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U.S. v. ALEGRIA

April 11, 1991

UNITED STATES OF AMERICA
v.
MARIO ALEGRIA, VICTOR PENA, RAFAEL MERCEDES, GEORGE ESPINAL, AND ALAN RAPHAEL, DEFENDANTS.



The opinion of the court was delivered by: Sweet, District Judge.

OPINION

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.

The Parties

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 and ammunition.

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.

Discussion

The Rule 8(b) 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 ...


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