members of the alleged conspiracy according to Overt Acts (x), (z), (aa), (cc), (dd), (ee), (ff), and (hh). Defendant Cannon argues that it is "inherently unfair to join Randall Cannon . . . in such a violent and broad ranging charge of conspiracy," because "gross prejudice" would result from the spillover effect of the evidence of numerous homicides and narcotics activity charged in the other overt acts. Lavine Aff. PP4, 8.
Defendant Stephanie Romero makes essentially the same arguments concerning prejudice. Stephanie Romero is listed in four of the thirty-five overt acts alleged in Count One of the superseding indictment. In Overt Acts (r), (u), (w), and (y), Ms. Romero is alleged to have been present at several meetings and to have received money from unindicted co-conspirator Joseph Pratt. She also claims the added prejudice of being Eugene Romero's wife.
The Government argues that Mr. Cannon and Ms. Romero did not play minor roles in the conspiracy. It also points out that the allegations of each Defendant's role in the indictment are compartmentalized and therefore the likelihood of prejudicial spillover small. The Government stresses that the jury would learn that Eugene Romero is Stephanie Romero's husband even if Ms. Romero were tried separately.
Defendant Cannon cites United States v. Kelly, 349 F.2d 720, 759 (2d Cir. 1965), cert. denied, 384 U.S. 947, 16 L. Ed. 2d 544, 86 S. Ct. 1467 (1966), in which the court held that the gradual accumulation of evidence against the principal members of a conspiracy to violate the securities laws required a separate trial for a minor participant who joined the conspiracy at a later stage. Mr. Cannon also relies on United States v. Gilbert, 504 F. Supp. 565 (S.D.N.Y. 1980), in which he asserts that the court granted a severance under circumstances "less compelling" than those here. In Gilbert, however, the court found that the defendant was "not readily distinguishable [from his codefendant], in character or the nature of his involvement" in a securities conspiracy. Id. at 571. Therefore the court found that the risk of evidentiary spillover was great. Id.
If Randall Cannon and Stephanie Romero are tried separately, the Government is certain to introduce virtually the same evidence of the conspiracy in which these Defendants are alleged to have taken part. The jury would hear in great detail about Eugene Romero's drug trafficking activities and the rationale for the homicides alleged to have been undertaken in furtherance of these activities. Taking into account the concerns of judicial economy, the adducing of this proof at separate trials would require "enormous duplication" in the presentation of evidence. For example, the prosecution would be required at both trials to play recordings of telephone conversations between Eugene and Stephanie Romero made while Eugene Romero was confined at Lewisburg. Gov. Hem. in Opp. at 36-37; cf. Richardson v. Marsh, 481 U.S. 200, 209-10, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1987) (it would impair efficiency and fairness to require separate trials for conspiracy for members of large narcotics organizations in light of inconvenience and trauma of requiring witnesses to repeat testimony and advantage of "last-tried defendants" in knowing prosecution's case beforehand). The fact that Randall Cannon and Stephanie Romero are named in only a few overt acts, ones in which their role is arguably limited, reduces the likelihood that the jury will find it difficult to compartmentalize the evidence that relates to Mr. Cannon and Ms. Romero.
Upon weighing all of these concerns, the Court concludes that Defendants Randall Cannon and Stephanie Romero have not shown a sufficiently high level of prejudice to warrant the inefficiency of separate trials, nor have they demonstrated that separate trials would significantly lessen any prejudice that will occur as a result of evidence the Government will introduce to place the conspiracy in its context.
For the foregoing reasons, Defendants' motions are denied. All Counsel and Defendants are to attend a pretrial conference on March 16, 1992 at 4:00 p.m. in Courtroom 302.
IT IS SO ORDERED.
Dated: New York, New York
March 10, 1992
Robert P. Patterson, Jr.