United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT JUDGE
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
opinion, the Court addresses two of the currently pending
motions: Defendant Glenn Doyle Beach, Jr.'s Motion to
Sever  his trial from that of Defendants Hope Evangulane
Thomley and Howard Randall Thomley, and the Thomleys'
Joint Motion to Continue  the trial of this matter. For
the reasons provided below, the Court denies
Beach's Motion to Sever  and grants
the Thomleys' Joint Motion to Continue .
Motion to Sever 
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. The Court will address this issue below,
in its discussion of the Thomleys' Joint Motion to
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).
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)).
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)).
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.
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.
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  - the Court
denies Defendant Beach's Motion to Sever
Joint Motion to Continue  
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.
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 ...