United States District Court, D. Maine
ORDER ON MOTION TO SEVER
Z. Singal United States District Judge.
the Court is Defendant's Motion to Sever (ECF No. 25).
Defendant Joel Sabean has been charged in a 58-count
indictment with five counts of tax evasion (Counts 1-5),
fifty-two counts of unlawful distribution of controlled
substances via prescription fraud (Counts 6-57), and a single
count of health care fraud (Count 58). Via the Motion to
Sever, he asks for a separate trial on his five counts of tax
evasion arguing impermissible joinder and, alternatively,
severance based on undue prejudice. For reasons briefly
explained herein, the Court DENIES the Motion.
STANDARD OF REVIEW
Rule of Criminal Procedure 8 provides that an indictment
“may charge a defendant in separate counts with 2 or
more offenses if the offenses charged . . . 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.” Fed. R. Crim. P. 8(a). The
First Circuit has previously explained that Rule 8 is
“construed . . . generously in favor of joinder”
with “similarity” assessed in terms of “how
the government saw its case at the time of indictment.”
United States v. Boulanger, 444 F.3d 76, 87 (1st
Cir. 2006) (internal citations and quotations omitted).
Rule of Criminal Procedure 14 provides that the court may
sever the offenses contained in a single indictment for trial
if joinder “appears to prejudice” the defendant.
Fed. R. Crim. P. 14(a). The First Circuit has generally
required “a strong showing of prejudice” in order
to sever counts for trial. See United States v.
Jordan, 112 F.3d 14, 16 (1st Cir. 1997)
(quoting United States v. Gray, 958 F.2d 9,
14 (1st Cir. 1992)). In discussing the types of prejudice
that can meet this mark, the First Circuit has recognized
(1) the defendant may become embarrassed or confounded in
presenting separate defenses; (2) proof that defendant is
guilty of one offense may be used to convict him of a second
offense, even though such proof would be inadmissible in a
separate trial for the second offense; and (3) a defendant
may wish to testify in his own behalf on one of the offenses
but not another, forcing him to choose the unwanted
alternative of testifying as to both or testifying as to
Jordan, 112 F.3d at 16; see also United States
v. Richardson, 515 F.3d 74, 81 (1st Cir. 2008).
Evasion Counts (Counts 1-5) in the pending Indictment allege
that Dr. Sabean overstated his Schedule A deduction resulting
in an understatement of his taxable income and the amount of
income tax due. These offenses allegedly occurred between
October 21, 2009 and October 18, 2013. The overstated
deductions related to medical expenses and were allegedly
supported by false medical expense receipts Dr. Sabean
obtained from a family member, Shannon Sabean. The
Prescription Fraud Counts (Counts 6-57) allege that Dr.
Sabean unlawfully issued prescriptions to Shannon Sabean
outside the course of professional practice and without
legitimate medical purpose. These offenses allegedly occurred
between December 15, 2010 and January 4, 2014. The Health
Care Fraud Count (Count 58) alleges that Dr. Sabean issued
prescriptions in the name of one family member, who was
covered by an Aetna insurance plan, knowing that the
prescriptions were being picked up and utilized by Shannon
Sabean, who was not covered under that Aetna plan. This
alleged scheme took place between March 28, 2010 and December
readily apparent that all of these charges relate to the same
time period and involve similar issues related to the medical
conditions and medical treatment received by Shannon Sabean.
As laid out in the Government's proffer in response to
this Motion, it is also clear that all of the charges were
allegedly part of a common scheme, will involve the same key
witnesses, and require the jury to make the same assessment
as to the credibility of those witnesses. Thus, the Court
finds that Rule 8's rather low bar is met. The only
question that remains is whether Defendant has presented a
strong showing of prejudice to justify severance. The Court
concludes he has not.
United States v. Shellef, 507 F.3d 82 (2d Cir.
2007), Defendant maintains that the joinder of the Tax
Evasion Counts with the Prescription Fraud and Healthcare
Fraud Counts can only be proper if the Government can show
that “the tax offenses arose directly from the other
offenses charged.” (See Def. Mot. to Sever
(ECF No. 25) at 3-6; Def. Reply (ECF No. 39) at 3.) While
Shellef does not reflect precedent that is binding
on this Court, the Shellef case is also
distinguishable from this case. See 507 F.3d at
98-100. In this case, the Government's proffered motive
does link the tax counts with the other fraud counts.
Moreover, the Court concludes that the evidence regarding
Defendant's issuance of prescriptions for use by Shannon
Sabean would be admissible under F.R.E. 404(b) & 403 in a
trial on only the Tax Evasion Count. The Court is similarly
satisfied that the “common scheme” proffered by
the Government makes this case distinguishable from
United States v. Randazzo, 80 F.3d 623 (1st Cir.
1996), and the First Circuit's decision in
Jordan. Cf. Jordan, 112 F.3d at 18 (finding
that tax return “evidence presented would not have been
admissible at a separate trial”); Randazzo, 80
F.3d at 627 (“The misconduct underlying the shrimp
counts and the improper claiming of expenses on the returns
were not part of the same ‘scheme or plan' in any
sense of the phrase.”) In short, none of the
prejudicial scenarios previously recognized by the First
Circuit as justifying severance are presented here. See
Jordan, 112 F.3d at 16.
Defendant's argument regarding the different intent
elements of the separate charges does not support severance.
Rather, the Court concludes that this type of juror confusion
can be avoided by clearly instructing the jury. See
United States v. Baltas, 236 F.3d 27, 34 (1st Cir. 2001)
(explaining how a trial court may use jury instructions to
prevent potential spillover prejudice).
that Defendant cannot meet his burden of showing that a
single trial on the pending Indictment would result in
substantial prejudice that could be avoided by holding
separate trials on ...