the same series of acts as the conspiracy to alter VIN number.
Proof of the VIN alteration conspiracy at trial will,
moreover, further an understanding of the insurance fraud
scheme under the standard set forth in Biaggi. The existence of
the VIN alteration conspiracy, in which Raphael was allegedly
involved however tangentially, explains Raphael's alleged
actions in reporting the car stolen and helps prove that the
alleged report of theft was indeed fraudulent.
In support of his position that joinder in this case is
impermissible under Rule 8(b), Raphael cites a number of cases
in other circuits, in which courts have held joinder of
defendants is improper where the offenses are unconnected. In
United States v. Satterfield, 548 F.2d 1341 (9th Cir. 1977),
the Court of Appeals for the Ninth Circuit found prejudicial
error in the joinder of a defendant who participated in only
two bank robberies with a co-defendant whose illegal activities
included three additional bank robberies. The indictment,
however, did not allege that these robberies were part of a
conspiracy. See Schaffer v. United States, 362 U.S. 511, 514,
80 S.Ct. 945, 947, 4 L.Ed.2d 921 (1960) (initial joinder of
defendants proper prior to dismissal of conspiracy count at
close of government's case).*fn2
In United States v. Gentile, 495 F.2d 626 (5th Cir. 1974),
the Court of Appeals for the Fifth Circuit found a misjoinder
under Rule 8(b) where the indictment alleged a conspiracy to
possess and distribute drugs in counts one and two, but in
counts three and four charged only one defendant in a separate
narcotics offense. The Court of Appeal's holding that the
allegation of a conspiracy was not sufficient to join the
narcotics charges against only one defendant relied on the fact
that the overt acts in the conspiracy did not relate to the
defendant's distribution of the drug that was the subject of
the separate narcotics charge. Moreover, the Court of Appeals
found, the record at trial did not disclose the existence of an
enduring conspiracy; the court found that the alleged
conspiracy to distribute drugs related to one incident only. In
the instant case, by contrast, the conspiracy count alleges the
existence of Raphael's alleged insurance fraud scheme, and
includes Raphael's actions relating to the Jaguar among the
overt acts. Moreover, based on the indictment, the alleged
conspiracy endured for several weeks and included several overt
acts. The holding in Gentile, therefore, does not require
severance of Raphael's trial in this case.
Based on the holdings in Cervone and Biaggi, counts 16-18 of
the indictment, alleging the fraudulent scheme to obtain
insurance, fall within the same series of acts as the VIN
conspiracy charged in the earlier counts, where Raphael is
alleged as a member of the conspiracy and where proof of the
VIN alteration conspiracy will help provide understanding as to
the allegedly fraudulent insurance scheme. Therefore, for the
foregoing reasons, Raphael's Rule 8(b) motion is denied.
The Rule 14 Motion
Raphael also contends that severance should be granted under
Rule 14, which provides for severance if a defendant is
prejudiced by a joinder of defendants or offenses. Raphael
asserts such prejudice would result from the gradual
accumulation of the evidence relating to the alleged VIN
alteration scheme and spill over onto Raphael as he defends
himself against the insurance fraud charges.
The decision whether to grant a severance is "'committed to
the sound discretion of the trial judge.'" United States v.
Benitez, 920 F.2d 1080, 1085 (2d Cir. 1990) (quoting United
States v. Casamento, 887 F.2d 1141, 1149 (2d Cir. 1989), cert.
denied, ___ U.S. ___, 110 S.Ct. 1138, 107 L.Ed.2d 1043 (1990)).
Where "spillover evidence" is alleged as the grounds for Rule
14 severance, the defendant's burden is heavy. See
United States v. Villegas, 899 F.2d 1324, 1347 (2d Cir. 1990)
(burden of defendant appealing trial court's denial of
severance based on "prejudicial spillover." "extremely heavy").
The defendant requesting severance must show substantial
prejudice resulting from joinder, not just that he would have a
better chance for acquittal at a separate trial. United States
v. Torres, 901 F.2d 205, 230 (2d Cir. 1990).
The cases on which Raphael relies for the proposition that
spillover evidence accumulated during proof of the case against
co-defendants may be prejudicial came before the Second Circuit
on appeal after trial. In United States v. Branker,
395 F.2d 881 (2d Cir. 1968), the Second Circuit considered this question
after the dismissal by the trial court of the conspiracy counts
against the defendants. In United States v. Kelly, 349 F.2d 720
(2d Cir. 1965), cert. denied, 384 U.S. 947, 86 S.Ct. 1467, 16
L.Ed.2d 544 (1966), the Court of Appeals' decision reversing
the conviction of several co-defendants relied on a number of
factors in addition to "spillover evidence," including
erroneously admitted testimony inculpating the relevant
defendants, without which the evidence supporting conviction
would have been insufficient. There are no such allegations in
the instant case.
Moreover, some of the evidence relating to the alleged VIN
alteration conspiracy would be admissible against Raphael,
insofar as such evidence relates to the overt acts alleged
against both Raphael and Alegria. See United States v. Scarpa,
913 F.2d 993, 1013-14 (2d Cir. 1990). In Scarpa, the Court of
Appeals affirmed on Rule 14 grounds the trial court's denial of
severance to a defendant where much of the evidence against the
co-defendants would have been admissible against
appellant-defendant, and where appellant-defendant's alleged
extortion — the offense alleged solely against him which he
had requested to be severed from the drug trafficking
conspiracy count — was result of the extortion victim's
involvement in the alleged drug conspiracy. In the instant
case, there exists a similar connection between Raphael's
allegedly fraudulent report of the Jaguar's theft to his
insurers and the alleged VIN alteration scheme, in that the
alleged fraud occurred in conjunction with the alleged
alteration conspiracy with respect to the Jaguar.
Where the burden for showing prejudice in a rule 14 motion
based on "spillover evidence" is high, and where there is some
connection between the alleged conspiracy and the counts that
charge Raphael alone such that some overlap of evidence can be
anticipated at trial, Raphael has not carried his burden for
showing a single trial to be prejudicial. The Rule 14 motion is
For the reasons set forth above, Raphael's Rule 8(b) and Rule
14 motions are denied.
It is so ordered.