US v. Jackson

CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
Citation850 F. Supp. 1481
Docket NumberNo. 94-40001-01-SAC,94-40001-02-SAC.,94-40001-01-SAC
PartiesUNITED STATES of America, Plaintiff, v. Mark M. JACKSON, and Robert Martinez, Jr., Defendants.
Decision Date30 March 1994









Thomas J. Bath, Jr., James L. Eisenbrandt, Bryan Cave, Overland Park, KS, for defendant Mark M. Jackson.

Thomas M. Bradshaw, Daniel O. Herrington, Armstrong, Teasdale, Schlafly & Davis, Kansas City, MO, for defendant Robert Martinez, Jr.

Richard L. Hathaway, Office of U.S. Atty., Topeka, KS, for plaintiff U.S.


CROW, District Judge.

This is a criminal case in which the defendants are charged by a thirty-two count indictment for their association and conduct with Parkview Hospital (Parkview), a private, for profit psychiatric hospital in Topeka, Kansas. The defendant Mark Jackson worked as the administrator for Parkview while Robert Martinez was under contract to assist with Parkview's marketing efforts. The indictment alleges that Jackson and Martinez bribed Louis Albert Garcia, an employee with the United States Postal Service (Postal Service), to refer patients to Parkview. Louis Garcia was an employee assistance counselor with the Postal Service and provided assessment, referral, and counseling services for Postal Service employees and family members having chemical dependency or behavioral problems.

Count one charges both defendants with conspiring to defraud the United States of the faithful services of its employee Louis Garcia, in violation of 18 U.S.C. § 371. According to the indictment, the defendant Martinez asked Louis Garcia in October of 1990 to meet with the defendant Jackson. On November 9, 1990, the three met in Topeka, Kansas, and Jackson offered Garcia a monthly payment of $3,000 in return for referrals. Jackson advised that their arrangement would be documented as a consulting agreement and that Garcia would visit Topeka periodically to give the impression of performing training services. From November of 1990 to December 1991, Garcia referred forty-three patients to Parkview.

For each monthly payment to Garcia, both defendants are also charged with two counts. The even-numbered counts from two through thirty charge the defendants with bribery of Garcia in giving something of value in order to influence Garcia's official acts, in violation of 18 U.S.C. § 201(b)(1)(A). The odd-numbered counts from three through thirty-one charge the defendants with aiding and abetting Louis Garcia in the supplementation of his federal salary, in violation of 18 U.S.C. §§ 2 and 209. Count thirty-two charges that the defendants endeavored to obstruct and impede the federal grand jury investigation by advising Garcia to testify falsely that the payments were made as lawful compensation for consulting services, in violation of 18 U.S.C. § 1503.

MOTIONS TO SEVER (Dks. 24 and 34).

The defendant Martinez moves to sever (Dk. 24) arguing that certain evidence admissible only against Jackson would be highly prejudicial to Martinez in a joint trial. Such evidence includes the testimony of Beverly Rice, a Parkview administrative assistant, that Jackson dictated several letters to Garcia in December of 1990 thanking him for his marketing and training efforts and that Jackson directed her to backdate the letters to make it appear as if they were written over a one-year period. The defendant Martinez contends the letters are not admissible against him because he did not dictate, write, or prepare them. The defendant Martinez believes the jury will be unable to compartmentalize this evidence and consider it only against Jackson.

The defendant Jackson moves to sever (Dk. 34) making the same argument that evidence admissible only against Martinez would be unfairly prejudicial to Jackson in a joint trial. In May of 1990, Louis Garcia entered into a consulting agreement with Bowling Green Hospital, a psychiatric and substance abuse treatment center in Houston, Texas, and received monthly payments of $2500. Robert Martinez worked in the marketing department of Bowling Green Hospital and, according to Garcia, threatened Garcia with telling the Postal Service about the agreement unless he referred patients. The defendant Jackson also argues that Garcia's testimony in many instances inculpates Jackson even though the statements are attributed solely to Martinez. Jackson believes this presents Bruton problems curable only through separate trials.

Rule 8 of the Federal Rules of Criminal Procedure provides that "two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transactions constituting an offense or offenses." The defendants here do not argue they were joined improperly under Rule 8. Even if joinder is proper under Rule 8, severance is possible under Rule 14 when a defendant or the government would be prejudiced. Zafiro v. United States, ___ U.S. ___, 113 S.Ct. 933, 122 L.Ed.2d 317, 324 (1993).

Rule 14 of the Federal Rules of Criminal Procedure provides in pertinent part:

If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance or provide whatever other relief justice requires ...

In deciding a motion to sever, the district court must "weigh the prejudice resulting from a single trial of counts against the expense and inconvenience of separate trials." United States v. Hollis 971 F.2d 1441, 1456 (10th Cir.1992) (citation omitted), cert. denied, ___ U.S. ___, 113 S.Ct. 1580, 123 L.Ed.2d 148 (1993). Because severance is a matter of judicial discretion and not a right of the parties, the defendant must carry "`a heavy burden of showing real prejudice to his case.'" United States v. McConnell, 749 F.2d 1441, 1444 (10th Cir.1984) (quoting United States v. Petersen, 611 F.2d 1313, 1331 (10th Cir.), cert. denied, 447 U.S. 905, 100 S.Ct. 2985, 2986, 64 L.Ed.2d 854 (1979)). "The Supreme Court has emphasized that trial courts have `a continuing duty at all stages of the trial to grant a severance if prejudice does appear.'" United States v. Peveto, 881 F.2d 844, 857 (10th Cir.), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989) (quoting Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960)).

The federal criminal justice system prefers and values joint trials. Zafiro, ___ U.S. ___, 113 S.Ct. 933, 122 L.Ed.2d at 324. Joint trials promote economy and efficiency and "serve the interests of justice by avoiding the scandal and inequity of inconsistent trials." Richardson v. Marsh, 481 U.S. 200, 209, 107 S.Ct. 1702, 1708, 95 L.Ed.2d 176 (1987). These interests are most apparent when co-defendants are jointly indicted and face common conspiracy charges. See United States v. Jenkins, 904 F.2d 549, 557 (10th Cir.), cert. denied, 498 U.S. 962, 111 S.Ct. 395, 112 L.Ed.2d 404 (1990). Consequently, "courts generally adhere to the principle that `those indicted together, especially co-conspirators, should be tried together.'" Peveto, 881 F.2d at 857 n. 16 (quoting 8 J. Moore, W. Taggert & J. Wicker, Moore's Federal Practice ¶ 14.05, p. 14-82 (2 ed. 1989)); United States v. Petersen, 611 F.2d at 1332 ("`mutual participation of defendants in an offense or series of offenses is considered a logical, basic ground for refusing to grant a motion to sever'") (quoting United States v. Riebold, 557 F.2d 697 (10th Cir.), cert. denied, 434 U.S. 860, 98 S.Ct. 186, 54 L.Ed.2d 133 (1977)). "In the context of conspiracy, severance will rarely, if ever, be required." United States v. Searing, 984 F.2d 960, 965 (8th Cir.1993) (citation omitted). Joint trials "reduce the chance that each defendant will try to create a reasonable doubt by blaming an absent colleague" and provide "the jury the best perspective on all of the evidence and therefore increases the likelihood of a correct outcome." United States v. Buljubasic, 808 F.2d 1260, 1263 (7th Cir.), cert. denied, 484 U.S. 815, 108 S.Ct. 67, 98 L.Ed.2d 31 (1987) (citations omitted).

The Supreme Court recently summarized the law on severance under Rule 14 and identified certain relevant circumstances and their relative weight in deciding a request to sever:

We believe that, when 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. Such a risk might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant. For example, evidence of a codefendant's wrongdoing in some circumstances erroneously could lead a jury to conclude that a defendant was guilty. When many defendants are tried together in a complex case and they have markedly different degrees of culpability, this risk of prejudice is heightened. See Kotteakos v. United States, 328 U.S. 750, 774-775, 90 L.Ed. 1557, 66 S.Ct. 1239 1252-1253 (1946). Evidence that is probative of a defendant's guilt but technically admissible only against a codefendant also might present a risk of prejudice. See Bruton v. United States, 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620 (1968). Conversely, a defendant might suffer prejudice if essential exculpatory evidence that would be available to a defendant tried alone were unavailable in a joint trial. See, e.g., Tifford v. Wainwright, 588 F.2d 954 (5th Cir.1979) (per curiam). The risk of prejudice will vary

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