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UNITED STATES v. DILEO

July 20, 1994

UNITED STATES OF AMERICA,
v.
DOMINIC W. DILEO, Defendant.


SMITH


The opinion of the court was delivered by: D. BROOKS SMITH

SMITH, District J.

 I.

 Defendant Dominic W. DiLeo is charged with five counts of mail fraud and thirteen counts of distribution of a controlled substance. As to the former, the government alleges that defendant conspired with others to refer patients to Penn Medical Services, Inc. (Penn Medical), a Uniontown firm that rents, leases and sells durable medical equipment. DiLeo would allegedly provide Penn Medical with certificates of medical necessity and falsified medical records, enabling the firm to be paid by the Black Lung Program, a Medicare/Medicaid program established to facilitate the rental or lease of durable medical equipment such as oxygen and respiratory machines. In exchange for the referrals, defendant allegedly solicited and received from Penn Medical cash kickbacks and in kind remuneration, which he used in connection with clandestine, adulterous relationships he was having with unnamed women. With regard to the drug counts, the government alleges that DiLeo unlawfully distributed oxycodone, a Schedule II narcotic drug controlled substance, in the form of Percocet tablets, to various members of Uniontown's England family.

 This matter is currently before the Court on defendant's Motion to Adopt Pretrial Motions (Docket No. 34), Motion for Severance (Docket No. 17) and Motion to Continue Trial (Docket No. 44).

 II.

 A. Motion to Adopt Pretrial Motions

 Defendant's uncontested motion to adopt pretrial motions prepared and filed by his prior counsel shall be granted.

 B. Motion for Severance

 Defendant contends that the government's indictment misjoins the drug and mail fraud counts, in violation of Fed.R.Crim.P. 8(a). DiLeo argues that no member of the England family had any connection with Penn Medical, and that the prescriptions referred to in counts six through eighteen were not "based on the same act or transaction" as the mail fraud counts, "do not constitute parts of a common scheme or plan" as the alleged scheme involving Penn Medical, and that the two sets of counts do not share the same or similar character. Motion for Severance at P 5.

 The government argues in opposition to defendant's motion that the drug and mail fraud charges are sufficiently related as to be part of the same plan. Furthermore, the government contends, the counts share an overlap of evidence, that is, "a commonality of motive underlying the criminal conduct of the defendant, and a central theme of misuse and abuse of the powers and responsibilities attendant to medical doctors." Opposition to Defendant's Motion for Severance at 3. That common motive, according to the United States, was a desire "to assist and promote his extra marital relationships and to hide these affairs from his wife, and to further hide his other and simultaneous affairs from each of his many 'girlfriends' and mistresses so that none would know that he was having an affair with anyone else." Id.

 Severance under Fed.R.Crim.P. 14 because joinder is unfairly prejudicial is a matter committed to the discretion of the trial court. United States. v. Eufrasio, 935 F.2d 553, 568 (3d Cir.), cert. denied sub nom. Idone v. United States, U.S. , 112 S. Ct. 340, 116 L. Ed. 2d 280 (1991). Where offenses have been improperly joined in the indictment, *fn1" severance is required "as a of matter of course without regard to the merits of defendant's claims of prejudice under Rule 14." United States v. Winchester, 407 F. Supp. 261, 264-65 (D.Del. 1975). However, the trial court's refusal to sever misjoined offenses is subject to harmless error review, and will be reversed only if the defendant can prove actual prejudice. See United States v. McGill, 964 F.2d 222, 241 (3d Cir. 1992), cert. denied, U.S. , 113 S. Ct. 664, 121 L. Ed. 2d 588 (1992) (citing United States v. Lane, 474 U.S. 438, 88 L. Ed. 2d 814, 106 S. Ct. 725 (1986)).

 Federal Rule of Criminal Procedure 8(a) provides:

 
Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or ...

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