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. Thomley

United States District Court, S.D. Mississippi, Eastern Division

August 13, 2018

UNITED STATES OF AMERICA,
v.
HOPE EVANGULANE THOMLEY, et al.

          MEMORANDUM OPINION AND ORDER

          KEITH STARRETT UNITED STATES DISTRICT JUDGE

         Defendants were indicted on multiple counts: conspiracy to commit wire fraud; conspiracy to defraud TRICARE; defrauding TRICARE; conspiring to dispense a controlled substance outside the scope of professional practice and not for a legitimate medical purpose; dispensing a controlled substance outside the scope of professional practice and not for a legitimate medical purpose; conspiracy to solicit and receive kickbacks/bribes in exchange for referring individuals to make TRICARE claims; conspiracy to offer and pay kickbacks/bribes in exchange for referring individuals to make TRICARE claims; soliciting, receiving, offering, and/or paying kickbacks/bribes in exchange for referring individuals to make TRICARE claims; conspiracy to obstruct a federal investigation; conspiracy to commit money laundering; and money laundering.

         In this opinion, the Court addresses two of the currently pending motions: Defendant Glenn Doyle Beach, Jr.'s Motion to Sever [79] his trial from that of Defendants Hope Evangulane Thomley and Howard Randall Thomley, and the Thomleys' Joint Motion to Continue [75] the trial of this matter. For the reasons provided below, the Court denies Beach's Motion to Sever [79] and grants the Thomleys' Joint Motion to Continue [75].

         A. Motion to Sever [79]

         Beach presents two arguments in favor of severance. First, he argues that a joint trial with the Thomleys would violate his speedy trial rights under the Sixth Amendment and the Speedy Trial Act.[1] The Court will address this issue below, in its discussion of the Thomleys' Joint Motion to Continue [79].

         Next, Beach argues that a joint trial with his alleged co-conspirators would be unfairly prejudicial. Rule 14 provides: “If the joinder of offenses or defendants in an indictment . . . appears to prejudice a defendant . . ., the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires.” Fed. R. Crim. P. 14(a). To prevail on a motion to sever pursuant to Rule 14(a), a defendant “must overcome significant obstacles.” United States v. McRae, 702 F.3d 806, 821 (5th Cir. 2012). “The federal judicial system evinces a preference for joint trials of defendants who are indicted together because joint trials ‘promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.'” Id. (quoting Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993)); see also United States v. Chapman, 851 F.3d 363, 379 (5th Cir. 2017). Therefore, “[t]he rule, rather than the exception, is that persons indicted together should be tried together, especially in conspiracy cases.” United States v. Pofahl, 990 F.2d 1456, 1483 (5th Cir. 1993).

         “Severance is proper 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.” McRae, 702 F.3d at 822-23 (quoting United States v. Mitchell, 484 F.3d 762, 775 (5th Cir. 2007)). Moreover, “Rule 14 does not require severance even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district court's sound discretion.” Chapman, 851 F.3d at 379. “Giving limiting instructions to the jury is ‘generally sufficient to prevent the threat of prejudice resulting from unsevered trials.'” Id. (quoting United States v. Whitfield, 590 F.3d 325, 356 (5th Cir. 2009)). “[I]t is ‘generally presumed that juries follow the instructions given to them by the district court' and are capable of ‘compartmentalizing the evidence against each defendant.'” United States v. Ledezma-Cepeda, 894 F.3d 686, 690 (5th Cir. 2018) (quoting United States v. Tarango, 396 F.3d 666, 677 (5th Cir. 2005)).

         Beach first argues that he would be prejudiced by a joint trial because of the association with the evidence and allegations against the Thomleys. In other words, he contends that he would be prejudiced by the “spillover effect” of being jointly tried with the Thomleys. But “[m]erely alleging a ‘spillover effect' - whereby the jury imputes the defendant's guilt based on evidence presented against his co-defendants - ‘is an insufficient predicate for a motion to sever.'” Chapman, 851 F.3d at 379-80 (quoting United States v. Snarr, 704 F.3d 368, 397 (5th Cir. 2013)). As noted above, the Court assumes that jurors follow the Court's instructions, and that they are capable of compartmentalizing the allegations and evidence as to each defendant. Ledezma-Cepeda, 894 F.3d at 690. And even if the Government has a stronger case against the Thomleys, “[s]everance is required on the basis of disparity in the evidence only in the most extreme cases.” Chapman, 851 F.3d at 380 (quoting United States v. Owens, 683 F.3d 93, 100 (5th Cir. 2012)).

         Beach has not demonstrated to the Court's satisfaction that there exists a sufficient disparity in the allegations or evidence to merit severance from his alleged co-conspirators. The indictment focuses on the operations of Advantage Pharmacy and Total Care Marketing. All three Defendants - Beach, Hope Thomley, and Randy Thomley - owned a piece of both businesses. The Government alleges that Beach participated in formulating and producing compounded medications that would get high reimbursements from Tricare, without any consideration of the medication's efficacy. Indictment at 10, United States v. Thomley, No. 2:18-CR-18-KS-MTP (S.D.Miss. May 15, 2018), ECF No. 3. Beach allegedly directed employees to “run ‘test' or ‘dummy' claims with health care benefit programs in order to determine how much health care benefit programs would reimburse for the formulas.” Id. In other words, the Government contends that Beach directed employees to “submit a fake claim on behalf of a real patient - using that patient's actual personal identifying information - and then reverse it once the pharmacy learned how much the target health care benefit program would pay for the specific formula.” Id. If the targeted health care benefit program did not reimburse at a high enough rate, Beach would “vary the ingredients and would provide the patient with a different [formula] that was covered, and bill the substitute formula instead, ” in an effort to maximize the funds received from Tricare. Id.

         Beach also allegedly directed employees to “include and hand-write more ingredients than necessary in compounded medications for the purpose of increasing reimbursement rates . . . .” Id. at 11. He also allegedly “devised a way for Advantage Pharmacy to waive and reduce the copayments for the beneficiaries, including TRICARE beneficiaries, while making it appear to health care benefit programs . . . that the copayments were being collected, ” to avoid the possibility of patients refusing the phony medications when billed for a copayment. Id. at 13. Finally, the Government alleges that Beach signed a contract with Hope Thomley, “whereby Advantage Pharmacy agreed to pay Total Care Marketing remuneration in exchange for referring prescriptions, including for Tricare beneficiaries, to be filled at Advantage Pharmacy.” Id. at 18.

         In summary, the charges against Beach are intricately connected with the charges against the Thomleys - as one would expect in a conspiracy case. If the Court were to sever Beach, it would end up trying two virtually identical cases twice within a relatively short period of time. The Court's instructions will be sufficient to remedy whatever slight prejudice may accrue to Beach from being tried with his alleged co-conspirators. Therefore, for all these reasons - and those provided below in the Court's discussion of the Thomleys' Joint Motion to Continue [75] - the Court denies Defendant Beach's Motion to Sever [79].

         B. Joint Motion to Continue [75] [2]

         Anticipating that the trial of this matter could be lengthy, the Court convened a teleconference with the attorneys of record on July 20, 2018, to discuss scheduling. See Transcript of Teleconference Proceedings, United States v. Thomley, No. 2:18-CR-18-KS-MTP (S.D.Miss. Aug. 10, 2018), ECF No. 91. The consensus among the attorneys was that the trial would last four to five weeks. Id. at 5-8. Each Defendant's counsel asserted that they could not be ready for trial by the initial August 20 trial term because of the volume of documents produced and yet to be produced by the Government. Id. at 8-10. The Government did not oppose a continuance. Id. at 8-9.

         First, the Court proposed that the trial start on September 4, 2018. Id. at 9. Each Defendant's attorney responded that would not be a sufficient continuance. Id. at 9-10. The Court then proposed that the trial start on November 26, 2018, and run through most of December. Id. at 10-11. Beach's counsel expressed a preference for an earlier date and suggested that he would be filing a motion to sever. Id. at 11-12. The Thomleys' attorneys indicated that November 26 would work for them. I ...


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.