant’s resignation and closing of the account through which the 

fraudulent scheme was perpetrated constituted a withdrawal from the conspiracy); United States 

v. Lowell, 649 F.2d 950, 955 (3d Cir. 1981) (cleaned up) (“[W]here fraud constitutes the standard 

operating procedure of a business enterprise, affirmative action sufficient to show withdrawal as a 

matter of law from the conspiracy embodied in the business association may be demonstrated by 

the retirement of a coconspirator from the business, severance of all ties to the business, and 

consequent deprivation to the remaining conspirator group of the services that constituted the 

retiree’s contribution to the fraud.”); United States v. Antar, 53 F.3d 568, 583 (3d Cir. 1995), 

overruled on other grounds by Smith v. Berg, 247 F.3d 532 (3d Cir. 2001) (finding that, in addition 

to ending the employment relationship, the “total severing of ties with the enterprise,” such that 

the defendant neither “continues to do acts in furtherance of the conspiracy” nor “continues to 

receive benefits from the conspiracy’s operations” thereafter, is sufficient to show withdrawal). 

Dr. Carter’s November 26, 2018 letter to Vivature is a clear withdrawal from any such 

conspiracy. See Ex. 1. The Termination Letter, sent to Vivature CEO Mouzon Bass, states that 

Dr. Carter “formally resign[s] from all activities associated with Vivature” and asks that Vivature 

remain his name “from any and all activities effective immediately.” Id. Further, upon receiving 

this information, Vivature immediately ceased paying Dr. Carter a medical director stipend. See 

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Ex. 7. Indeed, the Indictment does not contain any allegations that Dr. Carter’s alleged 

participation continued after his withdrawal on November 26, 2018. The government has brought 

an indictment against Mr. Bass and others in part in connection with, as the government alleges, 

the same conspiracy but for a longer time frame. The exclusion of Dr. Carter from that indictment 

and count is telling and leads to the conclusion that there is no genuine dispute that Dr. Carter’s 

participation in any alleged conspiracy ended by November 26, 2018.

While the government may attempt to argue that there was a communication with a patient 

after withdrawal from the conspiracy, the evidence shows that Dr. Carter clearly communicated 

that he had resigned from Vivature in November 2018—which is consistent with his affirmative 

withdrawal from the conspiracy. See Ex. 8. At all times, Dr. Carter acted consistent with his intent 

to unequivocally withdraw from any alleged conspiracy.

2. The government violated the statute of limitations because it improperly 

sealed the Indictment.

The Fifth Circuit has held that where an indictment was improperly sealed, the statute of 

limitations is not tolled. United States v. Boswell, No. 23-30315, 2024 WL 3506194, at *6 (5th 

Cir. July 23, 2024); United States v. Sharpe, 995 F.2d 49, 50 (5th Cir. 1993). An indictment is 

properly sealed where it is requested “for any legitimate prosecutorial objective or where the public 

interest otherwise requires it.” United States v. Sharpe, 995 F.2d 49, 50 (5th Cir. 1993). 

In this case, the government has not demonstrated that it had a proper purpose in sealing 

the Indictment. Dr. Carter had known for years by the time of the October 2023 Indictment that he 

was under investigation and had met with the government. See Exs. 2, 4. He had been told on at 

least two occasions to expect an Indictment against him, and he had clearly not been deemed a 

flight risk by the government. The only rationale that Dr. Carter is aware that the government used 

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for its sealing of the Indictment was that Dr. Carter’s “arrest will have a chilling effect on the 

[Bass] investigation.” See Ex. 5. 

But the ongoing investigation had nothing to do with Dr. Carter, but rather had to do with

a separate ongoing COVID-19 scheme. As discussed supra, Dr. Carter had long withdrawn from 

any alleged conspiracy and the facts and scheme potentially at issue in 2023 had nothing to do 

with any allegations against him dating back to 2018. The government admits that it required 

further investigation, after years of ongoing investigation and cooperation by Dr. Carter, to 

determine if there was meaningful relation to the Bass indictment until after January 2024. These 

statements directly contradict the government’s proffered rationale for sealing the Indictment. 

Further, the Indictment indicates that an investigation into the alleged conspiracy that would lead 

to Dr. Carter’s Indictment and Count I of Bass had been ongoing since at least March 2021.

Indictment ¶ 21. Importantly, it is understood that at least some of the Bass defendants were 

advised of the investigation and of their status within the investigation well before their 

indictments.

It is clear that the government did not genuinely believe in October 2023 that Dr. Carter’s 

arrest would have a chilling effect on anyone because it is the one that told at least some of the 

Bass defendants of their status in the investigation. Further, as the conduct alleged in the 

Indictment against Dr. Carter had ended nearly five years prior, there was no public interest present 

to protect. 

The decisions in United States v. Rogers and United States v. Gigante are instructive in this 

case. The court in United States v. Rogers found that there was no legitimate prosecutorial need 

for sealing the indictment and “a unilateral extension by the government of the limitations period 

under the guise of ‘gathering evidence’ would [not] be a ‘legitimate prosecutorial objective’ in 

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view of the length of the delay.” 781 F. Supp. 1181, 1191 (S.D. Miss. 1991) (finding that the 

government was time-barred from prosecuting the offenses charged in the indictment). Just as 

here, the government in Rogers did not demonstrate that the sealing was necessary in order to 

maintain secrecy, nor that the defendant could not be located or was likely to flee. Further, just as 

Dr. Carter knew for years prior to his Indictment about the government’s investigation, the 

“evidence is uncontroverted” that the Rogers defendant was aware of the investigation against him. 

Id. 

In Gigante, the court quickly dismissed the government’s assertions that sealing was 

required for secrecy or flight risk concerns, where the defendant “was well aware for nearly the 

entire duration of the five-year investigation that he was being investigated, and his counsel was 

in frequent contact with the [g]overnment about the investigation.” 436 F. Supp. 2d 647, 657 

(S.D.N.Y. 2006). In fact, the court there found that it could “only reasonably conclude that the 

indictments were sealed only because the [g]overnment sought to toll the statute of limitations 

while pursuing a related investigation.” Id. In holding that the government’s desire for additional 

investigative time is not a legitimate prosecutorial reason to seal the indictment, the court stated 

that “[s]uch reasoning would radically undermine what the Second Circuit has identified as one of 

the primary purposes behind having a statute of limitations at all: encouraging prompt investigation 

of criminal cases.” Id. (cleaned up).

The facts in Sharpe also support a finding that the government lacked a legitimate 

prosecutorial need for sealing the Indictment. In Sharpe, the indictment had been sealed in part in 

order to locate a co-defendant under the same indictment. Again, the government did not seek to 

indict anyone with Dr. Carter and has admitted that it intentionally did not seek to indict Dr. Carter

with the Bass defendants, and required more investigative information, post-indictment of 

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Dr. Carter and the Bass defendants, to determine if such joinder would be appropriate. The risks 

present in Sharpe simply are not at issue with the Indictment. 

By improperly sealing the Indictment, the government allowed the statute of limitations to 

expire. The government’s extreme delay in bringing this action has resulted in significant prejudice 

against Dr. Carter and his ability to defend himself of these charges. See United States v. Meador, 

138 F.3d 986, 994 (5th Cir. 1998) (statutes of limitation “are made for the repose of society and 

the protection of those who may (during the limitation) have lost their means of defense”) (cleaned 

up). As a result, the Court must dismiss the Indictment against him. 

B. The Government Violated Dr. Carter’s Sixth Amendment Right to a Speedy 

Trial by Impermissibly Sealing the Indictment.

The Speedy Trial Act requires that a defendant be tried “within seventy days from the filing 

date (and making public) of the information or indictment, or from the date the defendant has 

appeared before a judicial officer of the court in which such charge is pending, whichever date last 

occurs.” 18 U.S.C. § 3161(c)(1). Further, the Defendant is entitled to have charges dismissed if 

they are not tried within the time allowed for by Section 3161(c). See 18 U.S.C. § 3162(a)(2). 

Seventy days from October 11, 2023 was December 20, 2023, nearly a month before the 

government unsealed the Indictment. Given the government’s lack of proper purpose in sealing 

the Indictment, the date used to calculate compliance with the Speedy Trial Act must be the date 

Indictment was issued. The Indictment should therefore also be dismissed in light of the 

government’s violation of the Speedy Trial Act. 

IV. CONCLUSION

Based on the foregoing reasons, defendant Kyle Carter respectfully requests that the Court 

dismiss the Indictment with prejudice.

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Dated: August 5, 2024 Respectfully submitted,

/s/ Jeff Ansley

Jeffrey J. Ansley 

State Bar No. 00790235

jansley@vedderprice.com

Arianna G. Goodman

State Bar No. 24109938

agoodman@vedderprice.com

Samuel M. Deau

State Bar No. 24135506 

sdeau@vedderprice.com

300 Crescent Court, Suite 400

Dallas, Texas 75201

469.895.4790

CERTIFICATE OF SERVICE

I certify that on this date, a true and correct copy of the foregoing document was forwarded 

to all known counsel of record in this cause via the Court’s CM/ECF system.

/s/ Jeff Ansley

Jeffrey J. Ansley

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