The one certainty in the sequence of events that took place in 1995 at the Center for Reproductive Health at the University of California, Irvine (UCI) is nobody actually knows what happened. My research on the scandal shows only one constant. That is; the media, clinic employees, university officials, investigators, and prosecutors were so invested in their positions they failed to seek the truth. When I began researching the case, along with Gilbert Geis, our goal was not to solve or adjudicate the events, but to gain perspectives from the involved parties without bias. Whether or not we were able to accomplish this goal is debatable. I offer the trite but true caveat: There’s truth in all sides of a story.

This case involved strong emotions, which made it difficult to sort out fact from fiction. One major insight I gained, looking back 18 years later, is the realization that obtaining justice (past, present, or future) for all those harmed is unfeasible. Also, though not a popular stance, I understand that Doctors Sergio Stone and Ricardo Asch were subjected to abysmal treatment by the American criminal justice system. Since my initial research, I came to know Stone and Asch, not only as figures in a white-collar crime scandal, but as men who stood little chance of winning against overzealous prosecutors. Stone’s trial was the best example of the weaknesses of the charges against the doctors. Not only was he acquitted on most of the charges, one might argue the conviction related to the insurance billing fraud was absurd. Physicians practicing at large hospital are hard pressed to have any information on costs of treatment or percentages paid by insurance companies.

In recent years, I have corresponded and visited Dr. Asch for a variety of reasons. First, was my intellectual curiosity about his reflections on what occurred at the clinic and his perspectives on the ordeals he endured after moving to Mexico City. Second, after meeting him for the first time in 2002, was my initial impression that, despite the accusations, he is a man who was unfairly vilified.

The story of Dr. Asch is complex and his narrative adds a voice seldom heard in the articles and books written on the events at UCI. Few doctors have faced the degrading experience of being imprisoned in two foreign countries, and facing extradition to the United States while continually being harassed by the federal government.

After the failed attempts at extradition, Gil Geis and I penned an editorial, which we believe outlined the futility and devious nature of U.S. prosecutors’ attempts to bring Asch back to trial. We were not surprised by the Orange County Register and Los Angeles Times rejection of this piece. I’m certain Gil, who died last year, would be pleased to see it posted on this website. The article, Crossing the Line: A Case Study of International Extradition, presents a more academic look at the failed extradition efforts.

Mary Dodge, Ph.D. July 22, 2013

Mary Dodge and Gilbert Geis

Twice now, American criminal justice authorities have failed in their effort to extradite Dr. Ricardo Asch from foreign countries, first from Argentina in 2004, and then from Mexico in 2011. Had Asch been returned to the United States he would have faced criminal charges resulting from his position at a fertility clinic at the University of California, Irvine (UCI) medical hospital, an enterprise that was owned and administratively operated by the school. There he allegedly had, without the consent of clinic patients, implanted some of their eggs in other women, again without telling these women where the eggs had been obtained. He also was accused of financial improprieties related to insurance billing. Ironically, real evidence related to the egg and embryo misuse has failed to emerge and Asch faces no criminal charges related to the allegations. The accusation of mail fraud for insurance billing is nonsensical. The procedures billed to the companies are used by clinicians to help defray the costs of treatment for infertile patients. The insurance billing for assistant physicians is a common practice in the United States and doctors are rarely, if ever, are prosecuted. In this case, it appears that the expansive nature of the mail fraud statute allows for easy maneuvering for prosecutors who have little evidence of serious wrongdoing.

The University paid out $27 million in settlements to 140 clinic patients. In the book we co-authored—Stealing Dreams: A Fertility Clinic Scandal—we wondered whether the failure to go to trial to challenge the patients’ claims was a consequence of the University officials’ reluctance to have their oversight tactics and their initial alleged cover-up of what they knew and when they knew it the subject of an open court proceeding. Or they might well have determined that the effect on jury judgments of the emotional anguish of many of the complainants—not to mention the expense of litigating—would have exceeded the millions already paid out. A spokesperson for UCI, asked whether it would seek restitution from Asch, if he were extradited from Argentina, said cryptically that they hadn’t yet determined that. The settlements occurred despite Asch’s repeated requests to work with UCI to determine the merits of each case.

Prosecutors, given the huge degree of discretion they possess, try to avoid actions in which they do not expect to prevail. The twin losses of the extradition cases can be explained in any number of ways. It could be that the evidence that was offered to support the request was unpersuasive; if so, this might reflect poor judgment or perhaps a degree of incompetence. Such a harsh judgment might rely in part on the odd comment made to the press by the U.S. Attorney handling the case when he interpreted a communication on Asch’s Facebook as indicating that he had been released after posting bail. The attorney declared that this would not jeopardize the extradition case unless Asch fled the country. The truth was that the extradition request had been denied and Asch, cleared of all charges, was free to go where he pleased when he pleased.

The incompetence, which perhaps also indicates the futility of pursuing the charges, by the U.S. Attorney’s office began early in the case. The first indictment and arrest warrant was issued in June 1997, almost two years after the doctor had moved to Mexico City. The whereabouts of Asch were widely known, though representatives of the judicial system claimed to have no information on the “fugitive” while patients, reporters, colleagues, and researchers easily gained access for treatment and interviews, and no efforts were made by authorities to seek extradition. At the time when Asch left the United States-- for good reason--no indictment had been filed and the so-called “fugitive” labeling was applied incorrectly.

Asch had been born in Buenos Aires, and in the Argentina case, the United States was bucking a tradition that countries are reluctant to extradite their own citizens especially when the charge does not involve a crime of violence. In September 2008, the Argentinean court denied the extradition and eventually another judicial decision based on a treaty between both countries exonerated Asch of all the charges. Legal experts argue that the push for extradition violates the double jeopardy or non bis in idem of the International Covenant on Civil and Political Rights.

In 2010, Asch was arrested and jailed in Mexico City while the judge awaited the formal petition for extradition before even considering bail. The formal extradition papers were filed on the 59th day of a 60 day deadline. The delay appeared to be an intentional effort to further denigrate the doctor. Even more convoluted was the lack of a valid arrest warrant dating back to 1998 which required an application to the Mexican government. In the filing U.S. Attorney Douglas McCormick wrote: “I know of no explanation for this action [the unexecuted warrant]” and blamed the mistake on a clerical error. In fact, the question of whether or not the arrest warrant was valid during the trial in Argentina raises many legal and ethical questions.

Potential confusion over what actually occurred at the clinic was noted by the Argentinian federal judge who concluded in his decision the alleged scheme is explained by the U.S. Attorney in a “confusing manner.” Ultimately, the decision noted the statute of limitations had lapsed and, more importantly, the lack of proof that a crime had occurred. The decision, according to a treaty between the two countries, sets out an implicit diplomatic obligation that the United States abide by court rulings. In 2011, the Mexican government also denied extradition after considering Argentina’s ruling and cited as reasons double jeopardy and statute of limitations. Dr. Asch’s attorneys in California note in their motion to dismiss the indictment, that the legal ideal “nemo debet bis vexari pro eadem causa” (no one should be twice harassed for the same cause) is a principle of fairness that should be applied in this case, which is now more than 15 years old and resolved by the federal courts in Argentina.