United States District Court, E.D. Wisconsin
ADELMAN DISTRICT JUDGE
government obtained a 24-count indictment charging defendants
Steven Kotsonis and Susan Moyer with controlled substance
offenses. Count one alleges that, beginning in at least 2012
and continuing until 2013, Kotsonis, a medical doctor, and
Moyer, the office manager of the medical clinic the
defendants co-owned, conspired to dispense controlled
substances, including Oxycodone, outside of professional
medical practice and not for legitimate medical purposes.
Counts 2-21 allege that on specific dates between November
27, 2012, and April 16, 2013, Kotsonis (aided and abetted by
Moyer as to counts 3, 4, and 17-20) unlawfully issued
prescriptions. The parties refer to these counts as the
“pill mill” or “prescription” counts.
Counts 22-24 allege that on three occasions between February
21, 2014, and April 23, 2014, after the clinic had closed,
Moyer distributed Oxycodone. The parties refer to these
offenses as the “street sale” or
moved to sever the pill mill counts from the street sale
counts, arguing improper joinder under Fed. R. Crim. P. 8; in
the alternative, she sought relief from prejudicial joinder
under Fed. R. Crim. P. 14. The magistrate judge handling
pre-trial proceedings in this case found the counts properly
joined under Rule 8(a), as they were “of the same or
similar character.” See United States v.
Turner, 93 F.3d 276, 283-84 (7th Cir. 1996);
United States v. Walls, 80 F.3d 238, 243
(7th Cir. 1996); United States v.
Coleman, 22 F.3d 126, 131 (7th Cir. 1994).
However, he accepted Moyer's argument that she would be
prejudiced by a joint trial, explaining:
Although evidence of the prescription conspiracy may be
admissible in a separate trial on the pill sales to
demonstrate, for example, opportunity, the opposite does not
appear to be true. That is, it appears that evidence of the
pill sales would not serve any permissible purpose in a
separate trial regarding the prescription counts, and the
government has not explained how the pill-count evidence
might somehow be admissible under Fed.R.Evid. 404(b).
Consequently, it is highly likely that a jury hearing all
counts together would infer guilt based on impermissible
This potential source of unfair prejudice is apparent when
one considers the evidence to be presented at trial. Ms.
Moyer acknowledges that she likely does not have a viable
defense to the pill charges; those counts involve controlled
transactions in which Ms. Moyer, while being recorded, sold
Oxycodone pills. With respect to the other counts, however,
Ms. Moyer's culpability depends on her knowledge and
actions in furtherance of the prescription conspiracy.
Learning that she sold opiate pills to former patients after
the clinic closed would therefore unfairly influence the jury
and likely could not be cured by any limiting instruction.
Furthermore, the risk of unfair prejudice to Ms. Moyer
substantially outweighs the efficiency created by a joint
trial in this case. The only overlapping evidence propounded
by the government relates to a single purchaser of the pills
allegedly sold in Counts Twenty-Two and Twenty-Three. That
severance might impose a slight burden on a single witness is
insufficient to justify a joint trial where the risk of
unfair prejudice is high.
(R. 38 at 8-9, internal footnote and record citations
government objects to the magistrate judge's ruling.
Because this is a non-dispositive matter, I may set the order
aside only if it “is contrary to law or clearly
erroneous.” Fed. R. Crim. P. 59(a). “The clear
error standard means that the district court can overturn the
magistrate judge's ruling only if the district court is
left with the definite and firm conviction that a mistake has
been made.” Weeks v. Samsung Heavy Indus. Co.,
126 F.3d 926. 943 (7th Cir. 1997).
Zafiro v. United States, 506 U.S. 534 (1993) and
United States v. Lane, 474 U.S. 438 (1986), the
government argues that the magistrate judge failed to
identify a sufficiently serious risk of prejudice from a
joint trial. The government contends that a properly
instructed jury could sort through the evidence applicable to
each group of counts, and that defendant's argument is
essentially that she would have a better chance of acquittal
on the pill mill counts if the jury does not hear about the
street sale counts.
the government does not challenge the magistrate judge's
observation that evidence of the street sales would not,
under Rule 404(b), be admissible at a separate trial on the
pill mill counts. As the Seventh Circuit has explained,
where, as here,
offenses are joined because of their same or similar
character, the risk of unnecessary unfairness infiltrating
the joint trial is elevated. Unlike instances of joinder of
offenses based on the same or closely connected acts or
transactions, there is no comparable saving of trial time
when offenses that are related only by being of the same type
are joined, since the offenses are usually proven by
different bodies of evidence [and], when totally unrelated,
similar offenses are joined, defendant faces a considerable
risk of prejudice. In such cases, the district courts should
be especially watchful for possible jury confusion,
illegitimate cumulation of evidence or other sources of
prejudice not worth the reduced efficiency gains of a joint
Coleman, 22 F.3d at 134 (internal quote marks and
citations omitted); see also United States v.
Jenkins, 884 F.Supp.2d 789, 791 (E.D. Wis. 2012) (noting
that while the “same or similar character” prong
is the broadest of the possible bases for joinder, it is the
one least likely to serve the purposes of joinder and risks
prejudice when evidence would not be admissible at separate
trials under Rule 404(b)); United States v.
Kaquatosh, 227 F.Supp.2d 1045, 1048 (E.D. Wis. 2002)
(noting that when offenses are so joined the danger of
prejudice to the defendant is increased, as the jury may
infer criminal proclivity based on the charging of multiple
offenses); cf. United States v. Hardin, 209 F.3d
652, 664 (7th Cir. 2000) (“The classic
situations where failure to sever may be prejudicial involve
the admission of damaging evidence at a joint trial that
would be inadmissible if the defendant were being tried alone
or the exclusion at a joint trial of exculpatory evidence
that would be available if the defendant were being tried
solo.”), vacated on other grounds, 531 U.S.
magistrate judge did not grant severance based on the
relative strength of the evidence on the two groups of
counts; nor did he suggest that substantive counts cannot be
joined with a conspiracy count. Rather, he focused on the
fact that, aside from one witness, a former patient of the
clinic, there is no apparent connection between the two
groups of counts in this case. While the Rules favor joint
trials, particularly in the case of a conspiracy, the
government does not allege that Kotsonis conspired with Moyer
or was otherwise involved in the street sale counts. The
magistrate judge further noted the difficulty a jury would
have in fairly evaluating Moyer's role in operating the
“pill mill” when faced with evidence of street