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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff(s), CASE NUMBER: 09-20224

HONORABLE VICTORIA A. ROBERTS

v.

NEIL CHAPPLE,

Defendant(s).

 /

 

ORDER

I. BACKGROUND AND PROCEDURAL HISTORY

The Government alleges that Defendant George Williams organized and

operated a purported health care business under the name Quick Response Medical

Professionals, P.C. (“QRMP”). Williams recruited fake patients to see doctors employed

by QRMP. Most of the patients were scheduled for doctor visits by co-Defendant

Yolando Young, who instructed the patients to ask for prescriptions for drugs with a high

street value. The fake patients could not keep their prescriptions; QRMP employees,

under Williams’ direction, retained the prescriptions.

The prescriptions were filled at various cooperating pharmacies. Williams paid

cash for the drugs, and either personally picked up the controlled substances, or had

employees pick them up. Employees delivered the controlled substances to distributors

in exchange for money.

Defendant Neil Chapple is charged with: (1) Conspiracy to Distribute and

Possess with Intent to Distribute Controlled Substances, in violation of 21 U.S.C. §§ 846

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and 841(a)(1) (Count I); and (2) two counts of Possession with Intent to Distribute

Controlled Substances - Oxycodone, in violation of 21 U.S.C. §841(a)(1) (Counts IV and

VIII).

On November 11, 2009, Chapple filed a Motion for Severance. (Doc. #108). 

On January 29, 2010, Magistrate Judge Virginia M. Morgan filed an “Opinion and

Order Denying Defendant Neil Chapple’s Motion for Severance.” (Doc. #159). The

Magistrate Judge says Count IV of the Indictment is part of the alleged conspiracy to

distribute and possess with intent to distribute controlled substances. According to the

Magistrate Judge, while Chapple was not involved in the fraudulent health care billings,

there is a sufficient nexus between Count IV and the remaining counts.

In addition, the Magistrate Judge says Chapple failed to prove how he was

prejudiced by the joinder. 

Before the Court are Chapple’s objections to the Magistrate Judge’s Opinion and

Order. (Doc. #169).

II. APPLICABLE LAW AND ANALYSIS

A. Misjoinder

Chapple says Count IV is misjoined; there is nothing in the Indictment that links

his alleged possession of OxyContin on July 3, 2008, to the conspiracy charged in

Count I. According to Chapple, when the Michigan State Police seized the OxyContin

pills from him during a traffic stop, they were loose in a plastic bag; they were not in

labeled prescription bottles. 

Pursuant to Fed. R. Crim. P. 8(b):

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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.

“While it is true that Rule 8(b) should be construed in favor of joinder, it is also

true that failure to meet the requirements of this rule constitutes misjoinder as a matter

of law.” United States v. Hatcher, 680 F.2d 438, 440 (6th Cir. 1982) (internal citation

omitted). The Sixth Circuit held that “[u]nder Rule 8(b) multiple defendants may be

joined only if a sufficient nexus exists between the defendants and the single or multiple

acts or transactions charged as offenses.” United States v. Johnson, 763 F.2d 773, 775

(6th Cir. 1985) (emphasis added). “[A] group of acts or transactions constitutes a

‘series’ if they are logically interrelated. A group of acts or transactions is logically

interrelated, for instance, if the acts or transactions are part of a common scheme or

plan.” Id. at 776 (internal citations omitted). 

In a case of misjoinder, “the trial judge has no discretion on the question of

severance. Severance in such a case is mandatory.” Hatcher, 680 F.2d at 442

(citations omitted). 

In Hatcher, defendants Hatcher and Manetas were jointly indicted and jointly tried

for federal narcotics crimes. Both defendants were charged with three counts relating to

possession and distribution of heroin. Additionally, Hatcher alone was charged with

three counts relating to possession and distribution of cocaine. Hatcher, 680 F.2d at

440. The Sixth Circuit held the fact that all counts against both defendants were based

on possession and distribution of narcotics was insufficient to justify joinder, even

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though the evidence showed that Manetas was Hatcher’s source of heroin. See id. at

442. The trial judge committed reversible error by not granting Manetas’ motion for

Rule 8(b) severance, because “the indictment on its face alleges no connection

between Manetas and the cocaine-related charges against Hatcher. Neither does the

record reveal any evidence of such a connection.” Id. at 441. The Sixth Circuit

emphasized “[i]f multiple defendants are improperly joined under Rule 8(b) because

they are charged with offenses that are unrelated, then they are considered as

prejudiced by that fact and the trial judge has no discretion on the question of

severance.” Id.

Count I says that between January 2007 and December 2008, George, Nancy

Williams, Young, Ernest Larry Adams, Webb Smith, Chapple, Gregory Palmer,

Nathaniel Darryl Williams, Anthony Richardson, and Katrina Lyons conspired to

unlawfully distribute and possess with intent to distribute OxyContin, Viccodin, Viccodin

ES, Lortab, Xanax, and cough syrup with codeine. 

Count IV says that on July 3, 2008 – which is within the time frame of the alleged

drug conspiracy – Chapple possessed with intent to distribute 413 dosage units of

OxyContin.

In addition, Chapple’s drug charges are logically interrelated to the alleged health

care fraud. Without the health care fraud and unlawful payments to Medicare

beneficiaries, QRMP would not have obtained the prescriptions for the controlled

substances that Chapple allegedly possessed and distributed. 

Count IV is not misjoined; it is related to the other counts in the Indictment. 

B. Prejudicial Joinder

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Chapple asks the Court to sever him from his co-Defendants pursuant to Fed. R.

Crim. P. 14(a). He says he will be prejudiced by a joint trial because the majority of the

evidence will be offered to prove the health care fraud. 

There is a preference in the federal courts for joint trials of defendants indicted

together, because joint trials “play a vital role in the criminal justice system,” promote

efficiency, and “serve the interests of justice by avoiding the scandal and inequity of

inconsistent verdicts.” Zafiro v. United States, 506 U.S. 534, 537 (1993) (quoting

Richardson v. Marsh, 481 U.S. 200, 209-210 (1987)).

But, under Fed. R. Crim. P. 14(a) “If the joinder of . . . defendants in an

indictment . . . appears to prejudice a defendant . . ., the court may . . . sever the

defendants’ trials[.]” Chapple has the burden to show a “specific and compelling

prejudice” arising from the joint trial. See United States v. Harris, 9 F.3d 493, 500 (6th

Cir. 1993). 

[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.

 

Zafiro, 506 U.S. at 539 (emphasis added). 

Even assuming that the majority of the Government’s evidence relates to the

health care fraud, and such evidence would not be admissible if Chapple were tried

alone, the health care fraud evidence will not be admitted against Chapple; the Court

will provide a limiting instruction. See id. (even when the risk of prejudice is high, less

dramatic measures, such as limiting instructions, often will suffice to cure any risk of

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prejudice) (citing Richardson v. Marsh, 481 U.S. 200, 211 (1987)).

III. CONCLUSION

The Court ADOPTS the Magistrate Judge’s Opinion and Order. Chapple’s

motion is DENIED.

IT IS ORDERED. 

s/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: March 12, 2010

The undersigned certifies that a copy of this

document was served on the attorneys of

record by electronic means or U.S. Mail on

March 12, 2010.

s/Linda Vertriest 

Deputy Clerk

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