MOTION TO SEVER

AND INCORPORATED MEMORANDUM OF LAW

COMES NOW the defendant, * *, and moves this Honorable Court, pursuant to Rules 8A, and 14, of the Federal Rules of Criminal Procedure, to sever the charges contained in the indictment, for the following reasons:

1. Mr. * is charged in a 58 count indictment, the first 47 counts of which allege mail and medicaid fraud.

2. Counts 48 through 55 allege violations of the Tax Code, for failure to file an employer's quarterly tax return for a specified period of time.

3. Counts 57 and 58 allege violations of the Income Tax Code, for failure of Mr. * to file his personal tax returns, for the years 1990, and 1991.

4. The tax counts are totally unrelated to this action and will hopelessly prejudice the jury against Mr. *.

Mr. * is charged with mail and medicaid fraud, and the government alleges that he devised a scheme to defraud the United States Department of Health and Human Services in his dental practice. The government's case will consist of witnesses and other evidence that they will

present to try and establish that there was some type of conspiracy to defraud this agency, by virtue of billing for services allegedly not rendered, or not rendered by licensed personnel, and mailings in support of those efforts.

The allegation that Mr. *'s failed to file his employer's quarterly income tax returns, in violation of the rules of the Internal Revenue Service, has no rational relationship to the prior charges. The alleged failure of Mr. * to file his personal tax returns for a two year period also bears no relation to the prior charges.

The prejudicial impact of advising the jury that Mr. * has committed two additional law violations, as part of the government's medicaid fraud case, would be considerable. Additionally, disclosure of the amount of income earned by Mr. * during the period in controversy would also poison jurors against him, further guaranteeing that he will not receive a fair trial.

Under Rule 8 of the Federal Rules of Criminal Procedure two or more offenses may be charged in the same indictment or information if the charges are of the same or similar character, are based upon the same act or transaction, or on two or more acts or transactions connected together or constituting parts or a common scheme or plan. Joinder of parties and defendants under Rule 8 is designed to promote judicial economy and efficiency. United States v. Davis, 773 F.2d 1180 (llth Cir. 1985). It is the government's burden to show that the initial joinder is proper under rule 8. United States v. Davis, supra. But the question of whether the initial joinder is proper under Rule 8 is to be determined before trial by an examination by the trial court of the allegations stated on the face of the indictment. United States v. Weaver, 905 F.2d 1466 (llth Cir. 1990) United States v. Morales, 868 F.2d 1562 (llth Cir. 1989).

Going to the indictment, the government has clearly failed to meet this burden. Mr. * is charged with defrauding the United States Department of Health and Human Services. Failure to comply with the rules and regulations of the Internal Revenue Service is not an offense of the same or similar character. Further, the application cannot be described as being based upon the same acts or transactions, nor based upon some common scheme or plan. Clearly, under rule 8, the initial joinder of these offenses was erroneous.

Rule 14 provides that if it appears that a defendant is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the Court may order an election or separate trials, or provide whatever other relief justice requires. Rule 14 Federal Rules of Criminal Procedure. The case law suggests that improper joinder may be harmless unless it results in actual prejudice. United States v. Weaver, supra. In this cause, the jury is going to be called to determine whether based upon Mr. *'s business practices, established through the testimony of former clients and employees, he in fact defrauded the United States Department of Health and Human Services. The additional allegations, totally unrelated to the fraud charges, if presented to the jury, would "result in actual prejudice because it 'had substantial and injurious effect or influence in determining the jury's verdict." Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) The mere allegation of these other unrelated acts of criminal conduct would be sufficient to cause a jury to stray from the real issue in this case, which is whether in fact Mr. * defrauded Health and Human Services.

Finally, Mr. *'s right to testify on his own behalf would also be compromised. Depending on the development of the case, it might be advisable for Mr. * to testify in the tax case, but not the Fraud case. The improper joinder of the counts could prevent Mr. * from exercising this right in a meaningful fashion. United States v. Holloway, 1 F.3d 307 (5th Cir. 1993).

WHEREFORE, defendant hereby moves this Honorable Court to sever counts forty- eight through fifty- eight, or to grant a separate trial thereon.

Respectfully submitted,

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