United States v. Rogers
| Decision Date | 21 May 1986 |
| Docket Number | Crim. A. No. 84-CR-337. |
| Parties | UNITED STATES of America v. Gerald Leo ROGERS, aka T.T. Smith III, Claude de Bleu, Allan J. Martin, James F. Stokes, J.R. Kingston, and Ambrose I. Goldsmith, Gary W. Coomber, Mario Fonseca-Lopez, and Arnold P. Lepone. |
| Court | U.S. District Court — District of Colorado |
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Gerald Rafferty and Richard J. Nolan, Asst. U.S. Attys., Denver, Colo., for plaintiff.
John Moorhead, Baker & Hostetler, Denver, Colo., and Jeffrey S. Gordon, O'Donnell & Gordon, Los Angeles, Cal., for Rogers.
Laurence B. Finegold, Finegold & Zulauf, Seattle, Wash., for Coomber.
Ray Takiff, Coconut Grove, Fla., for Fonseca-Lopez.
Michael Canges, Nina Iwashko, Canges & Volpe, Denver, Colo., for Lepone.
This is the second lengthy opinion I have written in this case. The first appears at 602 F.Supp. 1332 (D.Colo.1985).
After eighteen months of investigation and deliberation regarding an alleged scheme to sell fraudulent gold mining tax shelter investments, a grand jury of the District of Colorado returned a thirty count indictment in this case against defendants Gerald Rogers, Gary Coomber, Arnold Lepone, and Mario Fonseca-Lopez. The indictment charges the named defendants with mail fraud, racketeering, tax fraud, securities fraud, conspiracy to obstruct justice, obstruction of justice, and perjury. Additionally, the indictment alleges forfeitures under the Comprehensive Forfeiture Act of 1984, 18 U.S.C. § 1963. The day after the indictment was returned, the grand jury filed a "Superceding (sic) Indictment" which contained the identical counts plus an additional paragraph in the forfeiture allegations following Count XI. This paragraph lists the entities which are subject to the forfeiture allegations.
Fourteen motions are now pending: (1) Rogers' motion for disclosure of all matters occurring before the grand jury; (2) Rogers' motion for severance of counts XXII through XXVI; (3) Coomber's motion to sever counts I through IV and XXII through XXVI; (4) Rogers' motion to dismiss count XI (RICO); (5) Coomber's motion to dismiss count XI (RICO); (6) Rogers' motion to dismiss counts XVI through XXI and XXIII through XXVI for insufficiency; (7) Coomber's motion to dismiss count XXII (conspiracy to obstruct justice) for insufficiency; (8) Rogers' motion in limine to preclude the government from calling defense counsel as prosecution witnesses; (9) Rogers' motion for collateral estoppel; (10) Rogers' motion to dismiss for grand jury abuse and prosecutorial misconduct; (11) Coomber's motion for suppression of items seized and statements made; (12) Coomber's motion for information regarding prior misconduct and convictions; (13) Coomber's motion to strike; and (14) Lepone's motion for disclosure regarding mail cover.
Before turning to a consideration of each of these motions, I shall briefly summarize the various counts in the indictment. Counts I through IV allege that Rogers and Fonseca-Lopez committed acts of mail fraud in violation of 18 U.S.C. § 1341. Counts V through X allege that Coomber, Rogers, and Fonseca-Lopez committed further and different acts of mail fraud. Count XI alleges that Coomber, Rogers, and Fonseca-Lopez were engaged in an enterprise and committed acts of racketeering in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c). Counts XII through XV allege that Coomber, Rogers, and Fonseca-Lopez engaged in acts constituting securities fraud in violation of 15 U.S.C. §§ 77q(a), 77x, and 18 U.S.C. § 2. Counts XVI through XXI allege that Rogers and Coomber committed acts of tax fraud in violation of 26 U.S.C. § 7206(2). Count XXII alleges that Rogers and Coomber conspired to obstruct justice, in violation of 18 U.S.C. § 371. Counts XXIII through XXVI charge Rogers with obstructing justice, in violation of 18 U.S.C. § 1503, by inducing witnesses to testify falsely before the grand jury. Counts XXVII through XXX charge Lepone with violating 18 U.S.C. § 1623(a) by testifying falsely before the grand jury.1
Rogers' motion for discovery of grand jury materials is mooted by my decision on May 6, 1986, granting Rogers' request for disclosure of all in camera materials submitted by the government in this case.
Pursuant to Fed.R.Crim.P. 14, both Rogers and Coomber have moved for severance in this case. In relevant part, Rule 14 provides:
If it appears that a defendant ... is prejudiced by a joinder of offenses or of defendants in an indictment ... 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 relief justice requires.
Rule 14 permits severance of counts in the indictment, as well as severance of co-defendants, where joinder is prejudicial. Both Rogers and Coomber seek severance of counts. Coomber also requests severance as a co-defendant.
The first step in considering a motion for severance of counts is to determine whether the offenses charged in the indictment were properly joined under Fed.R.Crim.P. 8(a). See 1 C. Wright, Federal Practice and Procedure § 221 at 769 (). Rule 8(a) provides a wide ambit for joinder of offenses charged against a single defendant:
Two or more offenses may be charged in the same indictment ... in a separate count for each offense if the offenses charged ... are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
In the instant case, Rogers seeks severance of the charges of obstruction of justice (counts XXII through XXVI) from the remaining counts in the indictment. Although Rogers does not contend that the obstruction charges were improperly joined with the remaining counts, I have determined they were properly joined under Rule 8. Evidence of Rogers' involvement in the alleged RICO, mail, tax, and securities fraud offenses would tend to establish a motive for the obstruction of justice charges. Similarly, evidence regarding the obstruction counts would tend to establish the existence of guilty knowledge with respect to the RICO, mail, tax, and securities fraud charges. The offenses alleged are all part of the same common scheme and are inextricably connected. See United States v. Berardi, 675 F.2d 894, 900 (7th Cir.1982); United States v. Carmichael, 685 F.2d 903, 910 (4th Cir.1982), cert. denied, 459 U.S. 1202, 103 S.Ct. 1187, 75 L.Ed.2d 434 (1983). Thus, they have been properly joined under Rule 8(a).
The second step in considering a motion for severance of counts is to determine whether the defendant will be prejudiced by joinder of those counts. In the instant case, Rogers asserts that the obstruction of justice counts must be severed from the remaining charges because they would cause substantial prejudice. More specifically, Rogers contends prejudice would arise in this case due to the number and complexity of the charges which would prevent the jury from separating the evidence relevant to each charge, despite limiting instructions. Further, Rogers argues the jury will infer guilt on the RICO, mail, tax, and securities fraud charges from evidence he allegedly compelled grand jury witnesses to commit perjury with respect to the facts underlying those charges.
"In order to obtain a severance, a defendant must show clear prejudice resulting from joinder at trial." United States v. Strand, 617 F.2d 571, 575 (10th Cir.), cert. denied, 449 U.S. 841, 101 S.Ct. 120, 66 L.Ed.2d 48 (1980) (citing United States v. Bridwell, 583 F.2d 1135 (10th Cir.1978)); see also United States v. Burrell, 720 F.2d 1488, 1492 (10th Cir.1983). It is not enough that the defendant would have a better chance of acquittal if separate trials were held. See United States v. Brown, 784 F.2d 1033, 1038 (10th Cir.1986) (citing Strand, 617 F.2d 571); Burrell, 720 F.2d 1488, 1492 (citing United States v. Neal, 692 F.2d 1296, 1305 (10th Cir.1982); United States v. Dennis, 625 F.2d 782, 802 (8th Cir.1980)). The prejudice resulting from joinder of offenses must be such that the defendant would be deprived of a fair trial. See United States v. Chagra, 754 F.2d 1186, 1188 (5th Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 255-56, 88 L.Ed.2d 262 (1985).
In the instant case, I find Rogers has failed to demonstrate prejudice which would deprive him of a fair trial. Although the offenses in this case are numerous and some of the evidence may be complex, a jury would not be unable to give separate consideration to each offense. Limiting instructions will provide an adequate safeguard against any risk of prejudice in the form of jury confusion, evidentiary spillover, and cumulation of evidence. See Berardi, 675 F.2d 894, 901 (citing Strand, 617 F.2d 571, 575; United States v. Pacente, 503 F.2d 543, 547 (7th Cir.1974) (en banc), cert. denied, 419 U.S. 1048, 95 S.Ct. 623, 42 L.Ed.2d 642 (1974)). Further, it is significant that evidence regarding the obstruction of justice charges is admissible in a trial on the RICO, mail, tax, and securities fraud counts. Similarly, evidence of Rogers' involvement in the alleged racketeering and fraud charges is admissible in a trial on the obstruction charges because such evidence tends to establish consciousness of the illegal scheme. Under these circumstances, separate trials would be unnecessarily duplicitous. For these reasons, Rogers' motion for severance is denied.2
Coomber has also moved for severance of the obstruction of justice counts. Unlike Rogers, however, Coomber is charged only with...
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