United States District Court, W.D. Virginia, Roanoke Division
Elizabeth K. Dillon, United States District Judge.
April 19, 2018, Frank Purpera was charged in a
fifty-eight-count indictment with distribution of a
controlled substance (21 U.S.C. § 841) and witness
tampering (21 U.S.C. § 1512), alleged to have occurred
between June 2014 and January 2018. (No. 7:18-cr-00019, Dkt.
No. 1.) On February 7, 2019, in United States v.
Purpera, 7:19-cr-00016, Purpera was charged in a
two-count indictment with health care fraud (18 U.S.C. §
1347) and false statements relating to health care matters
(18 U.S.C. § 1035), alleged to have occurred between
February 2014 and January 2018. (No. 7:19-cr-00016, Dkt. No.
1.) Before the court are Purpera's motions to dismiss the
indictments for pre-indictment delay. (No. 7:18-cr-00019,
Dkt. No. 70; No. 7:19-cr-00016, Dkt. No. 17 [hereinafter Mot.
Dismiss Indictment].) The matter has been fully briefed, and
neither party requested a hearing on the motions. For the
reasons discussed herein, the court will deny Purpera's
motions to dismiss the indictments.
December 14, 2017, a grand jury returned an indictment
charging Purpera with sixty-seven counts of knowingly and
intentionally acquiring and obtaining controlled substances
by misrepresentation, fraud, forgery, deception, or
subterfuge in violation of 21 U.S.C. §§ 842. (No.
7:17-cr-00079, Dkt. No. 3.) Specifically, the government
charged that Purpera, a physician, made materially false
statements to a drug supplier by denying that he personally
used any of the controlled substances or used the controlled
substances in the treatment of his spouse, family, or
friends, and by falsely asserting that he administered the
controlled substances to his patients. The indictment also
included counts for omitting material information from a
report or record required to be made and kept to document
disposal of controlled substances pursuant to 21 U.S.C.
§ 843(a)(4)(A) and making materially false statements in
violation of 18 U.S.C. § 1001(a)(2). On February 1,
2018, a jury convicted Purpera on all counts. (No.
7:17-cr-00079, Dkt. No. 112.)
noted above, Purpera was charged in the present cases on
April 19, 2018, and February 7, 2019. On March 5, 2019, he
filed his motion to dismiss the indictment for pre-indictment
delay in No. 7:19-cr-00016. He filed his amended motion to
dismiss the indictment for pre-indictment delay in No.
7:18-cr-00019 on August 29, 2019. Specifically, Purpera
asserts that the current indictments involve the same
practice as that in the charges for which he has already been
convicted. He argues that the government had all the
information necessary to include the present charges in its
original indictments and that by delaying the charges until
the conclusion of his prior trial, the government put itself
at a tactical advantage in the present case. (Mot. Dismiss
Process Clause of the Fifth Amendment requires dismissal of
an indictment if pre-indictment delay caused substantial
prejudice to the defendant's rights to a fair trial and
the delay was an intentional device to gain a tactical
advantage over the accused. United States v. Marion,
404 U.S. 307, 324 (1971). The Fourth Circuit has set forth a
two-pronged inquiry to "evaluate a defendant's claim
that pre-indictment delay violated his right to due
process." United States v. Uribe-Rios, 558 F.3d
347, 358 (4th Cir. 2009). Under the first prong, the court is
to ask "whether the defendant has satisfied his burden
of proving 'actual prejudice.'" Id.
(quoting United States v. Automated Med. Labs.,
Inc., 770 F.2d 399, 403 (4th Cir. 1985)). If the
defendant satisfies his burden, the court next considers
"the government's reasons for the delay,
'balancing the prejudice to the defendant with the
Government's justification for delay.'"
Id. Then, the basic inquiry "becomes whether
the Government's action in prosecuting after substantial
delay violates 'fundamental conceptions of justice'
or 'the community's sense of fair play and
satisfy his burden with regard to actual prejudice, a
defendant must show "he was meaningfully impaired in his
ability to defend against the state's charges to such an
extent that the disposition of the criminal proceeding was
likely affected." United States v. Shealey, 641
F.3d 627, 634 (4th Cir. 2011). In Shealey, the court
observed that the appellant's theory of actual prejudice
was "circuitous and speculative" where he
hypothesized that "the Government delayed the
superseding indictment to provide more time to secure plea
agreements," which then "lessened the relative
strength of his own case." Id. The court
further stated that even if that theory constituted
prejudice, "it was not necessarily 'substantial'
since it at best strengthened the Government's case on
the margins, but did not 'meaningfully impair'
Appellant's own case." Id. (alteration in
asserts three ways he believes the pre-indictment delay
prejudiced his case: (1) by infringing on his right to
testify in his own defense; (2) by effectively imposing on
his right to choice of counsel; and (3) by inflating his
criminal history so that he faces a higher potential sentence
than he would have had the government brought the indictments
at the same time. (Mot. Dismiss Indictment 4-6.)
Right to testify
first argues that the pre-indictment delay hinders his right
to testify in his own defense. Because the government waited
until the conclusion of the trial in his first case, it can
now impeach him with the fact of his prior conviction.
(Id. at 4.)
a defendant "has no right to set forth to the jury all
the facts which tend in his favor without laying himself open
to a cross-examination upon those facts."
Fitzpatrick v. United States,178 U.S. 304, 315
(1900); see also Currier v. Virginia, 138 S.Ct.
2144, 2152 (2018) ("[L]itigants every day face difficult
decisions[Like] the defendant who must decide between
exercising his right to testify in his own defense or keeping
impeachment evidence ... from the jury."); Williams
v. Borg,139 F.3d 737, 740 (9th Cir. 1998) ("A
defendant with prior convictions must decide whether to take
the stand, thereby exposing himself to impeachment based on
his priors, or whether to forego his right to testify in his
own defense." (internal quotations omitted)). While
Purpera now faces the choice between testifying subject to
cross examination or forgoing his right to testify, that
alone does no substantially impair his ability to defend
himself any more than a prior conviction for any other
defendant. See United States v. Gregory, 322 F.3d
1157, 1165 (9th Cir. 2003) (finding that "the
possibility that the government might use prior convictions
for impeachment purposes" is not the ...