Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Parks

United States District Court, N.D. Oklahoma

October 16, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
CHRISTOPHER R. PARKS, GARY ROBERT LEE, JERRY MAY KEEPERS, and KRISHNA BALARAMA PARCHURI, Defendants.

          OPINION AND ORDER

          CLAIRE V. EAGAN, UNITED STATES DISTRICT JUDGE

         Now before the Court are defendant Gary Robert Lee's Motion to Extend Scheduling Order Deadlines (Dkt. # 89), Defendant Parchuri's Motion to Sever (Dkt. # 107), Defendant Parchuri's Motion for James Hearing (Dkt. # 108), and Defendant Parchuri's Second Motion for Identification and Disclosure of Brady/Giglio Material (Dkt. # 111). On December 7, 2018, a grand jury returned an indictment charging Christopher R. Parks and Lee with conspiracy to commit an offense against the United States (count one). Dkt. # 3. Parks and Lee are accused of paying bribes or kickbacks to physicians to induce the physicians to refer patients to pharmacies operated by Parks and Lee to fill prescriptions for expensive compounded drugs. Id. at 3. Counts two through twenty-four of the indictment charge Jerry May Keepers, a physician, with willfully soliciting bribes or kickbacks from Parks and Lee in exchange for patient referrals with the knowledge that federal healthcare programs would be billed for compounded drugs. Id. at 16-18. Parks, Lee, and Keepers are also charged with conspiracy to commit health care fraud in violation of 18 U.S.C. §§ 1347 and 1349 in count twenty-five of the indictment. Id. at 20-21.

         The parties filed a joint motion to declare this matter a complex case under the Speedy Trial Act, 18 U.S.C. § 3161 et seq., and the parties requested a 9 month continuance of the jury trial set for February 19, 2019. The Court considered the volume of discovery and the complexity of the factual and legal issues involved in the case, and found that it would be unreasonable to expect the parties to prepare for trial within the deadlines set by the Speedy Trial Act. Dkt. # 39, at 4. On June 12, 2019, a grand jury returned a superseding indictment adding charges against Krishna Balarama Parchuri. Dkt # 48. Parchuri is charged with conspiracy to commit an offense against the United States (count one), conspiracy to commit health care fraud (count twenty five), soliciting and receiving health care kickbacks (counts twenty six to thirty two), and obstructing an investigation into health care fraud (count thirty three). Lee initially retained counsel to represent him in this matter, but retained counsel received leave to withdraw from the representation when Lee was no longer able to pay for retained counsel. Dkt. # 87. The Court appointed Thomas Wright to represent Lee, and Wright states that he promptly contacted plaintiff's counsel to gather discovery materials. Dkt. # 89, at 7. Wright also contacted Lee's former attorneys and requested Lee's file. Id. As of September 30, 2019, Wright had not received any discovery materials from plaintiff's counsel or Lee's former attorneys, and this case is set for trial on November 18, 2019. Wright states that it would be unreasonable to expect him to prepare for trial under the current scheduling order, and he asks the Court to continue the trial until at least April 2020.

         On October 8, 2019, the Court entered an opinion and order (Dkt. # 102) ruling on certain motions concerning pretrial discovery. Defendants Parchuri, Parks, and Lee argued that they could not fully prepare for trial under the current scheduling order, and they asked the Court to compel plaintiff to specifically identify what evidence it intends to use at trial. Dkt. ## 75, 76, 78. The Court denied defendants' motions to compel plaintiff to identify the evidence it will use at trial, and noted that it did not appear that the parties were prepared to proceed to trial in November 2019. Dkt. # 102, at 6. The Court directed all parties to file a response to Lee's motion to continue, no later than October 11, 2019. Plaintiff and defendants Keepers and Parks do not oppose Lee's request for a continuance. Dkt. ## 103, 104, 110. Parchuri opposes the motion to continue, and he has filed a motion to sever his trial from that of his co-defendants. Dkt. ## 106, 107. Parchuri has also filed a motion asking the Court to hold a pretrial hearing to determine the admissibility of co-conspirator statements, and he has filed a second motion requesting the immediate identification of possible Brady materials in light of the impending November 2019 trial. Dkt. ## 108, 111.

         A.

         Parchuri asks the Court to sever his trial from that of his co-defendants, because failure to do so will violate his right to a speedy trial if the Court grants Lee's motion to continue the jury trial. Dkt. # 107. Parchuri also argues that he has “markedly different alleged culpability for the conspiracies” alleged in the superseding indictment, and he claims that this will prevent the jury from making a “reliable” decision about his guilt or innocence. Id. at 1.

         Pursuant to Federal Rule of Criminal Procedure 14(a), a district court may sever the trials of codefendants joined in a single indictment if a joint trial would prejudice one or more of the defendants named in the indictment. “Joint trials of defendants who are indicted together are preferred, ” however, “because [t]hey promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.” United States v. Hall, 473 F.3d 1295, 1301-02 (10th Cir. 2007) (internal quotation omitted). If defendants have been properly joined in the same indictment, “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 v. United States, 506 U.S. at 534, 539 (1993). A court's decision to order severance is discretionary, and a defendant bears a “heavy burden of showing real prejudice to his case.” United States v. McConnell, 749 F.2d 1441, 1444 (10th Cir. 1984). Tenth Circuit precedent is clear that “ ‘[n]either a mere allegation that [the] defendant would have a better chance of acquittal in a separate trial, nor a complaint of the ‘spillover effect' [of damaging evidence], is sufficient to warrant severance.'” United States v. Edwards, 69 F.3d 419, 434 (10th Cir. 1995) (quoting United States v. Levine, 983 F.2d 165, 167 (10th Cir. 1992)).

         Parchuri is charged with conspiracy to commit an offense against the United States (count one), conspiracy to commit health care fraud (count twenty five), soliciting and receiving health care kickbacks (counts twenty six to thirty two), and obstructing an investigation into health care fraud (count thirty three). Parchuri is charged in two separate conspiracy counts, and the Tenth Circuit has recognized that there is a presumption “in a conspiracy trial that coconspirators charged together preferably should be tried together.” United States v. Pursley, 577 F.3d 1204, 1215 (10th Cir. 2009). Parchuri acknowledges that this presumption exists, but he argues that he will be prejudiced unless the Court severs his trial from that of his codefendants. Dkt. # 107.

         First, Parchuri claims that he has asserted his right to a speedy trial and severance would allow him to proceed to trial as currently scheduled on November 18, 2019. In certain cases, severance could be a remedy to allow one defendant to go to trial if his codefendants request a continuance. However, this is a conspiracy case and there is a presumption that coconspirators who have been charged together should be tried together. The Court also notes that Parchuri's attorney stated in a recent filing that it would be unreasonable to expect him to “provide constitutionally adequate representation” at a November 2019 trial based on the additional discovery that had not yet been produced by plaintiff, and he states in his motion to sever that this additional discovery has not yet been produced. Dkt. # 75, at 2-3; Dkt. # 107, at 2 n.1. Parchuri may wish to go to trial in November 2019, but his attorney has essentially admitted on the record that he is not currently prepared to adequately represent Parchuri at trial.[1] This significantly undercuts Parchuri's assertion of his right to a speedy trial, and the Court does not find that Parchuri's demand for a speedy trial is a compelling reason to sever his trial.

         Second, Parchuri argues that he had a limited role in the charged conspiracies, and he claims that he would be prejudiced if his trial is not severed from that of his co-defendants. Dkt. # 107, at 8-9. Count one of the superseding indictment charges defendants with creating a scheme to bill federal programs for expensive compounded drugs, and Parchuri allegedly received kickbacks for referring patients to pharmacies controlled by Parks and Lee. Dkt. # 48, at 8. Parchuri's role in the conspiracy allegedly lasted from June 2013 to January 2015, and count one lists monthly payments made to Parchuri during this time period. Id. at 17-18. Count twenty five of the superseding indictment charges defendants with conspiring to defraud federal health care programs and is based on similar facts as count one. Id. at 23-24. It is clear from the superseding indictment that Parchuri is not being accused of organizing the conspiracies or of having a leading role in execution of the conspiracies, but the conspiracies would not have functioned without physicians like Parchuri who referred clients to the pharmacies operated by Parks and Lee. Parchuri claims that a jury would not be able to make a “reliable” determination of his guilt or innocence in a joint trial, but a jury would necessarily have to consider evidence of the entire conspiracy in order to understand the charges against Parchuri. The Court does not find that there would be any substantial difference between a joint trial of all defendants and a trial against Parchuri alone in terms of the evidence that would be offered by plaintiff, and Parchuri has not shown that severance is necessary to ensure that the jury reaches a fair and impartial verdict as to Parchuri.

         The Court finds that Parchuri has not overcome the presumption that coconspirators should be tried together, and he has not shown that he will suffer any prejudice if he is tried jointly with the other defendants. Parchuri claims that severance is necessary to protect his right to a speedy trial, but he has not shown that his attorney is prepared to go to trial. Parchuri also argues that there is a risk that the jury will not be able to reach a reliable verdict in a joint trial, but plaintiff will have to put on essentially the same evidence in a trial against Parchuri to explain his role in the conspiracy. There is a strong preference to have a single trial of all defendants in a conspiracy case, and the Court finds no reason that Parchuri will be prejudiced if he is required to go to trial with his charged coconspirators.

         B.

         Parchuri asks the Court to hold a pretrial hearing to determine the admissibility of co-conspirator statements, and he requests that the Court compel plaintiff to identify all “unknown” conspirators referenced in the indictment. Dkt. # 108.

         Under Fed.R.Evid. 801(d)(2)(E), a statement is not considered hearsay if the court finds that “(1) a conspiracy existed; (2) both the declarant and the defendant against whom the declaration is offered were members of the conspiracy; and (3) the statement was made in the course of and in furtherance of the conspiracy.” United States v. Eads, 191 F.3d 1206, 1210 (10th Cir. 1999) (quoting United States v. Caro, 965 F.2d 1548, 1557 (10th Cir. 1992)). For Rule 801(d)(2)(E) to apply, the government must establish the existence of a conspiracy at some point in its case-in-chief, or the statements must be excluded. United States v. Kaatz, 705 F.2d 1237, 1244 (10th Cir. 1983). A court “can only admit coconspirator statements if it holds a James hearing [before trial] or conditions admission on forthcoming proof of a ‘predicate conspiracy through trial testimony or other evidence.'” United States v. Townley, 472 F.3d 1267, 1273 (10th Cir. 2007) (quoting United States v. Owens, 70 F.3d 1118 (10th Cir. 1995)). A district court may rely on the statements and observations of other coconspirators to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.