United States v. Lacerda
| Decision Date | 19 June 2013 |
| Docket Number | Crim. No. 12-303 (NLH/AMD) |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ADAM LACERDA, a/k/a "Robert Klein," et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
Presently before the Court are the parties' various pre-trial motions. Trial in this matter is set to commence on July 8, 2013. The Court held a pre-trial hearing on June 13, 2013. At the hearing, the Court orally ruled from the bench on some of the motions, and reserved judgment on other issues contained in the motions. This Memorandum Opinion and its accompanying Order serve to resolve all issues related to the parties' pre-trial motions.
The facts of this case are familiar to all parties, and the Court therefore need not provide a full factual recitation here. In short, the Defendants in this criminal proceeding are charged with devising and executing a scheme to defraud timeshare owners of their money and property through a business entity known asthe Vacation Ownership Group ("VO Group").1 Several Defendants are also charged with committing unemployment fraud by allegedly failing to report income from the VO Group while collecting unemployment benefits from the New Jersey Department of Labor ("NJDOL").
On May 14 and 17, 2013, Defendants Adam Lacerda, Ashley Lacerda,2 Joseph DiVenti, Ian Resnick, and Genevieve Manzoni filed various pre-trial motions seeking to resolve certain issues in advance of the July 8, 2013 trial date.3 [Docket Nos. 154, 156, 157, 158, 159, 162.] The United States filed a Brief in Opposition on May 28, 2013. [Docket No. 166.] Defendant Manzoni filed a Reply on May 31, 2013. [Docket No. 169.] The United States then sought and obtained the Court's permission to file a Sur-reply to Manzoni's Reply [Docket Nos. 175 & 176], to which Manzoni replied on June 7, 2013. [Docket No. 177.] TheCourt held oral argument on these various motions and issues on June 13, 2013, at which time it orally ruled from the bench on certain issues and reserved judgment on others. Having now reviewed the parties' paper submissions and having had the benefit of oral argument, the Court will formally rule on the parties' motions below.
Although some issues raised in these motions are Defendant-specific, others were raised jointly or predicated upon largely similar arguments. The Court, therefore, will address the arguments made in the parties' motions on an issue-by-issue basis.
Defendants Ashley Lacerda and Manzoni argue that their trials should be severed from that of their co-Defendants in this matter pursuant to Rule 14 of the Federal Rules of Criminal Procedure. Rule 14 governs the severance of defendants and counts in criminal proceedings, and provides that:
If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.
Fed. R. Crim. P. 14(a). Under Rule 14, a moving defendant bears the "heavy burden" of demonstrating that he would be"substantially prejudiced" by a joint trial. United States v. Cotona, Crim.No.07-26, 2007 U.S. Dist. LEXIS 78375, at *4 (D.N.J. Oct. 22, 2007)(citing United States v. DiPasquale, 740 F.2d 1282, 1293 (3d Cir. 1984)); see also United States v. Espinosa, Crim.No.07-482, 2009 U.S. Dist. LEXIS 5913, at *8 (E.D. Pa. Jan. 27, 2009). According to the United States Court of Appeals for the Third Circuit, in order for a defendant to be granted severance under Rule 14, he must point to "clear and substantial prejudice" that would result in a manifestly unfair trial. United States v. Eufrasio, 935 F.2d 553, 568 (3d Cir. 1991). Indeed, mere allegations of prejudice are insufficient to meet the heavy burden, as the defendant must indicate more than the fact that a separate trial may offer him a better chance of acquittal. Espinosa, 2009 U.S. Dist. LEXIS 5913 at *8 (internal citations omitted). The ultimate decision of whether to sever defendants rests with the sound discretion of the trial court. United States v. Boyd, 595 F.2d 120, 125 (3d Cir. 1978). In exercising this discretion, trial courts should weigh the potential undue prejudice to the defendant against the interests of judicial economy and any potential prejudice to the government. United States v. Sandini, 888 F.2d 300, 305 (3d Cir. 1989). Moreover, the Supreme Court of the United States has previously recognized that "a district court should grant a severance under Rule 14 only if there is a serious risk that ajoint 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." United States v. Zafiro, 506 U.S. 534, 539 (1993).
Ashley argues that her involvement in the charged criminal scheme was very limited, and that, absent a severance, she will be unable to present a complete defense. (Ashley Lacerda Br. at 3-4.) In support of her motion, Ashley attaches a Declaration from her husband and co-Defendant, Adam Lacerda, in which he states that he would provide exculpatory information on her behalf if she were tried separately. More specifically, Adam states in the Declaration that he is likely to invoke his Fifth Amendment privilege against self-incrimination in the instant trial where they are co-Defendants, but "believe[s] [he] can provide helpful and exculpatory evidence" if Ashley's case proceeds to trial separately after his. (Id., Ex. A, Decl. of Adam Lacerda.) Adam declares that he would testify at Ashley's trial that, despite her status as a co-owner of the VO Group, her role in the company was limited to secretarial and administrative actions, and that she played no direct role in making sales calls or acting as a sales person in furtherance of the scheme. (Id.) Based on these statements, Ashley argues that Adam's testimony in and of itself would create a reasonabledoubt as to her guilt at a trial, and that she will be deprived of her right to present exculpatory evidence if forced to proceed to trial jointly. (Ashley Lacerda Br. at 4.)
In United States v. Boscia, 573 F.2d 827 (3d Cir. 1978), the Third Circuit enumerated four factors for district courts to consider when a defendant seeks severance on the grounds that a co-defendant may provide exculpatory testimony in a severed trial:
(1) The likelihood of the co-defendant testifying; (2) the degree to which such testimony would be exculpatory; (3) the degree to which the testifying co-defendant could be impeached; and (4) judicial economy.
Id. at 832; United States v. Gonzalez, 918 F.2d 1129, 1137 (3d Cir. 1990). It has previously been recognized that severance pursuant to the Boscia factors is an extremely rare occurrence within this Circuit. See United States v. Done, Crim.No.09-601, 2011 U.S. Dist. LEXIS 103739, at *15 (D.N.J. Sept. 6, 2011).
As to the first Boscia factor — the likelihood of the co-defendant testifying — Ashley avers that, (Ashley Lacerda Br. at 4.) In response, the United States asserts that the law requires Ashley to make a"strong showing" that Adam would in fact testify on her behalf at a separate trial, and that her present assertions do not fulfill this prerequisite. (USA Br. at 9.) In support of its argument, the United States points to the fact that Adam's Declaration is riddled with conditional language that smacks of bad faith, and that courts have routinely rejected such uncertain severance requests. (Id. at 10-12.)
It has previously been expressly recognized that a co-defendant's offer to testify premised upon his being tried first does not satisfy the first Boscia factor. See United States v. Bates, 46 F. App'x 104, 109 (3d Cir. 2002); Done, 2011 U.S. Dist. LEXIS 103739 at *15 (citing United States v. Reavis, 48 F.3d 763, 767-68 (4th Cir. 1995)); United States v. Spinelli, 352 F.3d 48, 56 (2d Cir. 2003); United States v. Blanco, 844 F.2d 344, 353 (6th Cir. 1988)); see also United States v. Cooya, Crim.No.08-70, 2012 U.S. Dist. LEXIS 57239, at *8 (M.D. Pa. Apr. 24, 2012). Indeed, "[a]n offer to testify premised on the testifying co-defendant being tried first does not satisfy this requirement because it is premised on the co-defendant making a later determination of whether and how to testify after assessing his own interests and risks consequent to his own trial fate." Done, 2011 U.S. Dist. LEXIS 103739 at *15. Here, Adam's offer to testify on Ashley's behalf is premised on the condition that he be permitted to proceed to trial first. (SeeAshley Lacerda Br. at 4 ()(emphasis added)). Although Adam may presently aver that he would testify on Ashley's behalf at a separate trial, it remains a very real possibility that he may subsequently elect not to do so in light of a potential appeal, the chance if convicted that his testimony with have sentencing and sentencing guidelines ramifications in his own case, the chance of facing additional criminal liability, or being subject to cross-examination about his own criminal activity and knowledge of his wife's actions in furtherance of the fraudulent scheme.4Furthermore, if Ashley's severance request was granted, this would tie the hands of the court and allow "alleged co-conspirators to control the order in which they are tried." Blanco, 844 F.2d at 353.
Moreover, as pointed out by the...
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