United States v. Mohammad
| Decision Date | 27 September 2012 |
| Docket Number | CASE NO. 1:10CR389 |
| Parties | UNITED STATES OF AMERICA, PLAINTIFF, v. SAMIR MOHAMMAD, et al., DEFENDANTS. |
| Court | U.S. District Court — Northern District of Ohio |
OPINION AND ORDER
Before the Court are a series of pre-trial motions filed by defendant Hamdi ("Sam") Qasem. Specifically, the Court will address herein: defendant Qasem's motion for his co-defendant, Samir Mohammad, to be tried on Counts Two through Five in a separate proceeding (Doc. No. 120); Qasem's motion for a bill of particulars (Doc. No. 122); and Qasem's motion to transfer (Doc. No. 124). All motions are fully briefed, and are ripe for disposition.
On September 14, 2010, an indictment was returned against defendant Mohammad. (Doc. No. 1.) The charges stemmed from an FBI investigation, conducted over a number of years, into allegations of public corruption and conspiracy in Cuyahoga County, Ohio. This initial charging instrument charged Mohammad with conspiracy tocommit bribery concerning programs receiving federal funds, Hobbs Act conspiracy, tampering with a witness, and making false statements to law enforcement.
According to the indictment, Mohammad served in several positions within the county, and, from April 15, 2004 until in or around 2010, served as the deputy auditor for the Cuyahoga County Auditor's Office. It was alleged that Mohammad, with the assistance of other county employees, engaged in a conspiracy whereby county employees demanded and accepted things of value in connection with the awarding of county contracts. It was further alleged that, once the federal government began its public corruption investigation, Mohammad attempted to influence the testimony of a grand jury witness. Also in connection with the federal government's investigation, it was alleged that Mohammad lied in an interview with the FBI.
A superseding indictment was returned by the grand jury on March 30, 2011. (Doc. No. 26, Superseding Indictment.) The new indictment contained the original four counts, but also added a conspiracy charge under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(d). For purposes of RICO conspiracy, the "enterprise" was identified as Cuyahoga County, and the dual purposes of the conspiracy involved: (1) using the power of public officials to benefit Mohammad, his co-conspirators and their designees; and (2) promoting and concealing the racketeering activities of the conspirators. Specific schemes identified in this count included Mohammad's alleged 2003 attempt to bribe then Cuyahoga County Commissioner James Dimora to obtain the position of county administrator, and his alleged 2004 bribe to then Cuyahoga County Auditor Frank Russo in return for his position in the auditor's office.
On September 7, 2011, the government returned the Second Superseding Indictment. (Doc. No. 30.) This most recent indictment included all five counts, but added a new defendant, Qasem, to the RICO conspiracy charge. The RICO conspiracy charge, itself, was also modified. While the enterprise and the dual purposes of the conspiracy remained the same, the breadth of the conspiracy was expanded to include a wider range of racketeering activity. Now included within the reach of the RICO conspiracy charge were the activities of Mohammad and Qasem directed to obtaining county employment and benefits for their designees, whose numbers included "members of the same social organization to which Qasem and Mohammad belong." (Id. at ¶ 27.) According to the Second Superseding Indictment, the illegal activity identified in Counts Two through Four included some of the various acts committed and attempted in furtherance of the RICO conspiracy charged in Count One. (Id. at ¶ 35.).
This case has been continued on a number of occasions, due, in part, to defendant Qasem's multiple requests to be relieved of court-appointed counsel. On May 14, 2012, Qasem moved for a continuance on the ground that he had recently retained attorney Paul Mancino, Jr. to represent him in this matter, and that new counsel needed time to prepare. After conducting a hearing on the motion, the Court granted the continuance. A subsequent continuance was granted to accommodate Mohammad's counsel's trial schedule. Currently, the trial is set to commence on October 15, 2012 with jury selection. Though the deadline for filing pre-trial motions had passed, attorney Paul Mancino and his partner, Brett Mancino, sought and received leave to file additional pre-trial motions on behalf of Qasem. (See Doc. No. 123, and non-document order dated July 9, 2012.).
Defendant Qasem requests that he and Mohammad be tried jointly on Count One, but that his co-defendant be tried separately on Counts Two through Five in a subsequent proceeding.1 Qasem believes that a severance under Fed. R. Crim. P. 14 is necessary to avoid severe prejudice to him, and to ensure that the jury can make a reliable judgment as to his guilt or innocence.
In cases involving a single defendant, Rule 8(a) permits joinder of multiple offenses in the same indictment or information if the offenses are "of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan." Fed. R. Crim. P. 8(a). Rule 8(b) provides that multiple defendants may be charged together "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." Fed. R. Crim. P. 8(b). When defendants are joined for participating in the same series of actions, such as in a conspiracy, the defendants may be charged in one or more counts and all defendants need not be charged in each count. See, e.g., United States v. Williams, 553 F.3d 1073, 1079 (7th Cir. 2009) (). Where defendants are improperly joined, severance is mandatory. United States v. Hatcher, 680 F.2d 438, 441 (6th Cir. 1982). Even where defendants have been properlyjoined, however, a district court may still choose to sever one or more defendants, or one or more counts, if joinder "appears to prejudice a defendant or the government . . . ." Fed. R. Crim. P. 14(a). A decision to grant or deny a motion to sever under Rule 14(a) is left to the discretion of the trial court. See United States v. Lopez, 309 F.3d 966, 971 (6th Cir. 2002); United States v. Anderson, 89 F.3d 1306, 1312 (6th Cir. 1996).
"Under Rule 8(b) multiple defendants may be joined only if a sufficient nexus exists between the defendants and the single or multiple acts or transactions charged as offenses." United States v. Johnson, 763 F.2d 773, 775 (6th Cir. 1985).
Rule 8(b) provides substantial leeway to prosecutors who would join racketeering defendants in a single trial. The rule permits joinder of defendants charged with participating in the same racketeering enterprise or conspiracy, even when different defendants are charged with different acts, so long as indictments indicate all the acts charged against each joined defendant (even separately charged substantive counts) are charged as racketeering predicates or as acts undertaken in furtherance of, or in association with, a commonly charged RICO enterprise or conspiracy.
United States v. Efrasio, 935 F.2d 553, 567 (3d Cir. 1991); see United States v. Davis, 707 F.2d 880, 883 (6th Cir. 1983) (); United States v. Triumph Capital Group, 260 F. Supp. 2d 432, 438 (D. Conn. 2002) (internal quotation and citation omitted) ("In essence, if the RICO charge is valid, an indictment charging the substantive crimes alleged as predicate acts along with the RICO claim satisfies the requirements for valid joinder under Rule 8(b)."); see also United States v. Warner, 690 F.2d 545, 551 (6th Cir. 1982) ().
Here, Count 1 charges both defendants with RICO conspiracy. In addition to identifying the enterprise and the purposes of the conspiracy, paragraphs 21 to 34 allege a racketeering conspiracy to benefit the defendants, their co-conspirators, and designees, and paragraph 35 alleges that the defendants and others "committed and attempted to commit various acts in furtherance of the conspiracy" and further identifies predicate acts, which also form the basis for Counts Two through Four. Because the indictment properly charges a RICO conspiracy, with the substantive crimes also forming the predicate acts for the conspiracy, it satisfies Rule 8(b). See Triumph, 260 F. Supp. 2d at 438; see, e.g., United States v. Carson, 455 F.3d 336, 373 (D.C. Cir. 2006) ( ); United States v. Neace, Case No. 07-20400, 2008 U.S. Dist. LEXIS 30029, at *8-*9 (E.D. Mich. Apr. 14, 2008) ().
Because the defendants were properly joined, the Court now considers defendant Qasem's request for severance. "In order to prevail on a motion for [permissive] severance, a defendant must show compelling, specific, and actual prejudice from a court's refusal to grant the motion to sever." United States v. Saadey, 393 F.3d 669, 678 (6th Cir. 2005) (citing United States v. Sherlin, 67 F.3d 1208,...
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