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United States v. Purpera

United States District Court, W.D. Virginia, Roanoke Division

November 8, 2019



          Elizabeth K. Dillon, United States District Judge.

         On 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].)[1] 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.

         I. BACKGROUND

         On December 14, 2017, a grand jury returned an indictment charging Purpera with sixty-seven[2] 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.[3] (No. 7:17-cr-00079, Dkt. No. 112.)

         As 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.[4] 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 Indictment 2-3.)


         The Due 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 decency.'" Id.

         A. Actual Prejudice

         To 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 original).

         Purpera 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.)

         1. Right to testify

         Purpera 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.)

         However, 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 ...

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