United States v. Ferris, Case No. CR-18-159-D

CourtUnited States District Courts. 10th Circuit. Western District of Oklahoma
Writing for the CourtTIMOTHY D. DeGIUSTI Chief United States District Judge
PartiesUNITED STATES OF AMERICA, Plaintiff, v. DR. JAMES M. FERRIS, M.D., and KATHERINE DOSSEY, Defendants.
Docket NumberCase No. CR-18-159-D
Decision Date20 August 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DR. JAMES M. FERRIS, M.D., and KATHERINE DOSSEY, Defendants.

Case No. CR-18-159-D

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

August 20, 2019


ORDER

Before the Court is Defendant Katherine Dossey's Motion to Strike Surplusage; Alternative Motion in Limine [Doc. No. 51], filed pursuant to FED. R. CRIM. P. 7(d). Defendant James Ferris adopted the motion [Doc. Nos. 71, 75]. The United States has responded [Doc. Nos. 70, 76]. The matter is fully briefed and at issue.

BACKGROUND

Katherine Dossey, a licensed pharmacist, and Dr. Ferris, a licensed physician, ("Defendants") are charged in a 103-count Indictment with distributing controlled substances outside the usual course of professional medical practice, in violation of 21 U.S.C. § 841(a)(1), and Medicare fraud, in violation of 18 U.S.C. § 1347. [Doc. No. 1]. Defendants argue that the Introduction to the Indictment [Doc. No. 1 at ¶¶ 1-9] is surplusage and should be stricken because it defines the law of the case. "Even if accurate," Defendants assert that these paragraphs are prejudicial, confusing, and invade the province of the Court by defining the law and the province of the jury by predetermining facts. In the alternative, Defendants ask the Court to provide only a summary of the Indictment to

Page 2

the jury without the legal definitions and citations. The United States asserts that paragraphs one through nine are clearly relevant to the charges at issue and are not inflammatory or prejudicial.

STANDARD OF DECISION

Pursuant to FED. R. CIV. P. 7(d), a district court has the discretionary authority, upon a defendant's motion, to "strike surplusage from the indictment or information." Surplusage is generally defined as language in an indictment which "goes beyond alleging the elements of the offense." United States v. Harper, 579 F.2d 1235, 1239 (10th Cir. 1978). A court is not, however, required to strike all surplusage, as the decision to do so is discretionary. "Acting in its discretion, a district court may strike as surplusage allegations not relevant to the charge at issue and inflammatory and prejudicial to the defendant." United States v. Collins, 920 F.2d 619, 631 (10th Cir. 1990) (emphasis added); see also United States v. Brooks, 438 F.3d 1231, 1237 (10th Cir. 2006) (a trial court "may strike from an indictment allegations which are both independent of and unnecessary to the offense on which a conviction ultimately rests.").

In United States v. Gressett, the defendant, who was charged with bank fraud, asked the court to strike as surplusage all references to alleged violations of federal regulations and internal banking policies. Gressett, 773 F. Supp. 270, 274 (D. Kan. 1991). The district court found that such references were relevant to the defendant's intent and motive in structuring the transactions, and denied the motion to strike surplusage. Id; see also United States v. Simpson, Case No. CR-09-249, 2011 WL 2880885, at *17 (N.D. Tex. July 15, 2011) (the defendant's assertion that the introduction of the indictment was surplusage

Page 3

because it made statements about the law that were not elements of the offense did not amount to a showing that the surplusage was irrelevant, inflammatory, and prejudicial); United States v. Salahmand, Case No. CR-08-192, 2009 WL 10680698, at *1-2 (D.D.C. May 12, 2009) (references to medical licensing requirements and to the defendant's alleged failure to obtain licenses to write prescriptions for controlled substances were relevant and non-prejudicial, and thus, would not be stricken as surplusage); United States v. Vogel, Case No. CR-08-224, 2010 WL 2465359, at *3 (E.D. Tex. May 21, 2010) (language in the indictment was relevant to the charges against the defendants because the Controlled Substances Act incorporates state law to define what constitutes legitimate professional medical practice).

DISCUSSION

Defendants seek to strike as surplusage paragraphs one through nine of the Indictment. The first paragraph explains that under the Controlled Substances Act, 21 U.S.C. § 801 et seq., controlled substances are listed according to Schedules. Paragraph two identifies Schedule II controlled substances by name. Paragraph three states that a licensed physician must have a Drug Enforcement Administration number to prescribe controlled substances. Citing to 21 C.F.R. §§ 1306.5(a) and (f), paragraph four describes the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT