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August 22, 1990


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.


A) Severance of Parties

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 (1987).

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.

B) Severance of Counts

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 separately.

1) Count One

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 ...

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