U.S. v. Rucker

Decision Date11 January 1999
Docket NumberNo. 97-CR-1146 (ILG).,97-CR-1146 (ILG).
Citation32 F.Supp.2d 545
PartiesUNITED STATES of America, Plaintiff, v. Timothy RUCKER, et al., Defendants.
CourtU.S. District Court — Eastern District of New York

Kelly Moore, Assistant U.S. Attorney, Brooklyn, NY.

Ira D. London, New York City.

Frank Geoly, Brooklyn, NY.

Donna Newman, New York City.

Steven Bernstein, New York City.

Joel Walter, Brooklyn, NY.

Charles Hochbaum, Hochbaum & Weiss, Garden City, NY.

Roger Bernstein, New York City.

Bernard Udell, Brooklyn, NY.

Lloyd Epstein, New York City.

Anthony L. Ricco, Ricco & Villavueva, New York City.

MEMORANDUM AND ORDER

GLASSER, District Judge.

A plethora of motions have been made by one or more of the defendants named, some of which have been decided from the bench following a hearing, and some of which as yet remain undecided and will be addressed now.

I. Motions for Severance

Eight defendants, Hutchinson, Williams, Johnson, Kearse, Cumberbatch, Arroyo, Straight and Nix, have moved this court for an order that would sever the trial of each of them from that of the others. The common thread running through the motions is that each would be prejudiced by the spillover of evidence admissible as to some, but not as to others. Rucker has moved to be severed from Arroyo or, in the alternative, to suppress statements made by Arroyo. Since those statements have been suppressed following a hearing, Rucker's motion is moot.

Ten defendants in all are named in a 22 count indictment in which all are named as members and associates of a criminal organization known as the "C.I.C./Caveman" (the "enterprise") engaged in various forms of criminal activity including murder, attempted murder, assault, robbery, racketeering, racketeering conspiracy, and using and carrying a firearm in aid of a violent crime.

Multiple defendants may be properly joined if the requirements of Rules 8(b) and 14 of the Federal Rules of Criminal Procedure are satisfied. Rule 8(b) provides that two or more defendants may be charged in the same indictment "if they are alleged to have participated ... in the same series of acts or transactions constituting an offense or offenses." Once Rule 8(b) has been satisfied, the issue of severance is then determined by reference to Rule 14.

In Zafiro v. United States, 506 U.S. 534, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) the Supreme Court reaffirmed the preference for joint trials of defendants who are indicted together, a preference expressed many times before. See, e.g., Richardson v. Marsh, 481 U.S. 200, 209, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). The liberal rule of joinder is designed to promote efficiency and "serve[s] the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." Id. at 210, 107 S.Ct. 1702. Joint trials, in addition, limit inconveniences to witnesses, avoid delays in bringing defendants to trial and permit the entire story to be presented to a single jury. See, e.g., United States v. Stillo, 57 F.3d 553, 556-57 (7th Cir.), cert. denied, 516 U.S. 945, 116 S.Ct. 383, 133 L.Ed.2d 306 (1995). The requirement of the Rule that the defendants are alleged to "have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses" must be read to mean that the acts must be "unified by some substantial identity of facts or participants" or "arise out of a common plan or scheme." United States v Attanasio, 870 F.2d 809, 815 (2d Cir.1989) (quoting United States v. Porter, 821 F.2d 968, 972 (4th Cir.1987), cert. denied, 485 U.S. 934, 108 S.Ct. 1108, 99 L.Ed.2d 269 (1988)). Proper joinder is determined from the face of the indictment which quite plainly here, satisfies the Rule 8(b) requirement that the acts are unified by the substantial identity of the participants and arise out of the objectives sought to be accomplished by the enterprise with which all the defendants are alleged to be associated. The fact that not every defendant is charged in every count is not dispositive. Participation in a series of transactions does not require participation in every transaction. United States v. Teitler, 802 F.2d 606, 615 (2d Cir.1986).

Rule 8(b) having been satisfied, we turn to Rule 14 which provides, in relevant part, that "If it appears that a defendant ... is prejudiced by joinder of ... defendants ... for trial together, the court may order ... separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires." The Advisory Committee Notes instruct and the courts have uniformly held that severance and other similar relief rests entirely in the discretion of the court. See, e.g., United States v. Losada, 674 F.2d 167 (2d Cir.1982); United States v. Lasanta, 978 F.2d 1300, 1306 (2d Cir.1992). The preference in the federal system for joint trials and the role they play in the criminal justice system has already been noted and to a significant extent informs the discretion to be exercised.

Zafiro acknowledged that a "district court should grant a severance ... only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. Such a risk might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a co-defendant.... When many defendants are tried together in a complex case and they have markedly different degrees of culpability, this risk of prejudice is heightened." 506 U.S. at 539, 113 S.Ct. 933. The Court went on to observe, however, that less drastic measures than severance, such as limiting instructions, will frequently cure any risk of prejudice and that it was well settled that "defendants are not entitled to severance merely because they have a better chance of acquittal in separate trials." 506 U.S. at 539-40, 113 S.Ct. 933. The Courts have had many occasions to apply and in the process amplify the broad statement of principles in Zafiro. In United States v. Rosa, 11 F.3d 315 (2d Cir.1993), cert. denied, 511 U.S. 1042, 114 S.Ct. 1565, 128 L.Ed.2d 211 (1994) for example, the Court explained that "A defendant's right to a fair trial does not include the right to exclude relevant and competent evidence. Thus, the fact that testimony against a co-defendant may be harmful is not a ground for severance if that testimony would also be admissible against the moving defendant tried separately." 11 F.3d at 341. Neither is it a ground for severance that a defendant is named in fewer counts than his co-defendants. See, e.g., United States v. Chang An-Lo, 851 F.2d 547, 556-57 (2d Cir.1988), cert. denied, 488 U.S. 966, 109 S.Ct. 493, 102 L.Ed.2d 530 (1988) ("differing levels of culpability and proof are inevitable in any multi-defendant trial and standing alone are insufficient grounds for separate trials."); United States v. Harris, 908 F.2d 728 (11th Cir.1990), cert. denied, 498 U.S. 1093, 111 S.Ct. 979, 112 L.Ed.2d 1063 (1991).

As has been noted, each of the defendants moving for a severance is alleged to be a member and associate of the enterprise and not all of them are named in each of the 22 counts. Some are charged more frequently than others but that difference does not preclude charging and trying them jointly. See, e.g., United States v. Locascio, 6 F.3d 924 (2d Cir.1993). Their assertions that a severance is warranted because much evidence will be received against co-defendants which will not be relevant to the crimes with which the movants are charged are not persuasive. That circumstance does not warrant granting the relief sought. "We recognize" said the Court, that "these appellants may have suffered some prejudice when they were forced to sit ... for over a month without any evidence being introduced concerning their activities. Nonetheless, a disproportionate introduction of evidence relating to joined defendants does not require a severance in every case." United States v. Cardascia, 951 F.2d 474, 483 (2d Cir.1991).

The movants have failed to sustain the burden they must bear of demonstrating that they will be so severely prejudiced by a joint trial that they would be deprived of a fair trial and their severance motions are denied.

II. The Bruton Motions

The defendants Rucker, Arroyo, Straight and Johnson, made statements to law enforcement officers which refer to some of their co-defendants by name. The statements made by Arroyo have been suppressed following a hearing and are, therefore, no longer relevant. Invoking Bruton v. United States and its progeny, the defendants Kearse, Hutchinson, Nix, Straight, Williams, Cumberbatch, Rucker and Johnson moved for severance, a suppression of statements and/or a redaction of them.

In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Supreme Court held that the confrontation clause of the Sixth Amendment was offended when a defendant's statement implicating a co-defendant was placed before the jury in their joint trial despite the cautionary instruction that the statement was to be considered only against the declarant who did not testify and was, therefore, not subject to cross-examination. Bruton was followed by Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) in which the Court held that where a co-defendant's statement "was not incriminating [to the defendant] on its face, and became so only when linked with evidence introduced later at the trial" it was proper to indulge the presumption that a jury would heed the court's limiting instruction to consider the co-defendant's statement only against him. In so holding, the Court declined to extend Bruton but expressed "no opinion on the admissibility of a confession in which the defendant's name has been replaced with a symbol or neutral pronoun." 481 U.S. at 211, n. 5, ...

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