1

Defendant Chapple was indicted along with ten co-defendants: George Williams,

Brandon Williams, Nancy Williams, Yolando Young, Ernest Larry Adams, Webb Smith,

Gregory Palmer, Nathaniel Darryl Williams, Anthony Richardson, and Katrina Lyons.

2

Co-defendants Lyons and Adams filed a Notice of Joinder/Concurrence in Chapple’s

motion (D/E #121, #132).

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff, CRIMINAL NO. 09-20224

v. DISTRICT JUDGE VICTORIA A. ROBERTS

NEIL CHAPPLE (D-7), MAGISTRATE JUDGE VIRGINIA M. MORGAN

Defendant.1

________________________________/

OPINION AND ORDER DENYING DEFENDANT

NEIL CHAPPLE’S MOTION FOR SEVERANCE (D/E #108)

I. Introduction

This matter comes before the court on defendant Neil Chapple’s Motion for Severance

(D/E #108)2 The government filed a response in opposition to that motion (D/E #138) and this

court heard oral arguments on January 15, 2010. For the reasons discussed below, this court

orders that Chapple’s Motion for Severance be DENIED.

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II. Background

In this case, defendant Chapple was indicted along with ten co-defendants: George

Williams, Brandon Williams, Nancy Williams, Yolando Young, Ernest Larry Adams, Webb

Smith, Gregory Palmer, Nathaniel Darryl Williams, Anthony Richardson, and Katrina Lyons. 

(D/E #4) In the “General Allegations” section of the Indictment, the government alleges that the

named defendants and others engaged in a scheme and pattern of illegal conduct involving

prescription drug controlled substances and fraudulent health care billings. (Indictment, p. 1) In

that alleged scheme, George Williams organized and operated a purported health care business

under the name Quick Response Medical Professionals, P.C. (“QRMP”). (Indictment, pp. 1-2) 

Brandon Williams and Nancy Williams allegedly assisted in the creation and operation of

QRMP. (Indictment, p. 3) Brandon Williams and Nancy Williams are also alleged to have

caused fraudulent Medicare billings. (Indictment, p. 3) 

George Williams allegedly recruited “fake patients” to see doctors employed by QRMP,

with QRMP employee Yolanda Young scheduling the visits and instructing the patients to ask

for particular controlled substance prescriptions with a high street value. (Indictment, p. 2) 

Other alleged employees of QRMP included Gregory Palmer and Darryl Williams, who

transported most of the fake patients, and Anthony Richardson, who worked as a security guard

protecting the cash and keeping order. (Indictment, p. 2)

The patients were allegedly paid up to $220 for their time and use of their Medicare care,

but they did not retain the prescriptions. (Indictment, p. 2) George Williams allegedly retained

the prescriptions and had them filled at various cooperating pharmacies. (Indictment, p. 2) The

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3

According to the government, due to a clerical error, the Indictment refers to Oxycontin

in Count Eight when the drug actually seized was Vicodin. The government also asserts that the

error will be corrected before trial by either a stipulation or a superseding indictment.

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controlled substances were then picked up by George Williams, Webb Smith, and/or Ernest

Larry Adams. (Indictment, p. 2) Employees such as Smith or Adams were then directed to

deliver the controlled substances to distributers in exchange for money. (Indictment, p. 2) One

of the alleged distributers was Katrina Lyons. (Indictment, pp. 2-3) 

In the specific counts of the indictment, Chapple is charged in Count One (“21 U.S.C. §§

846, 841(a)(1) - Conspiracy to Distribute and Possess with Intent to Distribute Controlled

Substances”); Count Four (“21 U.S.C. § 841(a)(1) - Possession with Intent to Distribute

Controlled Substances -Oxycodone”); Count Eight (“21 U.S.C. § 841(a)(1) - Possession with

Intent to Distribute Controlled Substances -Oxycodone”)3

; and Count Eighteen (“Forfeiture

Allegations (18 U.S.C. 981(a)(1)(C), and 28 U.S.C. 2461(c); 21 U.S.C. § 853)”). With respect to

the specific possession with intent to distribute charges, Count Four is only against Chapple and

it relates to a July 3, 2008 while Count Eight is against both Chapple and Adams and it relates to

an October 27, 2008 incident.

III. Discussion

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Fed. R. Crim P. 8 provides: “(a) Joinder of Offenses. The indictment or information may

charge a defendant in separate counts with 2 or more offenses 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 are connected with or constitute parts of a common scheme or plan. (b)

Joinder of Defendants. The indictments 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.”

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In his motion before the court, Chapple argues that the charges against him should be

severed from this case and that he be granted a separate trial on the basis of either misjoinder or

prejudicial joinder.

A. Misjoinder

As a preliminary matter, this court would note that, while Chapple argues that Count

Four was misjoined under both Fed. R. Crim. P. 8(a) and 8(b)4, courts have traditionally held that

Rule 8(a) applies only to a prosecution of a single defendant while Rule 8(b) applies exclusively

whenever multiple defendants are involved, even if a defendant is contesting only the joinder of

counts against himself. See United States v. Frost, 125 F.3d 346, 389 (6th Cir. 1997) (quoting 1

Charles Alan Wright, Federal Practice and Procedure: Federal Rules of Criminal Procedure §

143 p. 479, § 144 p. 494 (2d ed. 1982). One Circuit Court of Appeals has held, however, that

Rule 8(a) applies where all of the defendants were charged on the same counts, see United States

v. Southwest Bus Sales, Inc., 20 F.3d 1449, 1454 (8th Cir. 1994), while another court has

suggested that contrary to the traditional rule, the more lenient Rule 8(a) applies when a

defendant in a multiple-defendant prosecution challenges only joinder of the offenses charged

against himself, see United States v, Eufrasio, 935 F.2d 553, 570 n. 20 (3d Cir. 1991). The Sixth

Circuit has not decided if both Rule 8(a) and Rule 8(b) apply to cases such as this, see, e.g.,

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Frost, 125 F.3d at 389 (declining to decide issue). “The primary difference between the two

sections is that it is easier to justify joinder under Rule 8(a) because, unlike Rule 8(b), it also

permits joinder of offenses which are merely of ‘the same or similar character.’” Frost, 125 F.3d

at 389 (quoting Fed. R. Crim. P. 8(b)). Given that difference, the court need not decide whether

Rule 8(a) has any application in this case because, as discussed below, joinder was proper under

the more stringent standard of Rule 8(b).

With respect to joinder of defendants, Fed. R. Crim P. 8(b) provides:

(b) Joinder of Defendants. The 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. 

“There is a preference in the federal system for joint trials of defendants who are indicted

together” Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993),

and the Sixth Circuit has noted that, “[a]s a general rule, persons jointly indicted should be tried

together” United States v. Driver, 535 F.3d 424, 427 (6th Cir. 2008) (internal quotation omitted). 

See also, United States v. Swift, 809 F.2d 320, 322 (6th Cir. 1987) (Fed. R. Crim. P. 8(b) should

be construed broadly in light of protections afforded by Rule 14(a)). Joinder is not limitless

however, and the Sixth Circuit has stated: 

the joinder of multiple defendants is proper under Rule 8(b) only if

each of the counts of the Indictment arises out of the same act or

transaction, or series of acts or transactions even if all counts of the

Indictment includes a common defendant.

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[United States v. Hatcher, 680 F2d 438, 441 (6th Cir, 1982).] See also United States v.

Davidson, 936 F.2d 856, 861 (6th Cir. 1991) (holding that a joinder is appropriate if there exists

a sufficient nexus between the defendants and the accused acts or transactions); United States v.

Frost, 125 F.3d 346, 389 (6th Cir. 1997) (holding that the joinder of defendants is proper if each

count of the indictment arises out of logically interrelated acts or transactions (quotation

omitted). Whether joinder is proper under Rule 8 is a question of law, determined by the

allegations on the face of the indictment. United States v. Deitz, 577 F.3d 672, 691 (6th Cir.

2009); United States v. Chavis, 296 F.3d 450, 458 (6th Cir. 2002); Frost, 125 F.3d at 389. 

Here, Chapple argues that Count Four, a count that charges only Chapple, is misjoined

and should be severed from the rest of the indictment because there is no evidence that the pills

which are the subject of Count Four are (1) based on the same act or transaction as the rest of the

counts in the indictment, or (2) are connected with those counts, or (3) constitute parts of a

common scheme or plan. In response, the government argues that defendant’s attempt to turn

this into a factual question is not supported by any of the cases cited by the defendant and that

joinder is proper on the face of the Indictment. The government also argues that it alleged in the

Indictment that Chapple was part of a conspiracy to distribute prescription drugs and that, on two

occasions, Chapple was caught transporting such drugs back to Kentucky.

This court finds that the joinder of Chapple and Count Four was proper. Examining the

face of the Indictment, it is clear that Chapple is generally alleged to have been involved in a

conspiracy to distribute and possess with intent to distribute controlled substances and

specifically, the possession and intent to distribute Oxycodone as charged in Count Four, is

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alleged to be part of that conspiracy. The controlled substances were allegedly unlawfully

retained through the operations of QRMP, an organization through which defendants allegedly

engaged in a scheme and pattern of illegal conduct involving prescription drugs and controlled

substances and fraudulent health care billings. While Chapple is the only defendant charged in

Count Four and he is not alleged to have been directly part of every aspect of the conspiracy,

such as the fraudulent health care billings, “[a]ll defendants need not be charged in each count,”

Fed. R. Crim. P. 8(b), and there exists a sufficient nexus between Count Four and the remaining

charges. Given the alleged organization and conspiracy in this case, as well as the alleged time

frame of the conspiracy and the dates involved in Count Four, each count of the indictment arises

out of logically interrelated acts or transactions and joinder was therefore proper. 

B. Prejudicial Joinder

With respect to prejudicial joinder, Fed. R. Crim. 14 provides:

(a) Relief. If the joinder of offenses or defendants in an

indictment, an information, or a consolidation for trial appears to

prejudice a defendant or the government, the court may order

separate trials of counts, sever the defendants' trials, or provide any

other relief that justice requires.

(b) Defendant's Statements. Before ruling on a defendant’s motion

to sever, the court may order an attorney for the government to

deliver to the court for in camera inspection any defendant’s

statement that the government intends to use as evidence.

As discussed above, “[t]here is a preference in the federal system for joint trials of defendants

who are indicted together,” Zafiro, 506 U.S. at 537, and the Sixth Circuit has noted that, “[a]s a

general rule, persons jointly indicted should be tried together” Driver, 535 F.3d at 427. 

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Therefore, the defendant moving to sever has the “heavy burden of showing specific and

compelling prejudice.” United States v. Harris, 9 F.3d 493, 500 (6th Cir.1993). The United

States Supreme Court has advised that “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, 506 U.S. at 539. Even where the risk of prejudice is high, “less drastic measures, such as

limiting instructions, often will suffice to cure any risk of prejudice,” Zafiro, 506 U.S. at 539,

and “[a] request for severance should be denied if a jury can properly compartmentalize the

evidence as it relates to the appropriate defendants.” Driver, 535 F.3d at 427 (internal quotation

omitted). The fact that proof may be greater against a co-defendant is not a valid reason to sever. 

Zafiro, 506 U.S. at 539 ; United States v. Warner, 971 F.2d 1189, 1196 (6th Cir. 1992).

Here, Chapple argues that all of the other defendants, with the possible exception of

defendant Lyons, have some alleged connection to the alleged health care fraud scheme while

Chapple does not. Chapple also argues that most of the evidence that the government will be

introducing at trial will concern the alleged health care fraud, and that the evidence of the health

care fraud is irrelevant to the charges against Chapple and would not be admissible in a trial

against Chapple alone. According to Chapple, this situation contains the very real risk of a

prejudicial spillover effect from a joint trial.

This court finds that Chapple has failed to meet his heavy burden of demonstrating

prejudicial joinder and his motion for relief pursuant to Fed. R. Crim. P. 14 is denied. As

discussed above, the charges against Chapple are related to the other charges in the Indictment,

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including the health care fraud, and he was properly joined as a defendant. Additionally, any

potential prejudice can be cured by less drastic measures, such as limiting instructions, Zafiro,

506 U.S. at 539. “[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, 506 U.S. at

539. Chapple has failed to show such a risk in his case and his motion to sever on the basis of

prejudicial joinder is denied. 

IV. Conclusion

For the reasons discussed above, this court orders that Chapple’s Motion for Severance

be DENIED.

The parties to this action may object to and seek review of this Order through an appeal

to the district judge, but are required to act within fourteen (14) days of service of a copy hereof

as provided for in 28 U.S.C. § 636(b)(1)(A) and Fed. R. Civ. P. 72(a). See also E.D. Mich. LR

72.1(d)(1). Failure to file specific objections constitutes a waiver of any further right of appeal. 

Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir.

1991); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). Pursuant to E.D. Mich.

LR 72.1(d)(1), a copy of the appeal is to be served upon this magistrate judge.

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Within fourteen (14) days of service of any objecting party’s timely filed appeal, the

opposing party may file a response. The response shall be not more than 20 pages in length

unless by motion and order such page limit is extended by the court. The response shall address

specifically, and in the same order raised, each issue raised in the appeal.

SO ORDERED.

S/Virginia M. Morgan 

Virginia M. Morgan

United States Magistrate Judge

Dated: January 29, 2010

 

PROOF OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record via the Court’s

ECF System and/or U. S. Mail on January 29, 2010.

s/Jane Johnson 

Case Manager to

Magistrate Judge Virginia M. Morgan

 

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