US v. Jones
| Decision Date | 03 June 1986 |
| Docket Number | No. SS85 Cr. 1075-CSH.,SS85 Cr. 1075-CSH. |
| Citation | 652 F. Supp. 1561 |
| Parties | UNITED STATES of America, v. Sidney JONES, et al, Defendants. |
| Court | U.S. District Court — Southern District of New York |
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Rudolph L. Giuliani, U.S. Atty. for S.D. N.Y., New York City, for U.S.; Baruch Weiss, Asst. U.S. Atty., of counsel.
Barry Krinsky, Brooklyn, N.Y., for defendant Jones.
Douglas F. Eaton, New York City, for defendant Blackmon.
John Doar Law Offices, New York City, for defendant Ogletree; Michael S. Devorkin, of counsel.
John McQuigan, Atlanta, Ga., for defendant Roland.
Robert L. Herbst, New York City, for defendant Stephens.
Defendants' remaining pretrial motions are hereby resolved.
Defendants Stephens and Roland move for separate trials of the charges contained against them in this indictment.
Stephens concedes that his motion is premature, but raises the issue before trial, pursuant to Rule 12(b)(5), F.R.Crim.P., to preserve the point in case sufficient grounds for severance appear as the joint trial begins. His motion is denied at this time, without prejudice to renewal at trial.
Roland's contention that the charges against her are misjoined with the charges against the other defendants, under Rule 8(b), F.R.Crim.P, is unavailing. She asserts "that she is unaware of any transactions with any of the victims of the fraudulent scheme except possibly Simone Putnam" (Roland brief at 5), and that "there will be absolutely no evidence that will connect her with the Defendants Sidney Jones, Derek Blackmon, Larry Ogletree, ... or their illegal activities." (Brief at 3). The indictment, however, charges Roland with having participated in substantive offenses involving seven of the nine actual or intended victims; she is named in 24 of the 35 counts. "In the absence of an argument of prosecutorial bad faith ..., allegations of an indictment will be accepted as true in deciding a rule 8(b) motion." United States v. Levine, 546 F.2d 658, 663 (5th Cir.1977). As an alleged coconspirator, Roland is properly joined in the indictment. United States v. Barlin, 686 F.2d 81, 91 (2d Cir.1982). Her motion for severance on grounds of misjoinder is denied, without prejudice to renewal during trial.
Roland's motion for discretionary severance under Rule 14, F.R.Crim.P., is also denied for failure to show that she would be substantially prejudiced by a joint trial with her alleged co-conspirators. Her conclusory and speculative statement that it is "highly possible" that her defenses may be antagonistic to those of her co-defendants (Brief at 9) falls far short of the showing required for severance. "Where the defendant fails to `show the nature of his defense ... and in what respect, if any, his defense is inconsistent with or antagonistic to that of his co-defendants' there is no basis for severance." United States v. Wheaton, 463 F.Supp. 1073, 1077 (S.D.N. Y.), aff'd mem. sub nom. United States v. Williams, 614 F.2d 1293 (2d Cir.1979), citing United States v. Marquez, 319 F.Supp. 1016, 1018 (S.D.N.Y.1970). Her equally speculative assertion that she might wish to testify with regard to certain counts but not others provides no basis for severance in the absence of a particularized showing of the testimony she wishes to give on one or more counts, and her reasons for remaining silent on the joined counts. United States v. Werner, 620 F.2d 922, 930 (2d Cir.1980). Roland's claim that her defense may be impaired "in the event a codefendant possesses excupatory information" with regard to her but that co-defendant would refuse to testify at a joint trial (Brief at 10) is similarly unsupported by an adequate factual showing, United States v. Bari, 750 F.2d 1169, 1177 (2d Cir.1984), cert. denied sub nom. Benfield v. United States, 472 U.S. 1019, 105 S.Ct. 3482, 87 L.Ed.2d 617 (1985), as is her claim that severance is required under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Given the extensive participation of Roland in the fraudulent scheme which is alleged in the indictment, severance is not required at this time on the ground that she is a mere minor and peripheral participant in the scheme who would be subject to the prejudicial spillover effect of evidence concerning the extensive involvement of her co-defendants. Compare, United States v. Kelly, 349 F.2d 720, 756 (2d Cir.1965), cert. denied, 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966). Roland's contention that the proof at trial may show multiple separate conspiracies rather than the single conspiracy alleged in the indictment is an argument properly made at the conclusion of the Government's case-in-chief, not in a pretrial motion. Finally, I see nothing inherently prejudicial to Roland if the jury learns that a co-defendant, Tyrone Stephens, is the father of one of her children. No rule forbids family members charged in the same indictment from being tried together. See, e.g., United States v. Potamitis, 739 F.2d 784 (2d Cir.) cert. denied, 469 U.S. 934, 105 S.Ct. 332, 83 L.Ed.2d 269 (1984) and cert. denied sub nom. Argitakos v. United States, 469 U.S. 918, 105 S.Ct. 297, 83 L.Ed.2d 232 (1984) (father and son); United States v. Carson, 702 F.2d 351, 367 (2d Cir.), cert. denied sub nom. Mont v. United States, 462 U.S. 1108, 103 S.Ct. 2456, 77 L.Ed.2d 1335 (1983) (two brothers); United States v. Barton, 647 F.2d 224, 241 (2d Cir.), cert. denied, 454 U.S. 857, 102 S.Ct. 307, 70 L.Ed.2d 152 (1981) (husband and wife). For the foregoing reasons, Roland's motion for severance under Rule 14 is denied, without prejudice to renewal at trial.
Defendants move to sever the trial of Counts 31-35 from the trial of Counts 1-30 on grounds of misjoinder, under Rule 8(b), F.R.Crim.P., or prejudicial joinder, under Rule 14, F.R.Crim.P.1
Defendants initially contend that Counts 31-35 are not part of "the same series of acts or transactions" as the first 30 counts of the indictment, as required for proper joinder by Rule 8(b).2
The first count in the indictment charges all defendants with conspiring to obtain money from certain elderly women by various fraudulent means. It is alleged that the objectives of the conspiracy included the unlawful possession of credit cards and identification documents. (Indictment ¶¶ 1(c) and (d)) Counts 31 and 32 charge two of the alleged co-conspirators, Sidney Jones and Derek Blackmon, with having committed those particular substantive offenses. It appears that the Government's theory is that Jones and Blackmon committed those offenses in furtherance of the conspiracy charged in Count One, especially since one of the overt acts alleged in the conspiracy count is the substantive offense charged in Count 31.
"Joinder of a conspiracy count and the substantive counts arising out of the conspiracy is proper since the charge of conspiracy provides a common link and demonstrates the existence of a common plan." United States v. Bernstein, 533 F.2d 775, 789 (2d Cir.) cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976); see also, United States v. Persico, 621 F.Supp. 842, 851 (S.D.N.Y.1985). It matters not that only Blackmon and Jones are charged in Counts 31 and 32. Rule 8(b) expressly states that "all of the defendants need not be charged in each count." Joinder is appropriate where some, but not all, of the defendants participated in certain acts or transactions, but those activities were undertaken in furtherance of the larger conspiracy with which all defendants are charged. See, e.g., Barton, supra, 647 F.2d at 239-240; United States v. Weisman, 624 F.2d 1118, 1129 (2d Cir.), cert. denied, 449 U.S. 871, 101 S.Ct. 209, 66 L.Ed.2d 91 (1980); Persico, supra, 621 F.Supp. at 851. Ogletree's contention that there is no proof establishing that the other defendants knowingly agreed that those activities (i.e. unlawful possession of such materials) were objectives of the conspiracy is an argument better made at trial. See Levine, supra, 546 F.2d at 663. I therefore conclude that Counts 31 and 32 are properly joined under Rule 8(b).
Count 33 charges that on November 7, 1985, immediately after his arrest and the termination of the alleged conspiracy, defendant Blackmon submitted a false financial affidavit to this Court in order to obtain court-appointed counsel. The indictment alleges that Blackmon falsely stated that he had "no cash on hand" when in fact he had approximately $41,000 in cash in a safe deposit box at a local bank. Count 34 charges that the next day, on November 8, 1985, defendant Jones traveled to Birmingham, Alabama to visit a safe deposit box there, in violation of a court order that he not leave the Southern and Eastern Districts of New York. The Government asserts that its proof at trial will show that money obtained from the fraudulent scheme charged in the indictment ("fruits of the conspiracy") was stored in these safe deposit boxes. The Government contends that Blackmon's post-conspiracy false statement and Jones' post-conspiracy disobedience of a lawful order were acts done in order to conceal the fruits of the fraudulent scheme.
The crucial question is whether such acts of concealment may be said to be part of "the same series of acts or transactions constituting an offense or offenses" within the meaning of Rule 8(b).
Charges of attempted concealment or cover-up of a crime have been held to be sufficiently connected with the crime itself to permit joinder under Rule 8(b), which governs the joinder of offenses against a single defendant. See United States v. Carson, 464 F.2d 424, 436 (2d Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 268, 34 L.Ed.2d 219 (1972); United States v. Sweig, 441 F.2d 114, 118-19 (2d Cir.), cert. denied, 403 U.S. 932, 91 S.Ct. 2256, 29 L.Ed.2d 711 (1971). Although the standard for joinder under Rule 8(b) is "more...
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