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UNITED STATES v. SIGALOW

January 3, 1986

UNITED STATES OF AMERICA
v.
ALVIN SIGALOW, Defendant



The opinion of the court was delivered by: EDELSTEIN

OPINION AND ORDER

EDELSTEIN, District Judge:

Defendant Alvin Sigalow ("Sigalow") is charged with one count of conspiring to defraud the government in violation of Title 18, Section 371 of the United States Code and one count of using interstate facilities, including the mail, to promote, manage, establish and carry on the two prostitution enterprises in violation of Title 18, Section 1952 of the United States Code. Sigalow has moved to sever the two counts of the indictment pursuant to Rules 8, 12(b)(5), and 14 of the Federal Rules of Criminal Procedure. Defendant's motion is hereby denied.

 BACKGROUND

 Sigalow is charged in Count One of the Indictment with conspiring to defraud the United States by impeding and obstructing the Internal Revenue Service from determining and collecting the tax obligations of two alleged prostitution enterprises. Count Two of the Indictment charges Sigalow with a violation of the "Travel Act." Specifically, the defendant is charged with the use of interstate facilities, including the mail, to promote, manage, establish and carry on the two alleged prostitution enterprises.

 Defendant moves to sever Counts One and Two claiming

 1) that the charges in Counts One and Two are "completely unrelated"; and

 2) that he will be prejudiced if both counts are tried together.

 DISCUSSION

 A. Relationship of Counts One and Two

 Rule 8(a) of the Federal Rules of Criminal Procedure provides:

 Two or more offenses may be charged in the same indictment . . . in a separate count for each offense if the offenses charged . . . are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

 Fed. R. Crim. P. 8(a). Defendant claims that the two counts are not connected and must be severed pursuant to the rule. Sigalow asserts that the crimes charged are of a different character, are based on distinct acts and in no way constitute a common plan. Defendant relies on United States v. Halper, 590 F.2d 422 (2d Cir. 1978), and Deluca v. United States, 299 F. 741 (2d Cir. 1924), to support this claim. Both of these cases are inapposite. In United States v. Halper, the court found that the joinder of two separate indictments, one charging several counts of Medicaid fraud and the other charging tax evasion, was improper. 590 F.2d at 428-31. In Halper, the sole basis for joinder was that the offenses were of the same or similar character. Id. at 430. This contention was rejected by the court. Id. The government in this case does not rely on this basis for joinder. Rather the government asserts that the two counts are "based on the same series of connected acts and transactions undertaken by . . . Sigalow [and his alleged coconspirators], all of which related to the operation of the [two alleged prostitution enterprises]." Memorandum of Law in Opposition to Defendant's Motion to Sever at 4-5. [hereinafter cited as Memo in Opposition].

 Similarly, Deluca v. United States, offers little guidance. The court found that the evidence relating to a charge of conspiring to defraud the United States of import duties owed on shipments of opium was not the same as the evidence relating to a second charge for the illegal sale of opium. 299 F.2d at 745. ...


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