US v. Brown

• Citation: 744 F. Supp. 558
• Decision Date: 22 August 1990
• Docket Number: No. S 90 Cr. 115 (PKL).,S 90 Cr. 115 (PKL).
• Parties: UNITED STATES of America, v. Stephen Anthony BROWN and Carl Wilson, Defendants.
• Court: U.S. District Court — Southern District of New York

744 F. Supp. 558

UNITED STATES of America, v. Stephen Anthony BROWN and Carl Wilson, Defendants.

No. S 90 Cr. 115 (PKL).

United States District Court, S.D. New York.

August 22, 1990.

COPYRIGHT MATERIAL OMITTED

Otto G. Obermaier, U.S. Atty., Southern District of New York, New York City (Ass't U.S. Atty. Jonathan M. Halpern, of counsel), for U.S.

Michael M. Maloney, New York City, for defendant Stephen Anthony Brown.

Orden & Cohen, New York City (Joel Cohen, of counsel), for defendant Carl Wilson.

OPINION AND ORDER

LEISURE, District Judge.

Defendants are charged in a five count superseding indictment now before this Court. Defendants Stephen Anthony Brown ("Brown") and Carl Wilson ("Wilson") are charged in Counts One through Four of the indictment with conspiracy to possess and distribute cocaine (Count One), and three counts of substantive distribution or possession with intent to distribute cocaine (Counts Two, Three, Four). Additionally, Brown is charged with illegal reentry into the United States after a previous deportation (Count Five). The defendants have now brought various pre-trial motions before the Court. Certain of those motions were addressed by the Court following oral argument on August 9, 1990.¹ Those motions not decided at the hearing are addressed below.

DISCUSSION

A) Severance of Parties

Defendant Wilson has moved to be severed from defendant Brown. The Second Circuit has recently stated that Fed.R. Crim.P. 8(b) provides that "participation of multiple defendants in the `same act or transaction,' or the same `series' of such acts, will authorize a joint trial on common or individual counts." We have construed this language to mean that joinder is proper where two or more persons' criminal acts are "`"unified by some substantial identity of facts or participants," or "arise out of a common plan or scheme."'" United States v. Cervone, 907 F.2d 332, 341 (2d Cir.1990) (quoting United States v. Attanasio, 870 F.2d 809, 815 (2d Cir.1989)) (quoting United States v. Porter, 821 F.2d 968, 972 (4th Cir.1987), cert. denied, 485 U.S. 934, 108 S.Ct. 1108, 99 L.Ed.2d 269 (1988)).

Generally, where defendants ... "are jointly indicted they should be jointly tried." United States v. Ventura, 724 F.2d 305, 312 (2d Cir.1983). This is particularly true where the crimes charged involves a common scheme or plan. See United States v. Turoff, 853 F.2d 1037, 1042-43 (2d Cir.1988); United States v. Girard, 601 F.2d 69, 72 (2d Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979). The Supreme Court has unequivocally stated that "joint trials play a vital role in the criminal justice system." Richardson v. Marsh, 481 U.S. 200, 209, 107 S.Ct. 1702, 1708, 95 L.Ed.2d 176 (1987).

The Court notes that motions to sever under Fed.R.Crim.P. 14 are "committed to the sound discretion of the trial judge," and that it is a defendant's "heavy burden" to:

show facts demonstrating that he will be so severely prejudiced by a joint trial that it would in effect deny him a fair trial. The defendant must demonstrate that he suffered such prejudice as a result of joinder, not that he might have had a better chance for acquittal at a separate trial.

United States v. Chang An-Lo, 851 F.2d 547, 556 (2d Cir.) (citations omitted), cert. denied, 488 U.S. 966, 109 S.Ct. 493, 102 L.Ed.2d 530 (1988). See also United States v. Nersesian, 824 F.2d 1294, 1303 (2d Cir.), cert. denied, 484 U.S. 958, 108 S.Ct. 357, 98 L.Ed.2d 382 (1987) (burden of showing substantial prejudice amounting to a miscarriage of justice). "`"Differing levels of culpability and proof are inevitable in any multiple defendant trial and, standing alone, are insufficient grounds for separate trials."'" United States v. Torres, 901 F.2d 205, 230 (2d Cir.1990) (quoting United States v. Chang An-Lo, supra, 851 F.2d at 557 (quoting United States v. Carson, 702 F.2d 351, 366-67 (2d Cir.), cert. denied, 462 U.S. 1108, 103 S.Ct. 2546, 2547, 77 L.Ed.2d 1335 (1983))).

The focus of Wilson's severance motion is the likelihood that evidence will be introduced against Brown that does not involve Wilson. Wilson asserts that this evidence will have a "spillover" effect on him, thus prejudicing his ability to receive a fair trial. However, the simple fact that evidence will be introduced against Brown that will not be applicable to Wilson is not grounds for severance, particularly where the jury will be instructed as to the proper consideration of the evidence as it applies to each defendant. See United States v. Carson, supra, 702 F.2d at 367; United States v. Losada, 674 F.2d 167, 171-72 (2d Cir.), cert. denied, 457 U.S. 1125, 102 S.Ct. 2945, 73 L.Ed.2d 1341 (1982). More importantly, in the instant case, the face of the indictment indicates that the vast majority of the crimes charged involve joint action by the defendants. Thus, most of the evidence will be admissible against, and applicable to, both defendants. The Court finds that Wilson has not shown that a joint trial will substantially prejudice him. Thus, his motion for severance from defendant Brown is denied.

B) Severance of Counts

Defendant Brown moves to have Counts One and Five severed from the remainder of the indictment. Because these two Counts are related differently to Counts Two, Three and Four, the Court will deal with the severance of Counts One and Five separately.

1) Count One

Brown asserts that Count One does not bear a sufficient relationship to the remainder of the indictment to be properly joined. Count One alleges that Brown and Wilson participated in a conspiracy to distribute cocaine. Count One further includes six overt acts stretching in time from August through October 1989. Brown alleges that this conspiracy count is not sufficiently related to the other alleged offenses to justify its joinder.

In multi-defendant cases, such as the one now before the Court, the joinder of offenses must be reviewed under the standard set forth under Fed.R.Crim.P. 8(b), rather than under Fed.R.Crim.P. 8(a). United States v. Turoff, supra, 853 F.2d at 1043; United States v. Biaggi, 909 F.2d 662, 675-76 (2d Cir.1990). Thus, "multiple defendants cannot be tried together on two or more `similar' but unrelated acts or transactions; multiple defendants may be tried together only if the charged acts are part of a `series of acts or transactions constituting an offense or offenses.'" Id. (citing C. Wright, Federal Practice and Procedure, § 144, at 508-09 (2d ed. 1982)). Thus, it is clear that a conspiracy count can be joined with a substantive offense, if those offenses arise out of the same series of events or transactions.

In the instant case, it is evident from the face of the indictment that the Count One is sufficiently related to Counts Two through Four. The Count One conspiracy includes the entire time period covered by the three substantive narcotics offenses alleged in Counts Two through Four. Where an indictment on its face charges defendants with a conspiracy to commit certain acts, and also charges commission of such acts within the time frame of the alleged conspiracy, it may logically be concluded that the substantive acts were a part of the same series of acts or transactions alleged in the conspiracy. Further, the simple fact that one of the overt acts alleged in the conspiracy is not intimately tied to the substantive offenses charged in Counts Two through Four does not, in and of itself, indicate that the conspiracy and the substance offenses did not arise out of the same series of acts or transactions, as required by Rule 8(b). Thus, the Court finds that Count One is adequately joined under Rule 8(b). Further, the Court finds that Brown has not shown substantial prejudice as required under Fed.R.Crim.P. 14 for the Court to exercise its discretion to sever an otherwise properly joined offense.

2) Count Five

Defendant Brown further asserts that Count Five of the indictment, charging him with illegal reentry into the United States, should be severed from the remainder of the indictment. The Court will review this assertion under the standard of Rule 8(b), as discussed above.²

The only basis for joinder of Count Five under Rule 8(b) is that it is part of the same series of acts or transactions as the other offenses charged in the indictment. Count Five on its face is substantially different from the other allegations in the indictment. The focus of the first four counts, which name both Brown and Wilson as defendants, is an alleged conspiracy to possess and distribute cocaine, and the actual possession and distribution of cocaine. By contrast, Count Five names only Brown as a defendant, and charges him with entering the United States illegally after a prior deportation, in violation of § 1326 of Title 8 of the United States Code. Brown asserts that this charge is not sufficiently related to the other counts in the indictment to withstand scrutiny under Rule 8(b).

The government argues that Brown's involvement in the substantive offenses charged in Counts Two through Four is directly related to the illegal reentry charged in Count Five, since Brown could not have accomplished those substantive offenses as charged without being present in the United States. "In the absence of his illegal return and presence in the United States, this post-deportation charge of narcotics trafficking in the United States would not have been brought against him." Government's Memorandum of Law at 27. Thus, the government argues, Brown's allegedly illegal reentry into the United States was a critical act leading to his commission of the substantive offenses charged in Counts Two through Four.

In asserting that this relationship between Count Five and the remainder of the indictment is sufficient for joinder under Rule 8(b), the government has directed the Court's attention to United States v. Cole, 857 F.2d 971 (4th Cir.1988), cert. denied, ___ U.S. ___, 109 S.Ct. 1351, 103 L.Ed.2d 819 (1989). In Co...