US v. Cunningham

• Decision Date: 28 January 1991
• Docket Number: No. CR-2-90-078.,CR-2-90-078.
• Citation: 757 F. Supp. 840
• Parties: UNITED STATES of America, Plaintiff, v. Alex M. CUNNINGHAM, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

757 F. Supp. 840

UNITED STATES of America, Plaintiff, v. Alex M. CUNNINGHAM, et al., Defendants.

No. CR-2-90-078.

United States District Court, S.D. Ohio, E.D.

January 28, 1991.

Anthony Gonzales, Tampa, Fla., for defendants.

Michael Burns, Asst. U.S. Atty., Columbus, Ohio, for plaintiff.

OPINION AND ORDER

GEORGE C. SMITH, District Judge.

This matter is before the Court pursuant to the various motions of Defendant Alex M. Cunningham. Specifically, the defendant has filed a motion asking the Court for severance and a separate trial; a motion asking that the Court dismiss the indictment arguing that the indictment is vague, multiplicious, and in violation of the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution; and a motion arguing that the indictment should be dismissed because the government's previous civil forfeiture of $423,850 was punitive in nature and thus the criminal prosecution of Defendant Alex M. Cunningham would constitute a violation of the Double Jeopardy Clause. The Court will give a brief overview of the status of this case to-date, then address each of the above-referenced matters seriatim.

On April 26, 1990, the Grand Jury, then seated in the Southern District of Ohio, Eastern Division, handed down a nine defendant, twenty-eight count indictment, wherein Defendant Cunningham was named in all twenty-eight counts. At the time the Defendant was a fugitive. He was apprehended in Atlanta, Georgia, returned to the Southern District of Ohio and entered his plea of "not guilty" as to each and every count.

At the time Defendant Cunningham entered his plea, he was represented by Attorney Samuel B. Weiner. Pursuant to an August 30, 1990, Rule 44(c) motion filed by the government, the Court held a hearing to determine whether Attorney Weiner's representation of the defendant constituted a conflict of interest. In an Opinion and Order dated October 10, 1990, the Court held that Attorney Weiner's representation of several co-defendants in a variety of civil forfeiture actions constituted a sufficient link to the case at bar that it required the Court to disqualify Attorney Weiner from representing the defendant.

Subsequent to Attorney Weiner's disqualification, hearings were held concerning seventeen pending discovery motions. Defendant Cunningham advised the Court that he wished to waive counsel and proceed under self-representation. At the October 16, 1990, motions hearing the Court inquired of the defendant his level of education, his degree of experience regarding self-representation, his familiarity with the Federal Rules of Evidence, and a variety of other questions designed to determine the defendant's ability to proceed pro se. The Court recognized the defendant's right to waive counsel, however, due to his apparent deficiencies in representing himself, the Court appointed Attorney Richard Cline to be available as "Stand-by Counsel", and to act in an advisory role only at the defendant's request. The Court was thereafter forced to continue the motions hearing in order to give the defendant time to prepare.

On November 5, 1990, the Court held an additional discovery hearing. The defendant again asked for a continuance in order to prepare a response. The Court informed the defendant that no response was mandated inasmuch as the motions to be addressed were filed on his behalf by prior counsel. At that hearing it became apparent to the Court that the defendant was incapable of understanding the content of his own motions. It was further obvious that no reasonable delay would be sufficient in order to permit an individual with his limited education to adequately prepare to argue his own motions. Furthermore, at the hearing the defendant's veracity came into question and his severe speech impediment proved to be an insurmountable obstacle in addressing the Court and arguing his case.

By Opinion and Order dated November 13, 1990, the Court, in the interest of the defendant and his co-defendants, elevated Attorney Cline to Lead Counsel. Attorney Cline moved the Court for a continuance from the December 3, 1990, trial date, to enable Attorney Cline to adequately prepare the case for trial. The case was continued, and a trial date of January 28, 1991, was set.

On December 19, 1991, a Notice of Appearance of Counsel was filed by Attorney Anthony F. Gonzales of Tampa, Florida. The notice advised the Court that Attorney Gonzales would be appearing as counsel for Defendant Cunningham and notified the Court that Attorney Weiner would be acting as local counsel for Defendant Cunningham. Pursuant to the notification concerning Attorney Weiner acting as local counsel, and the fact that the notice appeared to be in direct contradiction with the Court's October 10, 1990, Opinion and Order, the Government filed a Request to Clarify Status of Counsel. The Court held a conference, on the record, in chambers, with Assistant United States Attorney Michael Burns, Attorney Samuel B. Weiner and Attorney Anthony Gonzales present. At the conference Attorney Gonzales renewed his notice of appearance. The Court recognized and noted Attorney Gonzales' representation of Defendant Cunningham, however, the Court further noted and advised all counsel that the late appearance of new counsel for the defendant would not be a basis for continuing the January 28, 1991, trial date. In an Order dated January 11, 1991, the Court reiterated that Attorney Weiner was disqualified from any form of representation of Defendant Cunningham, and provided that counsel are "advised to be prepared to go forward on the scheduled trial date of January 28, 1991."

Since the conference in chambers, Attorney Gonzales has filed the previously mentioned motions. The government has filed responses, and the Court will now turn its attention to these matters.

DEFENDANT CUNNINGHAM'S MOTION FOR SEVERANCE AND FOR SEPARATE TRIALS

The defendant files his motion pursuant to Federal Rules of Criminal Procedure 8 and 14. Rule 8 provides in relevant part as follows:

(b) Joinder of Defendants. Two or more defendants may be charged in the same indictment or information 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. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

In reviewing joinder under Rule 8(b), the primary consideration is "whether joinder will serve the goal of trial economy and convenience." Baker v. United States, 401 F.2d 958, 971 (D.C.Cir.1968), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970), quoted in United States v. Franks, 511 F.2d 25, 29 (6th Cir.1975), cert. denied, 422 U.S. 1042, 95 S.Ct. 2656, 45 L.Ed.2d 693 (1975).

The United States Court of Appeals for the Sixth Circuit has stated that Rule 8(b) should be "broadly construed in favor of initial joinder." Franks, at 29. As stated by the Court in United States v. Frazier, 584 F.2d 790, 795 (6th Cir.1978), the "jury must be presumed capable of sorting out the evidence and considering the case of each defendant separately." United States v. Mitchell, 556 F.2d 371 (6th Cir. 1977), cert. denied, 434 U.S. 925, 98 S.Ct. 406, 54 L.Ed.2d 284 (1977). Moreover, as a general rule, particularly in conspiracy cases, defendants who are jointly indicted should be tried together in the same proceeding. United States v. Dempsey, 733 F.2d 392, 398 (6th Cir.1984). However, the mere fact that a conspiracy has not been charged does not indicate that there is a misjoinder. United States v. Reed, 647 F.2d 678 (6th Cir.1981), cert. denied, 454 U.S. 837, 102 S.Ct. 142, 70 L.Ed.2d 118 (1981); United States v. Russo, 480 F.2d 1228 (6th Cir.1973), cert. denied, 414 U.S. 1157, 94 S.Ct. 915, 39 L.Ed.2d 109 (1974).

Rule 14 addresses the severance of joint defendants as a matter of sound judicial discretion. See, e.g., Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208 (1894). The text of the rule provides as follows:

If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants ... the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.

The defendant carries the heavy burden of demonstrating specific and compelling prejudice, prejudice that may only be cured by a separate trial. United States v. Warner, 690 F.2d 545 (6th Cir.1982). The defendant must demonstrate that the "antagonism between co-defendants will mislead or confuse the jury." United States v. Vinson, 606 F.2d 149, 154 (6th Cir.1980), cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980). It should further be noted that claims that evidence may be admissible against one defendant but not the other are not sufficient to justify severance. Warner, 690 F.2d at 545; United States v. Gay, 522 F.2d 429 (6th Cir.1975). Likewise, the fact that one defendant is more culpable than another defendant is insufficient to allow severance. Franks, 511 F.2d at 25.

Upon review of the Defendant's request for severance and in light of the case law previously cited, this Court is of the opinion that all parties were the subject of proper joinder and that severance in the instant matter is not warranted. Therefore, the Defendant's Motion for Severance is hereby DENIED.

MOTION TO DISMISS THE INDICTMENT (DOC. 39)

The defendant has filed a motion requesting the Court to dismiss the indictment based upon a variety of arguments. The first argument by the defendant is that Count One of the indictment fails to sufficiently allege an offense against the United States since it does not specifically set forth the time span of the conspiracy alleged and that the count fails to specifically and adequately describe the locale of the alleged offense.

Count one of the indictment...