U.S. District Judge Karen Caldwell said Friday that the trial of former Baltimore Raven Robert McCune, former Kansas City Chief Tamarick Vanover and former Washington Football Team player Clinton Portis needs to be delayed after Kentucky hit a one-day record of 2,700 new positives on Nov. 11. The three are among a group charged with making false reimbursement requests to an NFL health care fund.
Much of the rest of the country is also seeing record new cases as a third wave has spread outward from the upper Midwest.
"This continued increase in coronavirus cases presents an unreasonable risk of safety to all trial participants and leaves the court no choice but to postpone," Judge Caldwell said.
A Dec. 7 trial would fall "directly in the midst of two major holidays ... All defendants in this case live outside Kentucky. Four defense lawyers and three assistant United States attorneys live and practice outside Kentucky. Witnesses will be coming from outside Kentucky," the judge said.
And the state's public health commissioner recommended last week that people from different households not commingle for any reason, the judge said.
"It is not in the best interest of jurors, counsel, court staff, or the public to gather for trial" as scheduled, the judge said. "This finding is made with particular emphasis on the safety and health of all trial participants in light of the alarming surge of novel-coronavirus cases in Kentucky and throughout the nation."
The judge offered alternate start dates in late February and early April, and asked the parties to discuss their options.
Lawyers for the three players and the government were not immediately available for comment.
The judge in recent weeks has also indefinitely called off the scheduled sentencings of four other former players who pled guilty — John Eubanks, James Butler, Fred Bennett and Etric Pruitt — due to the COVID-19 spike.
Pruitt pled guilty in January, Butler in May, and Eubanks and Bennett in July, according to court records. Antwan Odom, Darrell Reid and Anthony Montgomery have also pled guilty.
Federal prosecutors accused the players of being part of a $3.9 million health care fraud scheme that sought reimbursement for unneeded items like a $57,000 cryotherapy machine and a $46,000 muscle massager.
The allegedly fraudulent reimbursement claims were made to the Gene Upshaw NFL Player Health Reimbursement Account Plan.
Prosecutors announced charges against 10 former players in December and three more in July.
McCune is represented by Andrew Sparks of Dickinson Wright.
Vanover is represented by Jeffrey Darling of Nichols Walter PLLC.
Portis is represented by Adam Reeves of Stoll Keenon Ogden PLLC.
The government is represented by Alexander Kramer, John Scanlon and Thomas Tynan of the U.S. Department of Justice's Criminal Division, and Andrew Smith of the U.S. Attorney's Office for the Eastern District of Kentucky.
The case is U.S. v. McCune et al., case number 5:19-cr-00206, in the U.S. District Court for the Eastern District of Kentucky.
--Additional reporting by Max Kutner, Reenat Sinay, Mike Curley, Michael Angell and Craig Clough. Editing by Adam LoBelia.
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