Case 2:19-cr-20189-PDB-EAS ECF No. 23, PageID.

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

United States of America, No. 2:19-cr-20189

Plaintiff, Hon. Paul D. Borman

v.

D-1 Donald A. Greene, Sr.

D-2 Donald A. Greene, II,

Defendants.
_______________________________/

MEMORANDUM CONCERNING BRCIL DONOR FAMILY STATUS

The United States files this memorandum pursuant to Court’s request of July

1, 2019.

I. The investigation of BRCIL.

As part of the investigation that led to the instant charges being filed against

Donald A. Greene, Sr. and Donald A. Greene, II, the United States seized human

remains, intended for medical research and training, from the Biological Resource

Center of Illinois (BRCIL), a corporation owned by Donald A Greene, Sr.

Investigation by the FBI and the United States Attorney’s office revealed the

following germane to the Court’s concerns expressed at the hearing of July 1,

2019.

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A. Donald A. Greene, Sr. conceived of and engaged in a scheme to

defraud medical providers.
Donald A. Greene, Sr. owned and operated a series of businesses that

provided anatomical specimens sourced from human remains to medical providers

for use in training and research. Greene, Sr., in the course of operating these

businesses, devised and engaged in a scheme to defraud his customers, the medical

providers.

Greene, Sr. knew that his customers would only accept human remains

sourced from cadavers that had tested negative for certain infectious diseases.

Promises to only provide remains that had tested negative for these diseases were

contained in Greene, Sr.’s businesses’ contacts. Nonetheless, Greene, Sr.

defrauded his customers by knowing providing them with remains sourced from

cadavers that had either tested positive for the specified diseases or whose blood

was unable to be tested for these diseases.

Co-defendant Donald A. Greene, II, is the son of Donald A. Greene, Sr.

Greene, II was first employed by his father years after Greene, Sr. devised and

began executing the fraudulent scheme against the medical providers. Greene, II

became aware of the scheme after joining the business, and engaged in various

affirmative acts to conceal it.

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B. No evidence was found that Donald A. Greene, Sr.’s businesses

mistreated donated human remains.
Greene, Sr.’s scheme to defraud operated in similar fashion to that of Arthur

Rathburn, who was convicted after a jury trial before this Court in 2018. Like

Arthur Rathburn, Greene, Sr. concealed relevant test results from customers to

whom he provided human remains.

But—in contrast to its investigation of Arthur Rathburn—the government

has uncovered no evidence that Greene, Sr. (or anyone else in his employ)

mistreated cadavers or other human remains. Arthur Rathburn dismembered and

stored human remains in horrific and disrespectful fashion, and he concealed these

conditions from his customers—to whom he promised in contracts that his

business would be conducted in a “clean” environment. (See e.g., United States v.

Arthur Rathburn, 16-20043, R. 124: Trial Tr., 958–968 (Special Agent Leslie

Larsen); Id. R. 149: Government’s Sentencing Memorandum, 1990). This conduct

was so egregious that no medical provider, knowing the truth, would have

willingly accepted remains provided by Rathburn. (See e.g., Id., R. 129: Trial Tr.,

1703–1707 (Ronald Wade)). Neither Greene, Sr. nor Greene, II engaged in any

such conduct, placing them in a markedly different category of offender than

Arthur Rathburn.

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C. The government was unable to find sufficient evidence to charge

either Greene, Sr. or Greene, II with defrauding donor families.
The government, in the course of its investigation, investigated whether

Greene, Sr. or Greene, II defrauded families in order to convince them to donate

the remains of loved ones to BRCIL. Numerous interviews were conducted and

documents were reviewed. At the conclusion of its investigation, the government

did not uncover evidence that would enable it to prove, beyond a reasonable doubt,

that either Greene, Sr. or Greene, II—with respect to conduct targeted towards

donor families—committed a violation of federal law.

Pursuant to the principles of federal prosecution, the government may only

“commence or recommend federal prosecution if [it] believes that the person’s

conduct constitutes a federal offense, and that the admissible evidence will

probably be sufficient to obtain and sustain a conviction.” Justice Manual 9-27-

220, 1997 WL 1944701. This principle is a core tenet of the American justice

system, and it was the basis for the decision not to charge Greene, Sr. or Greene, II

with crimes involving the defrauding of donor families. This decision is not a

finding of fact or a legal judgment. It is not an exoneration. The government is

not expressing an opinion on whether any state crimes may have been committed

or whether any civil cause of action may exist with respect to the Greenes’

dealings with donor families.

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Critically, the government is neither defending the business practices of the

Greenes nor declaring that any statements made by donor family members are

inaccurate. The Government is simply stating that—based on the investigation—it

does not believe that the admissible evidence would be sufficient to prove beyond

a reasonable doubt in a federal criminal proceeding that either Greene, Sr. or

Greene, II defrauded donor families. Consistent with its policies regarding federal

prosecution, the government has been unable to bring charges against the Greenes

relating to donor family members.

II. The legal status of the remains seized from BRCIL.

Because the government cannot establish that the human remains seized

from BRCIL were fraudulently obtained by the Greenes, their legal status is

governed principally by Illinois law. Illinois law states that, upon donation for

scientific purposes, the receiving institution has the superior claim of ownership of

the remains. 755 ILCS 50/5-47(f) (“[T]he rights of the person to which a [donated

body] part passes…are superior to the rights of all other with respect to the part.”). 1

As such, although seized by the United States as criminal evidence, they remain

the property of BRCIL.

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A family member of the donor may, prior to final disposition by the institution to which
the remains were donated, request that the remains be returned. 755 ILCS 50/5-45(a). “Such
request shall be honored by the donee if the terms of the gift are silent on how final disposition is
to take place.” Id. The government intends that, at the disposition of this case, that the remains in
its custody be cremated and provided to donor families.
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Because the remains are evidence in a criminal investigation that has led to

charges but not a conviction, the United States must preserve these remains in the

state in which they were seized until the prosecution is concluded. It has done so.

They remain frozen and carefully—and respectfully—separated by individual

donor.

Prior to the resolution of the criminal case, the evidentiary value of the

remains (and any information that could be obtained through examining them) is

unresolved. Crucially, the United States does not know what defense theories

would be advocated at a potential trial, and it is thus unknown to the United States

what evidentiary purpose defendants might have for the remains or for any test

results that could be obtained from them. While current counsel for the defendants

disclaims any evidentiary interest in the remains, that representation cannot be

dispositive as—prior to a trial—defense counsel could change, current defense

counsel could uncover additional evidence during trial preparation, or additional

charges could potentially be brought. And, at the conclusion of trial (whatever its

result), without any orders from the Court or agreement of the parties, seized

evidence—including these remains—would have to be returned to the defendants.

Sovereign News Co. v. United States, 690 F.2d 569, 577 (6th Cir. 1982) (“The

general rule is that seized property, other than contraband, should be returned to

the rightful owner after the criminal proceedings have terminated.”). (See also

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United States v. Arthur Rathburn, 16-20043, R. 186: Order of Abandonment

(finding that it was necessary, given lack of consent of the defendant, for the Court

to issue an order pursuant to the All Writs Act to permit government to cremate

bodies seized as evidence)).

This evidentiary uncertainty is not theoretical. Prior to his trial and over the

course of successive attorneys, Arthur Rathburn refused to permit the United States

to cremate remains seized from his business. Indeed, even after conviction at trial,

Arthur Rathburn continued to insist upon an ownership interest in the seized

remains. It was only after this Court (at the request of the government) entered an

order of abandonment that the government was able to cremate remains seized

from Rathburn and return them to donor families. (United States v. Arthur

Rathburn, 16-20043, R. 186: Order of Abandonment). Indeed, as Rathburn’s

conviction is not yet final and because of his insistence that certain specified

remains would have evidentiary value at a retrial, to this day certain human

remains—pursuant to order of the Court—remain frozen and in the custody of the

government. Id.

In contrast to the protracted litigation over the remains seized from Arthur

Rathburn, the government has reached agreement with Greene, Sr. and Greene, II

that—should they plead guilty—that remains seized from BRCIL would be

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abandoned to the government so that they could be cremated and provided to

families.

III. The legal status of donor families

The government empathizes with the donor families and recognizes that they

are grieving as a result of their loved ones’ remains being a part of the evidence in

this investigation. Personnel from both the FBI and the United States Attorney’s

office have responded to numerous calls from donor families. The government has

been sensitive to their concerns, answered their questions, and kept their desire for

return of their loves ones’ remains in mind as it has attempted to reach a resolution

of the charges against the Greenes.

Because charges in the indictment do not include allegations that the donor

families were defrauded, however, they do not qualify as victims pursuant to either

the Victims’ Rights and Restitution Act (VRRA) or the Crime Victims’ Rights Act

(CVRA). Under the CVRA, crime victims are defined as any “person directly and

proximately harmed as a result” of a federal crime. 18 U.S.C. § 3771(e)(2)(A).

Similarly, under the VRRA, a victim is defined as any person “that has suffered

direct physical, emotional, or pecuniary harm as the result of the commission of a

crime.” 34 U.S.C. § 20141(e)(2).

Individuals who are not directly and proximately harmed by charged

criminal conduct do not qualify as victims under either the VRRA or the CVRA.

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See, e.g., United States v. Freeman, 741 F.3d 426, 435 (4th Cir. 2014) (“the alleged

victims must be victims of the offense of conviction.”) (emphasis in original); In re

McNulty, 597 F.3d 344, 350 (6th Cir. 2010); United States v. Newsome, 322 F.3d

328, 341 (4th Cir.2003) (“[T]he focus of the court in applying the MVRA [the

Mandatory Victim Restitution Act, which deals with a subset of VRRA victims]

must be on the losses to the victim caused by the offense.”); United States v.

Thuna, 2019 WL 2296474 at *4 (D.P.R. 2019) (“Because Lilly's alleged harm is

not ‘directly’ caused by any element of Thuna's offense, Lilly is not a victim of

Thuna's crime pursuant to the [VRRA] or the CVRA”); United States v. Credit

Suisse AG, 2014 WL 5026739 at *4 (E.D. Va. 2014) (“The harm to the victim must

have been caused by the specific conduct that is the basis of the defendant's offense

of conviction.”) (citations and internal quotations omitted).

Given the definitions, therefore, it is the medical providers who paid for the

use of human remains that are the statutory victims of the Greene, Sr.’s fraudulent

scheme, not the donor families. The charged scheme involved lying to the

providers about disease testing. It was these providers who parted with their

money on the basis of false representations and these providers who were

potentially exposed to infection. No direct or proximate harm came to the donor

families as a result of conduct charged by the Information. This is in direct

contrast to the case of Arthur Rathburn. Rathburn was charged with—and

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convicted of—a scheme that involved the mistreatment of human remains. See

supra. Rathburn’s egregious disregard for human dignity harmed not only the

medical providers who were his customers, but also the families who donated

loved ones that ended up in his warehouse. This fact pattern is not present here.

To be clear, this is a matter of narrow, but binding, statutory definitions. It

is not a factual finding or a value judgment. The government is aware that

numerous families feel wronged by the behavior of Greene, Sr. and Greene, II.

The government’s required findings under federal statutes do not represent any

repudiation of these families or their statements.

Despite the fact that the donor families do not qualify for victim status under

either the VRRA or the CVRA, the government has not abandoned them and will

not abandon them. Both the United States Attorney’s Office and the FBI will

continue to take phone calls, respond to letters, and update families on the status of

the case. And it remains a priority of the government to, upon conclusion of this

matter, to cremate remains seized from BRCIL and provide them to donor families

who seek their return.

IV. Restitution

Following the precedent of the Rathburn case, no restitution would be

applicable in this matter. After Arthur Rathburn was found guilty, the government

initially advocated for restitution, and—at the direction of the Court—all

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institutions who received potentially tainted remains from Arthur Rathburn were

notified and invited to request restitution. (United States v. Arthur Rathburn, 16-

20043, R. 192: Hearing Tr., 3569-70). Only one provided a preliminary response,

and that institution failed to send a representative to court to request restitution.

(Id., R. 191: Hearing Tr. 3562-63). This confirmed the preliminary observation of

the Court that no restitution was likely to be ordered because—although the

institutions were defrauded by Rathburn’s misrepresentations—they nonetheless

were able to profit by conducting their medical training with the tainted remains

that he provided. (Id., R. 192: Hearing Tr. 3570).

The government’s position during plea negotiations with the Greenes was

informed by the resolution in the Rathburn matter. No restitution was sought for

the medical providers who were defrauded by Greene, Sr.’s fraudulent scheme

because no monetary losses by medical providers was identified. With respect to

the possibility of restitution made to donor families, no legal basis exists for

monetary compensation because they are not statutory victims of the fraudulent

scheme and because they suffered no monetary losses. U.S. v. Innarelli, 524 F.3d

286, 292-294 (1st Cir. 2008) (restitution must be based on actual losses caused by

a criminal act, cannot provide a windfall, and cannot be based on pain and

suffering); United States v. Newsome, 322 F.3d 328, 341 (4th Cir.2003) (only

individuals who suffered monetary harm as a result of charged conduct are eligible

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for restitution); United States v. Husky, 924 F.2d 223 (11th Cir. 1991) (MVRA

does not permit restitution for pain and suffering.).

The government recognizes, however, that the primary desire of many of the

donor families is the return of the remains of their loved ones. The government

continues, therefore, to seek abandonment as part of any plea deal with the

Greeens—therefore permitting cremation of the remains seized by the government

from BRCIL.

Respectfully submitted,
MATTHEW SCHNEIDER
United States Attorney

/s/ TIMOTHY J. WYSE

/s/ JOHN K. NEAL
Assistant U.S. Attorneys
(313) 226-9100
211 West Fort, Suite 2001
Detroit, Michigan 48226

July 17, 2019

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