US v. Dileo
| Decision Date | 20 July 1994 |
| Docket Number | Crim. No. 94-16. |
| Citation | 859 F. Supp. 940 |
| Parties | UNITED STATES of America, v. Dominic W. DILEO, Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Nelson P. Cohen, Asst. U.S. Atty., Pittsburgh, PA, for U.S.
W. Penn Hackney, Asst. Federal Public Defender, Pittsburgh, PA, for defendant.
Defendant Dominic W. DiLeo is charged with five counts of mail fraud and thirteen counts of distribution of a controlled substance. As to the former, the government alleges that defendant conspired with others to refer patients to Penn Medical Services, Inc. (Penn Medical), a Uniontown firm that rents, leases and sells durable medical equipment. DiLeo would allegedly provide Penn Medical with certificates of medical necessity and falsified medical records, enabling the firm to be paid by the Black Lung Program, a Medicare/Medicaid program established to facilitate the rental or lease of durable medical equipment such as oxygen and respiratory machines. In exchange for the referrals, defendant allegedly solicited and received from Penn Medical cash kickbacks and in kind remuneration, which he used in connection with clandestine, adulterous relationships he was having with unnamed women. With regard to the drug counts, the government alleges that DiLeo unlawfully distributed oxycodone, a Schedule II narcotic drug controlled substance, in the form of Percocet tablets, to various members of Uniontown's England family.
This matter is currently before the Court on defendant's Motion to Adopt Pretrial Motions (Docket No. 34), Motion for Severance (Docket No. 17) and Motion to Continue Trial (Docket No. 44).
Defendant's uncontested motion to adopt pretrial motions prepared and filed by his prior counsel shall be granted.
Defendant contends that the government's indictment misjoins the drug and mail fraud counts, in violation of Fed.R.Crim.P. 8(a). DiLeo argues that no member of the England family had any connection with Penn Medical, and that the prescriptions referred to in counts six through eighteen were not "based on the same act or transaction" as the mail fraud counts, "do not constitute parts of a common scheme or plan" as the alleged scheme involving Penn Medical, and that the two sets of counts do not share the same or similar character. Motion for Severance at ¶ 5.
The government argues in opposition to defendant's motion that the drug and mail fraud charges are sufficiently related as to be part of the same plan. Furthermore, the government contends, the counts share an overlap of evidence, that is, "a commonality of motive underlying the criminal conduct of the defendant, and a central theme of misuse and abuse of the powers and responsibilities attendant to medical doctors." Opposition to Defendant's Motion for Severance at 3. That common motive, according to the United States, was a desire "to assist and promote his extra marital relationships and to hide these affairs from his wife, and to further hide his other and simultaneous affairs from each of his many `girlfriends' and mistresses so that none would know that he was having an affair with anyone else." Id.
Severance under Fed.R.Crim.P. 14 because joinder is unfairly prejudicial is a matter committed to the discretion of the trial court. United States v. Eufrasio, 935 F.2d 553, 568 (3d Cir.), cert. denied sub nom. Idone v. United States, ___ U.S. ___, 112 S.Ct. 340, 116 L.Ed.2d 280 (1991). Where offenses have been improperly joined in the indictment,1 severance is required "as a matter of course without regard to the merits of defendant's claims of prejudice under Rule 14." United States v. Winchester, 407 F.Supp. 261, 264-65 (D.Del.1975). However, the trial court's refusal to sever misjoined offenses is subject to harmless error review, and will be reversed only if the defendant can prove actual prejudice. See United States v. McGill, 964 F.2d 222, 241 (3d Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 664, 121 L.Ed.2d 588 (1992) (citing United States v. Lane, 474 U.S. 438, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986)).
Federal Rule of Criminal Procedure 8(a) provides:
Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
This rule permits joinder of multiple offenses against a single defendant if the offenses charged: (1) are based on the same act or transaction; (2) constitute part of a common scheme or plan; or (3) are of the same or similar character. 1 Charles A. Wright, Federal Practice and Procedure § 143 (1982). The drug and mail fraud charges against DiLe'o are clearly not of the same or similar character.
The dispositive issue is whether the two sets of charges are sufficiently related so as to be either transactionally related or part of a common scheme or plan. The United States Court of Appeals for the Third Circuit has indicated that joining offenses is appropriate where there is a "transactional nexus" between the offenses, and that the relevant inquiry is usually whether "the offenses ... to be joined arise out of a common series of acts or transactions," although "this need not always be the case." U.S. v. Eufrasio, 935 F.2d at 570 n. 20.
Unlike, say, mail fraud and tax evasion or various other offenses involving the making of false representations, see U.S. v. Stout, 499 F.Supp. 602 (E.D.Pa.1980), or drug and firearms offenses, United States v. Gorecki, 813 F.2d 40 (3d Cir.1987), the transactional relationship between mail fraud and distribution of controlled substances is not immediately apparent. The government has not demonstrated any factual or logical connection between defendant's alleged mail fraud and distribution of oxycodone that establishes how these were parts of the same criminal act. For example, although "evidentiary overlap strongly counsels in favor of joinder," U.S. v. Nguyen, 793 F.Supp. 497, 503 n. 10 (D.N.J.1992) (citations omitted), the government has not asserted that any of the evidence it intends to introduce for the purpose of showing that DiLeo wrote medically unnecessary pharmaceutical prescriptions in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) could also be used directly to prove the allegation that he used the mails as part of a scheme to obtain money and property by means of false and fraudulent pretenses in violation of 18 U.S.C. § 1341.
The only basis for joining counts one through five and six through eighteen, then, is a showing that the behavior alleged in the indictment constitutes part of a common scheme or plan. As noted above, the government contends that a common scheme or plan can be derived from "a commonality of motive underlying the criminal conduct of the defendant, and a central theme of misuse and abuse of the powers and responsibilities attendant to medical doctors." Opposition to Defendant's Motion for Severance at 3.
Defining "common scheme or plan" solely in terms of motive would reduce the defendant's conduct to such a level of generality as to preclude any distinctions between the charged offenses. If completely unrelated criminal acts could be joined simply because the defendant was inspired by the desire for money, the duty of courts to inquire whether the offense conduct constituted a "common scheme or plan" would, in most cases, be rendered meaningless. See United States v. Sykes, 7 F.3d 1331, 1337 (7th Cir. 1993) ().2
That is not to say, however, that motive cannot be considered as a factor relevant to the issue of commonality. See United States v. Rabbitt, 583 F.2d 1014 (8th Cir.1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979) (); United States v. Barrett, 505 F.2d 1091 (7th Cir.1975), cert. denied, 421 U.S. 964, 95 S.Ct. 1951, 44 L.Ed.2d 450, and reh'g denied, 422 U.S. 1049, 95 S.Ct. 2667, 45 L.Ed.2d 702 (1975) (). As Rabbitt and Barrett also instruct, a defendant's abuse of his position is another relevant factor in determining whether different offenses are properly joined. See also United States v. Hutchings, 751 F.2d 230, 235 (8th Cir.1984), cert. denied, 474 U.S. 829, 106 S.Ct. 92, 88 L.Ed.2d 75 (1985) (); United States v. Werner, 620 F.2d 922, 927 (2d Cir.1980) () (citing United States v. Henderson, 406 F.Supp. 417, 429 (D.Del.1975)).
The government will attempt to prove its mail fraud case in part with evidence showing that defendant used his position as a medical doctor to order medical testing and prescriptions for medical equipment that were either medically unnecessary or outright fabrications. The government has also put defen...
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