March 6, 1980
UNITED STATES OF AMERICA, APPELLEE,
ANTHONY M. SCOTTO AND ANTHONY ANASTASIO, APPELLANT
Before Oakes and Meskill, Circuit Judges, and Bonsal, District Judge.*fn*
Order ON PETITION FOR REHEARING BY APPELLANT ANTHONY ANASTASIO
Treating appellant's motion under Rule 8(b) as properly and timely made, it was properly denied. This is true because, as required by Rule 8(b), the appellants were "alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." "All of the defendants need not be charged in each count." Fed.R.Crim.P. 8(b). As Judge Stewart pointed out in his memorandum decision, No. 79 Cr. 32 at 7 (S.D.N.Y. Jan. 1, 1980), appellant Anastasio was named alone in twenty counts out of sixty and jointly with appellant Scotto in three substantive counts. Also, Count 50, which charges them with conspiracy, incorporated the allegations in Counts 35-49 (all of which name appellant Anastasio) as "describing some of the means by which the defendants committed the offenses charged."
Put another way, appellant would have no objection under Rule 8(b) if the counts involving Scotto alone (1-34 and Scotto's income tax counts) had been severed (under Rule 14 or otherwise), thereby resulting in two trials for Scotto. But these counts were part of the series of acts committed by Scotto constituting offenses in a substantial number of which Anastasio directly participated and as to a substantial number of which he conspired.
Accordingly, the petition for rehearing is denied.