The opinion of the court was delivered by: Sweet, District Judge.
Defendant Alan Raphael ("Raphael") has moved pursuant to
Rules 8(b) and 14, Fed.R.Crim.P. to sever his trial from that
of co-defendants Mario Alegria ("Alegria"), Rafael Mercedes
("Mercedes"), George Espinal ("Espinal"), and Victor Pena
("Pena"), and, pursuant to Rule 7(f). Additionally, Raphael has
moved pursuant to Rule 16 Fed.R.Crim.P., for the United States
(the "Government") to provide a bill of particulars and further
discovery relating to Counts Sixteen, Seventeen, and Eighteen
of the superseding indictment.
For the reasons set forth below, the motions for severance
are denied. As the Government has already complied with the
request for a bill of particulars and for discovery, those
motions are not properly before the court.
Alegria, Pena, Mercedes, Espinal, and Raphael are the
subjects of a criminal indictment unsealed in the Southern
District of New York on November 14, 1990.
Facts and Prior Proceedings
The indictment of November 14 charged the five defendants, in
nine counts, with altering vehicle identification numbers
("VINs"), possessing vehicles knowing that the VINs had been
altered, transporting stolen vehicles in interstate commerce,
and conspiring with each other and with other unnamed
co-conspirators to commit these offenses. In Counts Ten and
Eleven, the indictment charged Mercedes with possession with
intent to distribute cocaine, and illegal possession of weapons
On February 27, 1991, a grand jury returned a superseding
indictment. The 20 count superseding indictment altered the
charges in the following ways. Instead of charging all five
defendants with VIN altering and trafficking on altered
vehicles with respect to all six cars, the superseding
indictment matched specific defendants to specific cars. In
addition to the conspiracy count, the substantive counts of the
superseding indictment relating to Raphael include: Counts Four
and Ten, charging Raphael and Alegria with the VIN alteration
and possession with intent to sell of a black 1987 Jaguar (the
"Jaguar"); and Counts 16, 17, and 18, which name Raphael as the
sole defendant in an alleged mail and wire fraud scheme to
obtain insurance from a car fraudulently reported as stolen.
Among the motions pending before the court at the time of the
superseding indictment were the defendants' motions for a bill
of particulars, for release of Jencks Act material, for
discovery of the identity of government informants, and
Raphael's motions to sever his trial from that of Mercedes, or
in the alternative, to try separately the last two counts of
the indictment (Counts 19 and 20 of the superseding indictment)
that name only Mercedes in drug and weapons charges.
On March 22, 1991, Raphael filed this motion for severance,
for a bill of particulars, and for further discovery. Oral
argument was heard on April 5, 1991. At oral argument the
parties agreed that since the date of the motion, the
Government had provided the information requested pursuant to
the bill of particulars and discovery motions, with the result
that the only issue before the court is the severance motion.
Rule 8(b) provides that the participation of multiple
defendants in the "same act or transaction," or the same
"series" of such acts, will authorize joint trial on common or
individual counts.*fn1 The Second Circuit has interpreted this
language to mean that joinder is proper where two or more
persons' criminal acts are "unified by some substantial
identity of facts and participants, or arise out of a ...