The opinion of the court was delivered by: HAIGHT
MOTIONS TO SEVER DEFENDANTS
Defendants' remaining pretrial motions are hereby resolved.
Motions to Sever Defendants
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 co-conspirator, 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 co-defendant 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, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (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, 16 L. Ed. 2d 544, 86 S. Ct. 1467 (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, 77 L. Ed. 2d 1335, 103 S. Ct. 2456 (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.
Motions to Sever Offenses
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.
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).
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 paras. 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, 50 L. Ed. 2d 608, 97 S. Ct. 523 (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, 66 L. Ed. 2d 91, 101 S. Ct. 209 (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, 34 L. Ed. 2d 219, 93 S. Ct. 268 (1972); United States v. Sweig, 441 F.2d 114, 118-19 (2d Cir.), cert. denied, 403 U.S. 932, 29 L. Ed. 2d 711, 91 S. Ct. 2256 (1971). Although the standard for joinder under Rule 8(b) is "more restrictive" than the Rule 8(a) standard, United States v. Weiss, 491 F.2d 460, 467 (2d Cir.), cert. denied, 419 U.S. 833, 42 L. Ed. 2d 59, 95 S. Ct. 58 (1974); United States v. Granello, 365 F.2d 990, 993-94 (2d Cir. 1966), cert. denied, 386 U.S. 1019, 18 L. Ed. 2d 458, 87 S. Ct. 1367 (1967), joinder of similar charges has also been approved in the Rule 8(b) context. See, e.g., Potamitis, supra, 739 F.2d at 791; United States v. Kopituk, 690 F.2d 1289, 1313-14 (11th Cir. 1982), cert. denied sub nom. Williams v. United States, 461 U.S. 928 (1983) and cert. denied, 463 U.S. 1209, 77 L. Ed. 2d 1391, 103 S. Ct. 3542 (1983); United States v. Carmichael, 685 F.2d 903, 910 (4th Cir. 1982), cert. denied, 459 U.S. 1202, 75 L. Ed. 2d 434, 103 S. Ct. 1187 (1983); United States v. Barney, 568 F.2d 134, 135-36 (9th Cir.), cert. denied, 435 U.S. 955, 55 L. Ed. 2d 806, 98 S. Ct. 1586 (1978); United States v. Nelson, 606 F. Supp. 1378, 1387-88 (S.D.N.Y. 1985); United States v. Hilliard, 436 F. Supp. 66, 74 (S.D.N.Y. 1977); cf. United States v. Weiss, 491 F.2d 460, 467 (2d Cir.), cert. denied, 419 U.S. 833, 42 L. Ed. 2d 59, 95 S. Ct. 58 (1974). Since the Government contends that Jones' trip to Birmingham and Blackmon's allegedly false statement will both be shown to be directly connected to the underlying scheme to defraud, Counts 33 and 34 are not misjoined under Rule 8(b).
The same cannot be said of Count 35, which charges Jones and Blackmon with possession of cocaine. The cocaine that is the subject of this charge was allegedly seized in the search of the Mosholu Parkway apartment, in which evidence and paraphernalia relating to the confidence scheme were also seized. The Government does not assert that the cocaine played any role in the scheme to defraud or that it bears any relation whatsoever to the charges contained in the remaining counts; consequently, it cannot be said to be part of "the same series of acts or transactions" as the scheme to defraud that is the subject of this indictment. It is therefore misjoined and must be severed. Hilliard, supra, 436 F. Supp. at 72.
Defendants move for discretionary severance of Counts 31-34 under Rule 14, F.R.Crim.P., on the ground that the cumulative effect of these allegedly "unrelated" charges involving only Jones and Blackmon is creation of a risk that the jury will infer a criminal disposition on the part of those two defendants and find the other defendants guilty by association with them. The motion is denied.
Counts 31 and 32, which allege commission by Jones and Blackmon of substantive crimes in furtherance of the conspiracy with which all defendants are charged in Counts 1-30, can hardly be said to be unrelated; they are part and parcel of that scheme and are properly tried together with those counts. There is nothing inherently inflammatory or prejudicial about the evidence that will be introduced to prove those charges, i.e., identification documents and credit cards. Moreover, the nature of those charges, i.e., unlawful possession, is sufficiently simple that I am confident that with appropriate instructions from the Court, the jury will be able to compartmentalize the evidence as appropriate and render a fair verdict against each defendant individually.
Counts 33 and 34 concern post-conspiracy acts by Jones and Blackmon allegedly done to conceal the fruits of the conspiracy. The indictment does not allege, nor does the Government now assert, that those acts of concealment were objectives of the conspiracy. Whether evidence concerning those acts will be admissible only against those two defendants or also against the remaining co-conspirators is a matter of dispute between the Government and defense counsel. Nevertheless, "the fact that evidence may be admissible against one defendant but not another does not necessarily require a severance." Carson, supra, 702 F.2d at 367; United States v. Losada, 674 F.2d 167, 171 (2d Cir.), cert. denied, 457 U.S. 1125, 102 S. Ct. 2945, 73 L. Ed. 2d 1341 (1982). "The test is whether under all the circumstances of a particular case, the jurors have the capacity to follow the trial court's instructions and 'appraise the independent evidence against each defendant solely upon that defendant's own acts, statements and conduct." 8 Moore's Federal Practice para. 14.04 at 14-41 (1985). Much of the evidence that the Government will seek to offer in support of Counts 33 and 34 will be admissible against Blackmon and Jones respectively to prove their participation in the conspiracy alleged in Counts 1-32. Whatever additional evidence will be required to prove the charges in Counts 33 and 34 appears to be sufficiently simple and distinct that the jury will not be unduly confused. Should the likelihood of confusion become apparent during the course of the trial, counsel may renew their motions for severance of these counts at that time.
I view as unrealistic and improbable Blackmon's fear of spillover prejudice from Count 33 on the ground that the jury will become aware that he "has been provided with a free attorney, in fact two free attorneys, at the expense of the taxpayers." (Letter from Blackmon's counsel dated May 13, 1986). In a very real sense, every prosecution and possible conviction costs the taxpayers money, but one would ordinarily not expect the jurors to consider that fact in assessing a defendant's guilt or innocence, and I see no reason to expect that they will do so here.
In sum, Count 35 is severed for separate trial on grounds of misjoinder under Rule 8(b), F.R.Crim.P. Defendants' motions to sever Counts 31-34 are denied without prejudice to renewal during the course of trial.
Motions to Dismiss Count 5
Ogletree and Stephens join in the motion of Jones to dismiss Count 5 on the authority of United States v. Archer, 486 F.2d 670 (2d Cir. 1973). For the reasons stated in the Court's earlier opinion dated April 9, 1986, denying Jones' motion, (slip op. at 3), the motion is denied at present, without prejudice to renewal at trial.
Various defendants move to suppress pretrial identifications made from photospreads or from a voice spread, and to suppress certain telephone records.
Suppression of telephone records
Ogletree moves to suppress the telephone records of a Wilma Moss. Moss and Ogletree were co-owners at one time of a house located in Queens. Ogletree asserts that the Government learned of the existence of Ms. Moss only through information disclosed by Ogletree at his pretrial services interview prior to arraignment on these charges. He states that he was promised that information provided by him at that time would not be used against him "in any way" to establish his guilt or lack of guilt, and that the Government's use of these telephone records stems from a breach of that promise.
In response, the Government has submitted a copy of a grand jury subpoena duces tecum dated January 14, 1986, requesting telephone records from January 1, 1985 to the date of the subpoena for, inter alia, the telephone number assigned to Wilma Moss. (Government's Supplemental Brief, Exhibits 1 and 2).
The subpoena was returnable on January 28, 1986. Ogletree was not indicted until February 25, 1986. His pre-trial services interview occurred in mid-March. In consequence, it cannot be said that the Government's initial interest in these telephone records was the result of its improper use of the privileged information given by Ogletree to pre-trial services.
The subpoena also requested the subscriber information for that telephone number, which would have revealed to the Government the existence of Ms. Moss. Nevertheless, Ogletree argues that even with an interest in that telephone number and knowledge that it was assigned to Ms. Moss, the Government might not have been able to connect that information to him were it not for his disclosures concerning Ms. Moss in his pretrial services interview; thus the link that demonstrates the relevance of those records to Ogletree may be the privileged information.
On the record as it now stands, I cannot determine whether Ogletree's fears are groundless or well-founded. Therefore, if the Government intends to connect these telephone records at trial to Mr. Ogletree, I direct the Assistant United States Attorney in charge of this prosecution to submit an affidavit explaining how the Government made that connection and the source of the information upon which it relied. The affidavit must be served and filed not later than the close of business on June 6, 1986.
Decision on Ogletree's motion to suppress the telephone records of Wilma Moss is reserved pending receipt of ...