United States v. Parks
| Decision Date | 15 July 2020 |
| Docket Number | 19-CR-00087(LJV)(JJM),20-CR-00069(LJV)(JJM) |
| Parties | UNITED STATES OF AMERICA, v. LAVON PARKS and JAMES C. PARKS, Defendants. |
| Court | U.S. District Court — Western District of New York |
On November 30, 2017, a vehicle with three occupants, including defendants Lavon and James C. Parks, was allegedly stopped by law enforcement in Tennessee, and as a result of that stop, three and a half kilograms of cocaine was seized from the vehicle. That alleged conduct gave rise to the Parks defendants being charged in Count 3 of the Superseding Indictment in 19-CR-00087(LJV)(JJM) ("2019 Superseding Indictment"), with possession of cocaine with intent to distribute, in violation of 21 U.S.C. §§841(a)(1), 841(b)(1)(B), and 18 U.S.C. §2. 19-CR-00087 [137]1
In a May 1, 2020 Report, Recommendation and Order [252], I recommended that defendants' motions to dismiss that count of the Superseding Indictment on venue grounds be granted.2 Thereafter, the government returned a one-count Indictment in 20-CR-00069 ("2020 Indictment") [10], which charges defendants with attempting to possess cocaine with intent todistribute, in violation of 21 U.S.C. §846, arising from the November 30, 2017 traffic stop, and the events that preceded it. 20-CR-00069 [1].
Before the court are the government's motions to join the 2019 Superseding Indictment with the 2020 Indictment (19-cr-0087 [280] and 20-cr-0069 [9]), as well as defendants' motions to dismiss the Indictment on venue grounds (20-CR-00069 [10, 12]), which have been referred to me by District Judge Vilardo for initial consideration. 19-CR-00087[10]; 20-CR-00069 [3]. Having reviewed the parties' submissions (19-CR-00087 [280-283, 285]; 20-CR-00069 [9, 10, 12, 15-17]) and heard oral argument on June 30, 2020, the government's motions are granted, and I recommend that defendants' motions be denied.3
"[T]he decision to order two indictments tried together is one to be made in the district court's discretion", as guided by Fed. R. Civ. P. ("Rules") 8 and 13. United States v. Halper, 590 F.2d 422, 428 (2d Cir. 1978). "Rule 13 permits a judge to join indictments for trial if joinder would have been appropriate under Rule 8 had the charges been contained in a single indictment." United States v. Yian, 1995 WL 368445, *10 (S.D.N.Y. 1995). Pursuant to Rule 8(a), multiple offenses may be charged in a single indictment where they "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". See United States v. Pierce, 493 F. Supp. 2d 611, 622 (W.D.N.Y. 2006) ().
The propriety of joinder of separate indictments is determined by "apply[ing] a commonsense rule to decide whether, in light of the factual overlap among charges, joint proceedings would produce sufficient efficiencies such that joinder is proper notwithstanding the possibility of prejudice to either or both of the defendants resulting from the joinder". United States v. Shellef, 507 F.3d 82, 98 (2d Cir. 2007). "For example, counts might be connected if one of the offenses depends upon or necessarily leads to the commission of the other, or if proof of one act constitutes or depends upon proof of the other." Id.
Apart from Count 3, the 2019 Superseding Indictment [137] charges the Parks defendants and others with a conspiracy to possess with intent to distribute cocaine, fentanyl and heroin between May 2017 and March 26, 2019, in violation of 21 U.S.C. §846. Id., Count 1. Defendant Lavon Parks is also charged with possessing cocaine on May 26, 2017 with intent to distribute, in violation of 21 U.S.C. §§841(a)(1) and 841(b)(1)(B) (id., Count 2). In connection with the January 21, 2018 shooting death of Kevin Turner, both he and co-defendant James C. Parks are charged with discharging a firearm in furtherance of a drug trafficking crime and with discharging a firearm causing death, in violation of 18 U.S.C. §§924(c)(1)(A)(iii), 924(j)(1), and 2. Id., Counts 9 and 10.
As argued by the government, the homicide (2019 Superseding Indictment Counts 9 and 10), the possession (id., Count 2), and the attempted possession (2020 Indictment) occurred "[d]uring the course of conspiracy" alleged in Count 1 of the 2019 Superseding Indictment, and was related to narcotics distribution activity. Government's Motion for Joinder[9], 2.4 For example, the government represents that the 2020 Indictment "is a substantive count representing a particular incident contained within the conspiracy charge in 19-CR-87". Id., p. 6. Thus, not only are the charges related, but the government's evidence "to prove the single-count Indictment 20-CR-69 is fully included in the more comprehensive body of evidence the government will use to prove the conspiracy charged in Count 1 of Superseding Indictment 19-CR-97". Id. These representations, and the charges themselves, establish sufficient interrelationship between the indictments to permit joinder. See Yian, 1995 WL 368445 at *10 ().
Defendant James Parks also challenges the sufficiency of the charges in the 2019 Superseding Indictment as against him, arguing that he has "no connection" to either the homicide or the conspiracy. Donohue Affirmation [10], ¶24. Although he is presumed innocent of the charges against him, a grand jury has found probable cause to charge him with those offenses, and at this stage, that is sufficient for me to conclude that joinder is appropriate.
Defendants further argue that they would be prejudiced by joinder, since much of the evidence that would be admissible in a trial of the 2019 Superseding Indictment would be inadmissible in a separate trial of the 2020 Indictment. Donohue Affirmation [10], ¶22. In order to defeat the government's motion, defendants must establish "'substantial prejudice,' which requires more than simply a better chance of acquittal". United States v. Hines, 2018 WL 822217, *2 (W.D.N.Y. 2018) (quoting United States v. Potamitis, 739 F.2d 784, 790 (2d Cir. 1984) (emphasis added)).
Defendants' claims "of prejudice do not rise to a level necessary to diminish the efficiency that a joint trial would allow". Id. Any prejudice from the joinder of the two indictments can be minimized by the use of jury instructions. See United States v. Blake, 195 F. Supp. 3d 605, 612 (S.D.N.Y. 2016) (); United States v. McManus, 2012 WL 3526669, *4 (S.D.N.Y. 2012) ().
As the government notes, "neither defendant sought severance of Count 3 from Superseding Indictment 19-CR-87 at the pretrial motion stage". Government's Motion for Joinder [9], p. 7. Given the similarity between the possession charge of Count 3 of the 2019 Superseding Indictment and the attempted possession charge of the 2020 Indictment, defendants' failure to seek severance is difficult to reconcile with their current claims of prejudice from the joinder of the indictments.5
While the government's decision to return a separate indictment rather than a Second Superseding Indictment may be curious, Rule 13 expressly permits joinder of indictments, and thus "[t]he fact that there were two indictments . . . cannot be material to the propriety of joinder". United States v. Richards, 94 F. Supp. 2d 304, 311 (E.D.N.Y. 2000). Sincethe charges are sufficiently similar under Rule 8 and defendants have "not shown any indicia that a specific trial right would be denied by a joint trial, or that the jury would not be able to make a proper judgment about his guilt or innocence if the trials are consolidated, separation of the indictments is not warranted". Hines, 2018 WL 822217, *2. Accordingly, the government's motions for joinder are granted.
The 2020 Indictment [1] alleges that "[f]rom on or about November 17, 2017, until on or about November 30, 2017, the exact dates being unknown, in the Western District of New York, and elsewhere, the defendants . . . did knowingly, intentionally, and unlawfully attempt to possess with intent to distribute 500 grams or more of a mixture and substance containing cocaine, a Schedule II controlled substance, in violation of [21 U.S.C. §§] 841(a)(1) and 841(b)(1)(B)", all in violation of 21 U.S.C. §846.
In moving to dismiss the 2020 Indictment, defendants continue to argue, as they did in seeking dismissal of Count 3 of the 2019 Superseding Indictment, that since the possession did not occur in this District, venue here is improper. Donahue Affirmation [10], ¶¶12-19. They contend that "restyling the possession charge as 'attempt' does not save it from its venue shortcomings". Id., ¶14.
Those arguments are unpersuasive. The determination of whether venue is proper hinges on the crime at issue, and the elements of the attempt charge here are distinct from the possession charge in Count 3 of the 2019 Superseding Indictment. See United States v. Tzolov, 642 F.3d 314, 318 (2d Cir. 2011) ().
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