United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
REBECCA GRADY JENNINGS, DISTRICT JUDGE
United States brings this action against Defendants Jeffrey
Campbell, Mark Dyer, Dawn Antle, Jacqueline Davis, and
Physicians Primary Care, PLLC (“PPC”) alleging
twenty-four counts related to a conspiracy to distribute, and
the actual distribution of, controlled substances. [DE 1; DE
55; DE 66]. Davis now moves to sever the charges against her
and for a separate trial on those charges. [DE 81]. Briefing
is complete, and the motion is ripe. [See DE 82; DE 83]. For
the reasons below, the Court DENIES Davis's motion.
of the Second Superseding Indictment charges Campbell, Dyer,
Antle, and PPC with conspiracy to distribute controlled
substances from January 1, 2009 to December 1, 2016. [DE 66
at 194-95]. Counts 2-5 charge Campbell and Dyer with
substantive distribution counts in 2014, which, in part,
furthered the Count 1 conspiracy. [Id. at 195].
Counts 6-7 charge Campbell and Dyer with an overdose death
related to the distribution of controlled substances in Count
1. [Id. at 196]. Counts 8-9 charge Dyer with
unlawful distribution of hydrocodone in 2014, which, in part,
furthered the Count 1 conspiracy. [Id. at 197].
10 charges Campbell, Dyer, Antle, Davis, and PPC with
conspiracy to commit health care fraud during the same period
as Count 1. [Id. at 197-98]. Counts 11-21 charge
Campbell with substantive health care fraud related to
fraudulent coding. [Id. at 198-99]. Count 22 charges
Campbell, Dyer, and Antle with substantive health care fraud
related to fraudulent billing for physical therapy.
[Id. at 199-200]. Counts 11-22, in part, furthered
the conspiracy charged in Count 10. Count 23 charges Campbell
and PPC with substantive health care fraud for falsely
billing genetic lab testing at PPC from August 2013 to June
2014. [Id. at 200].
Count 24 charges Campbell, Dyer, and Davis with a money
laundering conspiracy in which Campbell and PPC allegedly
“established a bonus program to promote the billing of
medical procedures and tests that were medically unnecessary
for the purpose of bolstering revenues in the form of
increased reimbursements received from private insurance,
Medicare, and Medicaid.” [Id. at 201].
Campbell allegedly paid the bonuses “based on a point
value system that directly corresponded to the No. of
patients treated and medical procedures and tests ordered and
billed, including those that were medically unnecessary. The
bonus payments were made from funds derived from . . . [the]
conspiracy to commit health care fraud.”
United States thus alleges that Davis participated in two
conspiracies-conspiracy to commit health care fraud (Count
10) and conspiracy to commit money laundering (Count 24).
Davis moves to sever the charges against her and for a
separate trial under Federal Rule of Criminal Procedure 14.
[DE 81]. The United States filed a timely response [DE 82],
and Davis filed a timely reply [DE 83].
Rules of Criminal Procedure 8 and 14 govern the joinder and
severance of defendants in an indictment, respectively. Rule
8 provides that an “indictment or information may
charge 2 or more defendants if they are alleged to have
participated in the same act or transaction, or in the same
series of acts or transactions, constituting an offense or
offenses. The defendants may be charged in one or more counts
together or separately. All defendants need not be charged in
each count.” Fed. R. Crim. P. 8(b). Rule 14 provides
that if the proper joinder of defendants under Rule 8
“appears to prejudice a defendant . . . the court may
order separate trials of counts . . . or provide any other
relief that justice requires.” Fed. R. Crim. P. 14(a);
see also United States v. Cody, 498 F.3d 582, 587
(6th Cir. 2007).
does not argue that joinder was improper under Rule 8(b).
Rather, she argues only that she would be prejudiced by being
tried with the other Defendants. [DE 83 at 330 n.1].
“[W]hen defendants properly have been joined under Rule
8(b), a district court should grant a severance under Rule 14
only if there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants,
or prevent the jury from making a reliable judgment about
guilt or innocence.” Zafiro v. United States,
506 U.S. 534, 539 (1993). But it is “well settled that
defendants are not entitled to severance merely because they
may have a better chance of acquittal in separate
trials.” Id. at 540. “Even where the
risk of prejudice is high, ‘less drastic measures, such
as limiting instructions, often will suffice to cure any risk
of prejudice.'” United States v. Ross, 703
F.3d 856, 884 (6th Cir. 2012) (quoting Zafiro, 506
U.S. at 534).
defendant is prejudiced “if the jury would be unable to
keep the evidence from each offense separate and unable to
render a fair and impartial verdict on each offense.”
United States v. Rox, 692 F.2d 453, 454 (6th Cir.
1982). Thus, “[a] request for severance should be
denied if a jury can properly compartmentalize the evidence
as it relates to the appropriate defendants.”
United States v. Driver, 535 F.3d 424, 427 (6th Cir.
2008) (citation and internal quotation marks omitted). But
“absent a showing of substantial prejudice, spillover
of evidence from one [count] to another does not require
severance.” United States v. Hang Le-Thy Tran,
433 F.3d 472, 478 (6th Cir. 2006) (citing United States
v. Johnson, 763 F.2d 773, 777 (6th Cir. 1985)). The
defendant bears the burden of proving prejudice. United
States v. Smith, 138 Fed.Appx. 775, 781 (6th Cir. 2005)
(citing United States v. Bowker, 372 F.3d 365, 385
(6th Cir. 2004), vacated on other grounds by 543 U.S. 1182
seeks to show prejudice by asserting that because
“[m]uch of the case involves the illegal distribution
of methadone, oxycodone, and hydrocodone, leading to patient
injury and death” and “[j]urors surely are aware
of the nation's and Commonwealth's widely-publicized
opioid crisis, and of physicians' complicity in its scope
. . . [a]ny evidence of Davis'[s] association with this
drug ring on unrelated events will color the jury's
perception of what Davis did, and will keep them from fairly
assessing the evidence against Davis.” [DE 81 at
Davis is an unindicted co-conspirator on the underlying
substantive crimes, the conspiracy charges do not pertain to
“unrelated events.” Count 10 charges all
Defendants, including Davis, with conspiracy to commit health
care fraud by “falsely and fraudulently bill[ing]
various health care benefit programs by coding physical
therapy, counseling, and exercise (Med Fit Program) services
using evaluation and management codes in order to obtain a
higher rate of reimbursement and billed for medically
unnecessary tests, such as nerve conduction studies, MRIs, CT
Scans, X-rays, Urinary Drug Screens (UDSs), and ANSAR
tests.” [DE 66 at 197-98]. The substantive health care
fraud charged in Counts 11-22-for fraudulent coding and
billing- furthered the Count 10 conspiracy, which covers the
same period as Count 1's charge of conspiracy to
distribute controlled substances. [DE 82 at 320]. Similarly,
the bonus payments described in Count 24 were allegedly paid
from funds obtained as part of the conspiracy to commit
health care fraud in Count 1 and the related fraudulent
coding and billing Counts. The conspiracies charged in Counts
10 and 24 are thus directly related to the substantive Counts
and are part of the overall alleged scheme to distribute
controlled substances, commit fraud, and launder that
fraud's proceeds. See United States v. Cotton,
No. 3:15-CR-00058-TBR, 2016 WL 6662715, at *3 (W.D. Ky. Nov.
10, 2016) (citing United States v. Chapple, No.
09-20224, 2010 WL 940016, at *1 (E.D. Mich. Mar. 12, 2010)
(“If severance was not warranted in Chapple, where the
defendant allegedly participated in only one conspiracy, it
is difficult to see how severance is necessary here, where
[the defendant] allegedly participated in both [interrelated
so, Davis has not shown that prejudice is likely.
“[T]he jury must be presumed capable of sorting out the
evidence and considering the case of each defendant
separately.” United States v. Warner, 690 F.2d
545, 553 (6th Cir. 1982) (citations omitted). Davis's
concerns about the jury's inability to
“compartmentalize the evidence that applies to
Davis” because of the opioid crisis are purely
speculative. [DE 81 at 315]. Mere speculation of prejudice is
insufficient to sever defendants or claims. United States
v. Najjar,300 F.3d 466, 473 (4th Cir. 2002); United
States v. Scivola,766 F.2d 37, 42 (1st Cir. 1985); see
also Hutchison v. Bell,303 F.3d 720, 731 (6th Cir.
2002); United States v. Vance, No.
3:16-CR-00070-JHM, 2017 WL 2720317, at *2 (W.D. Ky. June 22,
2017). Further, even if there were a risk of prejudice, Davis
fails to show that a limiting instruction would not cure that
risk. See United States v. Kennedy, 743 Fed.Appx.
649, 655 (6th Cir. 2018), cert. denied, 139 S.Ct. 1278 (2019)
(an instruction that “[i]t is your duty to separately
consider the evidence that relates to each charge, and to
return a separate verdict for each ...