United States v. York, 1:16-cr-00069-LJO-SKO-11

• Decision Date: 22 September 2017
• Docket Number: 1:16-cr-00069-LJO-SKO-11
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. James York, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

UNITED STATES OF AMERICA, Plaintiff,
v.
James York, et al., Defendants.

1:16-cr-00069-LJO-SKO-11

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

September 22, 2017

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO SEVER PURSUANT TO FEDERAL RULES OF CRIMINAL PROCEDURE 8 AND 14

(ECF Nos. 306, 322, 324, 325, 327, 328, 335, 337, 339, 340, 344, 349, 355, 361, 367, 369, 370, 371, 374, 379, 431)

I. INTRODUCTION

Each of the eighteen defendants in this case has filed a motion to sever his or her trial from co-defendants, alleging misjoinder and prejudicial joinder. Several defendants have requested, in the alternative, that the Court sever the trials on various counts in the Indictment from other counts. For the reasons set forth below, these motions are GRANTED IN PART and DENIED IN PART.

II. BACKGROUND

On May 5, 2016, a federal grand jury returned a 26-count indictment charging eighteen defendants with the following counts:

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Count	Charge	Defendant(s)
1	Conspiracy to commit murder in; furtherance of a criminal enterprise in; violation of 18 U.S.C. § 1959(a)(5)	James York; Trenell Monson; Diandre Stanfill; Darrell Maxey; Davon Millro; Kenneth Wharry; Kenneth Johnson; Kiandre Johnson; Anthony Windfield; William Lee
2	Sex Trafficking by Force, Fraud, or; Coercion in violation of 18 U.S.C. §; 1591(a)(1) and (b)(1) and (e)2	James York
3	Sex Trafficking by Force, Fraud, or; Coercion in violation of 18 U.S.C. §; 1591(a)(1) and (b)(1)	James York
4	Sex Trafficking by Force, Fraud, or; Coercion in violation of 18 U.S.C. §; 1591(a)(1) and (b)(1)	Trenell Monson
5	Sex Trafficking by Force, Fraud, or; Coercion in violation of 18 U.S.C. §; 1591(a)(1) and (b)(1)	Trenell Monson
6	Sex Trafficking by Force, Fraud, or; Coercion in violation of 18 U.S.C. §; 1591(a)(1) and (b)(1)	Trenell Monson
7	Sex Trafficking by Force, Fraud, or; Coercion in violation of 18 U.S.C. §; 1591(a)(1) and (b)(1)	Darrell Maxey
8	Sex Trafficking by Force, Fraud, or; Coercion in violation of 18 U.S.C. §; 1591(a)(1) and (b)(1)	Darrell Maxey
9	Sex Trafficking of a Minor in violation; of 18 U.S.C. § 1591(a)(1), (b)(2) and (c)	Aquilla Bailey
10	Interstate Transportation for Prostitution; in violation of 18 U.S.C. § 2421	Kenneth Wharry
11	Interstate Transportation for Prostitution; in violation of 18 U.S.C. § 2421	Markeith Canady
12	Interstate Transportation for Prostitution; in violation of 18 U.S.C. § 2421	Kevin Packard
13	Use of a Facility of Interstate Commerce; to Promote Prostitution in violation of; 18 U.S.C. § 1952	James York
14	Use of a Facility of Interstate Commerce; to Promote Prostitution in violation of; 18 U.S.C. § 1952	Trenell Monson

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15	Use of a Facility of Interstate Commerce; to Promote Prostitution in violation of; 18 U.S.C. § 1952	Darrell Maxey
16	Use of a Facility of Interstate Commerce; to Promote Prostitution in violation of; 18 U.S.C. § 1952	Davon Millro
17	Use of a Facility of Interstate Commerce; to Promote Prostitution in violation of; 18 U.S.C. § 1952	Kenneth Wharry
18	Use of a Facility of Interstate Commerce; to Promote Prostitution in violation of; 18 U.S.C. § 1952	Kiandre Johnson
19	Use of a Facility of Interstate Commerce; to Promote Prostitution in violation of; 18 U.S.C. § 1952	Markeith Canady
20	Use of a Facility of Interstate Commerce; to Promote Prostitution in violation of; 18 U.S.C. § 1952	Kevin Packard
21	Use of a Facility of Interstate Commerce; to Promote Prostitution in violation of; 18 U.S.C. § 1952	Aquilla Bailey
22	Use of a Facility of Interstate Commerce; to Promote Prostitution in violation of; 18 U.S.C. § 1952	Sharika Gaines
23	Conspiracy to Effect the Transactions; with Access Devices Issued to Other; Persons in violation of 18 U.S.C. §; 1029(a)(5) and (b)(2)	Kenneth Wharry; Kenneth Johnson; Anthony Windfield; Natasha Parks; Luther Newsome; Marvin Larry
24	Felon in Possession of a Firearm in; Violation of 18 U.S.C. § 922(g)(1)	Steven Blackmon
25	Possession with Intent to Distribute a; Controlled Substance (Marijuana) in; violation of 21 U.S.C. § 841(a)(1)	Steven Blackmon
26	Possession of an Unregistered Firearm; in violation of 26 U.S.C. § 5861(d)	James York

(ECF No. 127 ("Indictment").)

The charges in the Indictment are allegedly related to the activity of the Dog Pound Gangsters ("DPG"), a criminal gang operating in the Fresno area. The charges can be broken into four groups with overlapping groups of defendants: Violent Crime in Aid of Racketeering ("VICAR") Count (Count 1), Prostitution Counts (Counts 2-22), Access Device Fraud Count (Count 23), and Gun and Drug Counts

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(Counts 24-26).

The VICAR Count alleges that ten of the eighteen defendants conspired to commit murder in aid of the criminal DPG enterprise and for the purpose of maintaining and increasing their status in DPG in violation of 18 U.S.C § 1959(a)(1).¹ The Indictment lays out significant background on the DPG and alleges that the enterprise engaged in racketeering activity, including prostitution, fraud, and drug trafficking. (Indictment ¶¶ 1-16.) The Government represents that the Prostitution Counts, Device Access Count, and Gun and Drug Counts are racketeering activity related to the enterprise alleged in the VICAR Count. (ECF No. 409 at 7.) The Indictment alleges that the prostitution, fraud, drug, and gun violations were committed as part of and in furtherance of the criminal enterprise. (Indictment ¶ 14-15.)

The Prostitution Counts allege a series of prostitution and sex trafficking offenses by DPG members and associates, including sex trafficking by force, sex trafficking of a minor, use of a facility of interstate commerce to promote prostitution, and interstate transport for prostitution. Each of these offenses qualifies as racketeering activity under VICAR, 18 U.S.C. § 1959.² Six of the ten defendants named in the VICAR Count are alleged to have committed at least one offense in the Prostitution Counts. However, there are four defendants not included in the VICAR Count who are alleged to have engaged in a racketeering prostitution offenses: Markeith Canady, Kevin Packard, Aquilla Bailey, and Sharika Gaines. Sharika Gaines is alleged to be a DPG associate in the Indictment. (Indictment ¶ 13(b).) Aquila Bailey is alleged to be a DPG member in the Indictment. (Id. ¶ 13(a).) Markeith Canady and Kevin Packard are not alleged to be DPG members in the Indictment, although the criminal complaint

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explains that both individuals are "known" DPG members who have "admitted to belonging to the [DPG] on several occasions when contacted by law enforcement personnel." (ECF No. 2 ¶ 85 (Canady), ¶ 88 (Packard).)

The Access Device Fraud Count alleges a conspiracy to commit access device fraud in violation of 18 U.S.C. § 1029(a)(5) and (b)(2). The Indictment also alleges that DPG, as an enterprise, participated in access device fraud to generate revenue. (Indictment ¶ 2.) Three of the defendants in the Access Device Fraud Count, Kenneth Wharry, Kenneth Johnson, Anthony Windfield, are also defendants in the VICAR Count and are alleged DPG members. (Indictment ¶ 13(a).) Three of the Defendants, Natasha Parks, Luther Newsome, and Marvin Larry, are not alleged VICAR defendants and are not otherwise alleged in the Indictment to be DPG members. However, the criminal complaint identifies Luther Newsome as a DPG member and Natasha Parks and Marvin Larry as DPG associates. (ECF No. 2 ¶ 90 (Parks), ¶ 91 (Larry), ¶ 92 (Newsome).)

Lastly, the Indictment charges Steven Blackmon with possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1)), and of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Blackmon is not implicated in any other charges in the Indictment. Count 26 charges James York with possessing an unregistered short barreled rifle in violation of 26 U.S.C. § 5861(d). York, an alleged DPG member, is also named in the VICAR Count and several of the Prostitution Counts.

All eighteen defendants move to sever pursuant to Rules 8(b) and 14 of the Federal Rules of Criminal Procedure. (ECF Nos. 306, 322, 324, 325, 327, 328, 335, 337, 339, 340, 344, 349, 355, 361, 367, 369, 370, 371, 379, 374, 431.) Certain defendants object to being joined with co-defendants, while other defendants object to the joinder of certain counts in the Indictment. (Id.) The Government opposed the motions as to all defendants initially (ECF No. 409), but in response to a request for supplemental briefing from the Court, conceded that there was no basis for joining Defendants Canady, Packard, and Blackmon on the face of the Indictment (ECF No. 434). Several defendants submitted reply briefs. (ECF

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Nos. 413, 431, 443/444.)

III. DISCUSSION

A. Joinder of Defendants: Federal Rule of Criminal Procedure 8(b)

Under Federal Rule of Criminal Procedure 8(b), "[t]he indictment or information may charge 2 or more defendants if they 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." Although Rule 8(b) applies explicitly to the joinder of defendants, not offenses, the "joinder of charges when multiple defendants are involved is controlled by Rule 8(b), not Rule 8(a)." United States v. Sanchez-Lopez, 879 F.2d 541, 550 (9th Cir. 1989) (citations omitted); see also 1A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 144 (4th ed. 2017) ("The case law is relatively clear that in cases involving multiple defendants, the propriety of joinder is tested by Rule 8(b) alone and that Rule 8(a) has no application.").

In interpreting the phrase "same series of acts or constituting an offense or offenses" in Rule 8(b), the Ninth Circuit has stated:

The term "transaction" is interpreted flexibly, and whether a "series" exists depends on whether there is a "logical

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