The opinion of the court was delivered by: Leisure, District Judge.
Defendants are charged in a five count superseding indictment
now before this Court. Defendants Stephen Anthony Brown
("Brown") and Carl Wilson ("Wilson") are charged in Counts One
through Four of the indictment with conspiracy to possess and
distribute cocaine (Count One), and three counts of substantive
distribution or possession with intent to distribute cocaine
(Counts Two, Three, Four). Additionally, Brown is charged with
illegal reentry into the United States after a previous
deportation (Count Five). The defendants have now brought
various pre-trial motions before the Court. Certain of those
motions were addressed by the Court following oral argument on
August 9, 1990.*fn1 Those motions not decided at the hearing
are addressed below.
Defendant Wilson has moved to be severed from defendant
Brown. The Second Circuit has recently stated that
Fed.R.Crim.P. 8(b) provides that "participation of multiple
defendants in the `same act or
transaction,' or the same `series' of such acts, will authorize
a joint trial on common or individual counts." We have
construed this language to mean that joinder is proper where
two or more persons' criminal acts are "`"unified by some
substantial identity of facts or participants," or "arise out
of a common plan or scheme."'" United States v. Cervone,
907 F.2d 332, 341 (2d Cir. 1990) (quoting United States v.
Attanasio, 870 F.2d 809, 815 (2d Cir. 1989)) (quoting United
States v. Porter, 821 F.2d 968, 972 (4th Cir. 1987), cert.
denied, 485 U.S. 934, 108 S.Ct. 1108, 99 L.Ed.2d 269 (1988)).
Generally, where defendants . . . "are jointly indicted
[they] should be jointly tried." United States v. Ventura,
724 F.2d 305, 312 (2d Cir. 1983). This is particularly true where
the crimes charged involves a common scheme or plan. See United
States v. Turoff, 853 F.2d 1037, 1042-43 (2d Cir. 1988); United
States v. Girard, 601 F.2d 69, 72 (2d Cir.), cert. denied,
444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979). The Supreme
Court has unequivocally stated that "[j]oint trials play a
vital role in the criminal justice system." Richardson v.
Marsh, 481 U.S. 200, 209, 107 S.Ct. 1702, 1708, 95 L.Ed.2d 176
The Court notes that motions to sever under Fed.R.Crim.P. 14
are "committed to the sound discretion of the trial judge," and
that it is a defendant's "heavy burden" to:
show facts demonstrating that he will be so
severely prejudiced by a joint trial that it would
in effect deny him a fair trial. The defendant
must demonstrate that he suffered such prejudice
as a result of joinder, not that he might have had
a better chance for acquittal at a separate trial.
United States v. Chang An-Lo, 851 F.2d 547, 556 (2d Cir.)
(citations omitted), cert. denied, 488 U.S. 966, 109 S.Ct. 493,
102 L.Ed.2d 530 (1988). See also United States v. Nersesian,
824 F.2d 1294, 1303 (2d Cir.), cert. denied, 484 U.S. 958, 108
S.Ct. 357, 98 L.Ed.2d 382 (1987) (burden of showing substantial
prejudice amounting to a miscarriage of justice).
"`"[D]iffering levels of culpability and proof are inevitable
in any multiple defendant trial and, standing alone, are
insufficient grounds for separate trials."'" United States v.
Torres, 901 F.2d 205, 230 (2d Cir. 1990) (quoting United States
v. Chang An-Lo, supra, 851 F.2d at 557 (quoting United States
v. Carson, 702 F.2d 351, 366-67 (2d Cir.), cert. denied,
462 U.S. 1108, 103 S.Ct. 2546, 2547, 77 L.Ed.2d 1335 (1983))).
The focus of Wilson's severance motion is the likelihood that
evidence will be introduced against Brown that does not involve
Wilson. Wilson asserts that this evidence will have a
"spillover" effect on him, thus prejudicing his ability to
receive a fair trial. However, the simple fact that evidence
will be introduced against Brown that will not be applicable to
Wilson is not grounds for severance, particularly where the
jury will be instructed as to the proper consideration of the
evidence as it applies to each defendant. See United States v.
Carson, supra, 702 F.2d at 367; United States v. Losada,
674 F.2d 167, 171-72 (2d Cir.), cert. denied, 457 U.S. 1125, 102
S.Ct. 2945, 73 L.Ed.2d 1341 (1982). More importantly, in the
instant case, the face of the indictment indicates that the
vast majority of the crimes charged involve joint action by the
defendants. Thus, most of the evidence will be admissible
against, and applicable to, both defendants. The Court finds
that Wilson has not shown that a joint trial will substantially
prejudice him. Thus, his motion for severance from defendant
Brown is denied.
Defendant Brown moves to have Counts One and Five severed
from the remainder of the indictment. Because these two Counts
are related differently to Counts Two, Three and Four, the
Court will deal with the severance of Counts One and Five
In multi-defendant cases, such as the one now before the
Court, the joinder of offenses must be reviewed under the
standard set forth under Fed.R.Crim.P. 8(b), rather than under
Fed.R.Crim.P. 8(a). United States v. Turoff, supra, 853 F.2d at
1043; United States v. Biaggi, 909 F.2d 662, 675-76 (2d Cir.
1990). Thus, "multiple defendants cannot be tried together on
two or more `similar' but unrelated acts or transactions;
multiple defendants may be tried together only if the charged
acts are part of a `series of acts or transactions constituting
an offense or offenses.'" Id. (citing C. Wright, Federal
Practice and Procedure, § 144, at 508-09 (2d ed. 1982)). Thus,
it is clear that a conspiracy count can be joined with a
substantive offense, if those offenses arise out of the same
series of events or transactions.
In the instant case, it is evident from the face of the
indictment that the Count One is sufficiently related to Counts
Two through Four. The Count One conspiracy includes the entire
time period covered by the three substantive narcotics offenses
alleged in Counts Two through Four. Where an indictment on its
face charges defendants with a conspiracy to commit certain
acts, and also charges commission of such acts within the time
frame of the alleged conspiracy, it may logically be concluded
that the substantive acts were a part of the same series of
acts or transactions alleged in the conspiracy. Further, the
simple fact that one of the overt acts alleged in the
conspiracy is not intimately tied to the substantive offenses
charged in Counts Two through Four does not, in and of itself,
indicate that the conspiracy and the substance offenses did not
arise out of the same series of acts or transactions, as
required by Rule 8(b). Thus, the Court finds that ...