U.S. v. Dunne
| Decision Date | 14 March 2001 |
| Docket Number | No. 98-CR-278 ST.,98-CR-278 ST. |
| Parties | UNITED STATES OF AMERICA, Plaintiff(s), v. Terrence DUNNE, et al., Defendant(s). |
| Court | U.S. District Court — District of Utah |
Stephen J. Sorenson, Stewart C. Walz, Leslie Hendrickson-Hughes, United States Attorneys Office, Salt Lake City, UT, for plaintiff.
Paul T. Moxley, Catherine L. Brabson, Christine T. Greenwood, Holme Roberts & Owen, Salt Lake City, UT, for defendant.
Defendant, Terrence Dunne, has made a motion to sever the one count against him from the counts against the other two defendants. This would require two separate trials. Dunne is charged in Count V of the superseding indictment with a violation of 18 U.S.C. § 1001. No other defendant is charged in that count (File Entry # 26). Count V alleges, by incorporation, paragraphs 1 through 3 of Count I of the indictment; paragraphs 1 through 7 of Count III of the superseding indictment and paragraph 1 through 7 of Count IV of the superseding indictment. The indictment alleges Dunne, as a certified public accountant, audited and prepared the financial statements included in Pan World Minerals International, Inc.'s annual report. Dunne signed an audit opinion for the financial statement of Pan World and stated the audit was in accordance with generally accepted auditing standards (GAAS) and that the financial statements were prepared with generally accepted accounting principles (GAAP). The indictment alleges Dunne knew from a contract that Pan World had no interest in a company known as Washington Gulch and knew the financial statements were not presented in accord with GAAP. It is also alleged Dunne did not satisfy generally accepted auditing standards (GAAS). Also, it is alleged that Dunne's certification was made within the jurisdiction of the Securities and Exchange Commission (SEC) for purposes of 18 USC § 1001.
Pertinent to the issue involved with this motion, are the allegations in paragraphs 1 through 7 of Count III of the superseding indictment, which assert an agreement was signed by other of the named defendants to acquire a mining project known as Washington Gulch. No closing occurred on the agreement and no assets of Washington Gulch passed to Pan World. Paragraph 4 of Count III indicates a document relevant to the Washington Gulch matter was not shown to Dunne by the other defendants. Dunne prepared the financial statements of Pan World which were given to the SEC (Form 10-Q). The financial statements listed for the SEC Form 10-Q, the Washington Gulch property as an asset of Pan World.
Paragraphs 1 through 7 of Count IV of the superseding indictment, allege that at the end of the calendar year 1993, Pan World was required to obtain audited financial statements for its 1993 annual report and a Form 10-KSB filed with the SEC. Paragraph 6 of Count IV alleges Pan World's 1993 annual report referred to the Washington Gulch interest and in fact that interest had never been acquired by Pan-World (¶ 7).
Defendant Dunne's motion to sever Count V, naming only him, contends the count is misjoined. At hearing, Dunne contended there was no basis to join him, with the other charged parties, under Rule 8(b) F.R.Cr.P. It is contended Dunne's acts or transaction of preparing the financial statements and doing the audit of Pan World were separate from the act or the transaction or series of acts and transactions of the other defendants as alleged and joined in other counts. See Rule 8(b) F.R.Cr.P. It is also asserted that the indictment has not "alleged" that Dunne's conduct was a part of an act, transaction or series of acts or transactions with the other parties. Of course, the fact that Dunne is named in only one count is not fatal to joinder since Rule 8(b) provides "such defendants may be charged in one or more counts together or separately and all defendants need not be charged in each count." (Emphasis added).
The Government contends that a reading of the indictment, in full and with the enumerated paragraphs incorporated into Count V against Dunne, that it is apparent Dunne's audit and preparation of financial statements were integral to the documentation submitted by Pan World to the SEC and a part of the transaction or series of transactions engaged in by the other defendants involving illegal activities in connection with Pan World.
Count V does not use the specific language of Rule 8(b) F.R.Cr.P. Rule 8(b) requires that it be "alleged" that two or more defendants participated in the same act or transaction or series of acts or transactions. In, United States v. Valdez, 149 F.R.D. 223 (D.Utah, 1993) this court said joinder of defendants from different counts is not proper "unless they are `alleged' to have participated in the same act or transaction." The issue on misjoinder raised by defendant Dunne is as to joined parties and falls under Rule 8(b) F.R.Cr. P., see United States v. Riebold, 557 F.2d 697, 707 (10th Cir., 1977), ("series of acts or transactions ... may be basis for joinder"). A conspiracy need not be alleged. Valdez, p. 222. "However, the indictment must contain allegations showing the propriety of the joinder" (citing cases). Id. In Valdez, the court found the indictment did not meet Rule 8(b) standards but referred to a "common thread which would suffice" under the decision in United States v. Rogers, 921 F.2d 975 (10th Cir., 1990).
In United States v. Garganese, 156 F.R.D. 263 (D.Utah, 1994), the court reapproved Valdez. The Court spoke on the applicable standard for joinder:
Rule 8(b) F.R.Cr.P. governs the joinder of charges when multiple defendants are involved. United States v. Riebold, 557 F.2d 697, 707 (10th Cir.1977); United States v. Eagleston, 417 F.2d 11 (10th Cir.1969); United States v. Jackson, 562 F.2d 789 (D.C.Cir.1977); United States v. Corbin, 734 F.2d 643 (11th Cir.1984); United States v. Valdez, 149 F.R.D. 223 (D.Utah 1993). The question of misjoinder is a question of law for the court, United States v. Cardall, 885 F.2d 656, 667 (10th Cir.1989). Under Rule 8(b) F.R.Cr.P. joinder of defendants is proper "if they are alleged to have participated in the same act or transaction or the same series of acts or transactions constituting an offense or offenses"; United States v. McClure, 734 F.2d 484 (10th Cir.1984). All the defendants need not be charged in each count, but the rule seems to contemplate that at least one defendant should be charged in a count where other defendants are also charged. Defendants North American and Garganese are not charged in counts 1-105. They are not charged in the conspiracy in count one which would have justified the joinder. United States v. Jorgenson, 451 F.2d 516, 522 (10th Cir.1971); United States v. Heath, 580 F.2d 1011 (10th Cir.1978); United States v. Dickey, 736 F.2d 571 (10th Cir.1984). In counts 106-115 only defendants Robert Garganese and North American are charged. Although Y.E.S.S. Co. is named, it is not charged or named as a conspirator. None of the other defendants are charged in counts 106-122. In counts 116-122 only Garganese and North American are charged, no other defendant is charged and only Y.E.S.S. Co. is mentioned. Neither Garganese or North American is named in counts 123-129. They do not involve the movants.
The issue is whether there is sufficient factual connection pled between Garganese and North American and the other defendants in the indictment to show a participation in the same act or transaction or the same series of acts or transactions "constituting an offense or offenses."
Where there is a general interrelationship of the offenses, joinder is proper. United States v. Jones, 578 F.2d 1332 (10th Cir.1978). If defendants have engaged in the same act or series of acts constituting an offense or offenses, joinder is proper. United States v. Krohn, 573 F.2d 1382 (10th Cir.1978). In United States v. Cardall, supra, the court referred to an "ongoing series of interconnected illegal transactions amounting to the operation of a criminal enterprise." 885 F.2d at p. 668. It has been said that joinder is proper where the conduct of the joined defendants is "hand in glove" with each other. United States v. Beathune, 527 F.2d 696 (10th Cir.1975); United States v. Rogers, 652 F.2d 972 (10th Cir.1981). If the conduct is part of one overall conspiracy, joinder is proper, United States v. Bridwell, 583 F.2d 1135 (10th Cir.1978), even if the conduct of the participants was varied. United States v. Petersen, 611 F.2d 1313, 1331 (10th Cir.1979). There must be a logical relationship between the offenses, a commonality must be involved. It has been said the "litmus test" for joinder under Rule 8(b) F.R.Cr.P. is whether a "common thread" links acts to each other and some of the defendants.
(***)
Federal courts have stated the standard for joinder under Rule 8(b) F.R.Cr.P. in several different ways but have required a common nexus. Annotation, "What Constitutes Series of Acts or Transactions" for Purposes of Rule 8(b) of Federal Rules of Criminal Procedure, Providing for Joinder of Defendants Who Are Alleged to Have Participated in Same Series of Acts or Transactions, 62 ALR Fed. 106 (1983). "Joint Criminal Enterprise" is a term that has been used, United States v. Martinez, 479 F.2d 824 (1st Cir.1973); "Substantial identity of facts and participants," United States v. Olin Corp., 465 F.Supp. 1120 (W.D.N.Y.1979); "common scheme," Rakes v. United States, 169 F.2d 739 (4th Cir.1948); "common plan", United States v. Kennedy, 564 F.2d 1329 (9th Cir.1977); "common link," United States v. DeLeon, 641 F.2d 330, 337 (5th Cir.1981). It has been stated that joinder is proper where facts underlying "each offense" are "closely related" so that proof of the facts is necessary to establish each offense.
In United States v. Eagleston, 417 F.2d 11 (10th Cir., 1969) the court found...
To continue reading
Request your trial
-
U.S. v. Hartsock, CR. 02-60-B-S.
... ... Finally, there is no evidence as to Akins' background and conduct that would allow us to conclude that the waiver of counsel was knowing and intelligent despite these deficiencies ... Id. at 1149. Distinguishing ... ...
-
United States v. Hartsock, Crim. No. 02-60-B-S (D. Me. 1/31/2003), Crim. No. 02-60-B-S.
... ... Finally, there is no evidence as to Akins' background and conduct that would allow us to conclude that the waiver of counsel was knowing and intelligent despite these deficiencies ... Id. at 1149. Distinguishing its ... ...
-
United States v. Baver
... ... Dunne, 134 F.Supp.2d 1231, 1235 (D. Utah 2001) ... (citing United States v. Jones, 578 F.2d 1332 (10th ... Cir. 1978)). This does not mean that ... ...