United States District Court, D. Colorado
For Sam Jahani, Defendant: Todd Elliott Mair, LEAD ATTORNEY, Stephen C. Peters, Peters Mair Wilcox, Denver, CO.
For Eric A. Peper, Defendant: Gary Lozow, LEAD ATTORNEY, Foster Graham Milstein & Calisher, LLP, Denver, CO; Anthony L. Leffert, Robinson, Waters & O'Dorisio, P.C., Denver, CO; Michael Craig Santo, Bechtel & Santo, L.L.P., Grand Junction, CO.
For USA, Plaintiff: Michelle M. Heldmyer, LEAD ATTORNEY, U.S. Attorney's Office-Grand Junction, Grand Junction, CO; Jaime A. Pena, Tonya Shotwell Andrews, U.S. Attorney's Office-Denver, Denver, CO.
ORDER BIFURCATING TRIAL
CHRISTINE M. ARGUELLO, United States District Judge.
On the three-year-and-three-month anniversary of the Government's original Indictment in this case, the Court examines Defendants' Motions to Sever (Doc. ## 180, 185, 280, 287), requesting that the Court sever the indictment's counts in one of two ways. So-called " plan A" severance would involve severance of the counts alleging health care fraud resulting in death and unlawful dispensation or distribution of substances resulting in death from the remaining counts. " Plan B" involves severing the Controlled Substances Act (" CSA") counts from the remaining counts.
This Court has deferred to the lawyers for far too long: it has indulged in their predilection to litigate the knotty procedural and evidentiary issues raised by the Government's prosecution of this case. This litigation has only begat more and more litigation and the perennial promise that " just one more" filing or explanation or hearing will--finally--simplify matters. The parties have finally forced the Court's hand, and it must end this downward spiral of quasi-self-perpetuating litigation and get this case back on track. It is time to give the Defendants--and the alleged victims of their crimes--their day in court. Our Constitution commands that trials occur in a reasonably expeditious fashion, for very good reason:
The public is concerned with the effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Just as delay may impair the ability of the accused to defend himself, so it may reduce the capacity of the government to prove its case. Moreover, while awaiting trial, an accused who is at large may become a fugitive from justice or commit other criminal acts. And the greater the lapse of time between commission of an offense and the conviction of the offender, the less the deterrent value of his conviction.
Dickey v. Florida, 398 U.S. 30, 42, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970) (Brennan, J., concurring).
Pursuant to Fed. R. Crim. P. 14(a), the Court finds that a separate trial of only the individual CSA counts, i.e., Counts 28 through 65 of the Second Superseding Indictment, is both necessary and appropriate in order to avoid prejudice to the Defendants and to ensure justice in this case. The Government has assured the Court that " the gravamen of the entire indictment, every charge in the indictment is the illicit and illegal prescription of controlled substances." (Doc. # 183-1 at 12.) Trying the CSA Counts first--and separately--presents the most viable solution to cut through the indictment's needless complexity and move this case forward, because Defendants have been on notice since the original indictment about the nature of these relatively straightforward charges. Additionally, the universe of evidence that the Government seeks to rely upon in presenting these counts has remained (relatively) constant since this case was filed.
The Court does not exercise this discretion lightly, and employs bifurcation only as a " solution of last resort." Had the parties resolved the needless (and significant) problems with the various iterations of the indictment sooner, this case would have been tried precisely as the Government envisioned it, with the speed that justice requires--for both Defendants and for their alleged victims. However, what's past is prologue,  and, given this case's tortured past, the Court concludes that bifurcation now represents the only path forward.
This criminal case was filed in 2011. Lamentably, three years, many status conferences and hundreds of pages of briefing later, it remains pending. After two and a half years of litigation regarding the infirmities of the original Indictment and Superseding Indictment, on August 26, 2014, the Government filed the Second Superseding Indictment (" SSI") which is now the operative pleading in this case. The SSI, which contains 65 counts, alleges that Defendants committed four broad categories of crimes: (1) Counts 2-17 allege specific instances of health care fraud perpetrated by the Defendants (including five additional counts from those alleged in the Superseding Indictment); (2) Counts 18-27 allege specific instances when the Defendants laundered money; and (3) Counts 28-65 allege specific instances of distribution of controlled substances in violation of the Controlled Substances Act (CSA), including for dispensing or distribution of controlled substances resulting in death of four patients. (Doc. # 365.) In addition, Count 1, a new count, alleges a wide-ranging conspiracy to commit health care fraud, launder money, and violate the CSA. (Id.)
The core narrative of the Government's case is relatively simple to understand: Defendants, both doctors, allegedly used their medical licenses to contribute to the epidemic of prescription drug abuse that is a scourge of rural communities across the United States. There are laws that punish doctors who engage in such behavior, and our Constitution provides that a jury will ultimately determine whether Defendants' alleged actions rise to the level of criminal culpability.
What has prevented these important questions from being presented to a jury, however, is the complicated and constantly changing manner in which the Government has linked the alleged actions of the ...