United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI CHIEF UNITED STATES DISTRICT JUDGE.
the Court is the United States' Motion to Sever
Defendants for Trial [Doc. No. 99]. Defendants have filed a
joint response in opposition [Doc. No. 100]. The matter is
fully briefed and at issue.
Dossey, a licensed pharmacist, and Dr. James Ferris, a
licensed physician (“Defendants”), are charged in
a 103-count Indictment with distributing controlled
substances outside the usual course of professional medical
practice, in violation of 21 U.S.C. § 841(a)(1), and
Medicare fraud, in violation of 18 U.S.C. § 1347. [Doc.
No. 1]. Although Defendants are not charged with conspiracy,
they are charged with the substantive crimes and with aiding
and abetting the substantive crimes of each other.
See 18 U.S.C. § 2. The case is currently set
for jury trial on September 17, 2019.
Defendants testified under oath before the Oklahoma Medical
Board on May 4, 2017, concerning the facts and circumstances
surrounding the allegations in the Indictment. The United
States asserts that at this hearing both Defendants
“made relevant admissions regarding their own conduct
and the conduct of each other.” [Doc. No. 99 at 3]. At
trial, the United States intends to offer into evidence
Defendants' testimony before the Medical Board and
statements that Defendants made to investigators. To avoid
creating a Sixth Amendment violation under Bruton v.
United States, 391 U.S. 123 (1968), and Crawford v.
Washington, 541 U.S. 36 (2004), the United States has
moved to sever the trial of Defendants.
have responded in opposition advising that they desire a
joint trial for strategic purposes, and that they will waive
any appellate issue under Bruton. Defendants advised
that they would file a written waiver, in the event the Court
requires one. Defendants also stated their intention to offer
the testimony of each Defendant from the Medical Board
hearing as evidence at trial even if the trials are separate.
Sixth Amendment provides that “In all criminal
prosecutions, the accused shall enjoy the right … to
be confronted with the witnesses against hi m … .
” U.S. Const. amend. VI. “[T]he right of
cross-examination is included in the right of an accused in a
criminal case to confront the witnesses against him.”
Bruton, 391 U.S. at 126. In fact, “a major
reason underlying the constitutional confrontation rule is to
give a defendant charged with [a] crime an opportunity to
cross-examine the witnesses against him.” Id.
(internal quotation marks and citation omitted).
Bruton, during a joint trial, the trial court
admitted a non-testifying co-defendant's confession which
implicated both defendants. Id. at 124. The trial
court instructed the jury that the statement could only be
used against the defendant who made the statement, and that
it must be disregarded as to the co-defendant. Id.
at 136. The Supreme Court held that the admission of the
co-defendant's statement was a prejudicial error, and
that a limiting instruction could not cure the error.
Id. at 137.
Crawford, the Supreme Court held that out-of-court
statements that are testimonial are barred under the
Confrontation Clause unless the witness is unavailable and
the defendant had a prior opportunity to cross-examine the
witness, regardless of whether such statements are deemed
reliable. Crawford, 541 U.S. at 55-59. However,
constitutional rights can be and are often waived by
defendants. For example, the Fifth Amendment right to silence
and the Sixth Amendment right to counsel can be waived. The
right to a trial by jury is commonly waived, as is the right
to a speedy trial or to a grand jury indictment. Conflicts
with counsel can also be waived.
Sixth Amendment right of confrontation is no different.
“[C]ounsel in a criminal case may waive a client's
Sixth Amendment right of confrontation by opening the door,
so long as the defendant does not dissent from his
attorney's decision and so long as it can be said that
the attorney's decision was a legitimate trial tactic or
part of a prudent trial strategy.” United States v.
Lopez-Medina, 596 F.3d 716, 731 (10th Cir.
2010) (internal quotation marks and citation omitted).
is, however, “a presumption against the waiver of
constitutional rights.” Brookhart v. Janis,
384 U.S. 1, 4 (1966). “[F]or a waiver to be effective
it must be clearly established that there was ‘an
intentional relinquishment or abandonment of a known right or
privilege.'” Id. (quoting Johnson v.
Zerbst, 304 U.S. 458, 464 (1938)). The Tenth Circuit in
Lopez-Medina examined the confrontation waiver in
the context of Crawford:
Prior to Crawford, we held there was “no
doubt” a defendant could waive his rights under the
Confrontation Clause. See Hawkins v. Hannigan, 185
F.3d 1146, 1154 (10th Cir. 1999).… The
parties do not argue Crawford changed this rule.
“[B]ecause there is a presumption against the waiver of
constitutional rights, for a waiver to be effective it must
be clearly established that there was an intentional
relinquishment or abandonment of a known right or