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UNITED STATES v. MOLINA

March 27, 1992

UNITED STATES OF AMERICA, Plaintiffs, against JUAN MOLINA, LUIS FRANCISCO CORTEZ, JAIME LUIS FIGUEROA, EDWIN SKERRETT MELENDEZ, MANUEL LOPEZ, and DENITHE RODRIQUEZ, Defendants.


The opinion of the court was delivered by: DENIS R. HURLEY

MEMORANDUM AND ORDER

 HURLEY, District Judge

 In the above-referenced prosecution, defendants are charged with, inter alia, narcotics-related offenses and attempting to interfere with the testimony of a witness in an official proceeding. More particularly, count one charges Juan Molina ("Molina"), Luis Francisco Cortez ("Cortez"), Jaime Luis Figueroa ("Figueroa"), and Edwin Skerrett Melendez ("Melendez"), with conspiracy to possess with intent to distribute heroin, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B)(i). Count two charges Molina, Cortez, Figueroa, and Melendez with attempt to possess heroin with intent to distribute, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B)(i). Count three charges Cortez, Melendez, Manuel Lopez ("Lopez"), and Denithe Rodriguez ("Rodriguez") with attempting corruptly to prevent the testimony of a witness at an official proceeding in violation of 18 U.S.C. § 1512(b)(1). Count four charges Melendez with violating a condition of his bail, in violation of 18 U.S.C. § 3147.

 Defendants currently seek various forms of pretrial relief. Lopez moves for the following: severance of his trial; suppression of certain post-arrest statements; to compel discovery; and to dismiss the indictment based on outrageous government conduct. Figueroa moves for a severance pursuant to Rules 8 and 14 of the Federal Rules of Criminal Procedure. Both Molina and Melendez join in Lopez's motions for severance, discovery, and dismissal of the superseding indictment. Finally, Molina moves pro se for dismissal of the superseding indictment, apparently on the ground that he was entrapped. After a brief statement of the background facts, the Court will address the defendants' motions.

 BACKGROUND

 According to the government, in May of 1991, Molina and Cortez began negotiating with a Chinese heroin supplier ("the supplier") in order to obtain a quantity of heroin. At the time, the supplier was cooperating with the FBI, and it is alleged that defendants' negotiations were monitored, recorded, and surveilled by the FBI. On the date of the planned exchange, Molina, Cortez, Figueroa, and Melendez were arrested in the Chinatown section of Manhattan after completion of the exchange. The following day, the four defendants were arraigned on a complaint, which complaint disclosed that the supplier was cooperating with the government and that the government had, in fact, monitored the transaction. Although each of the four defendants were initially ordered detained, Melendez eventually was released on a bond.

 The government asserts that some of the defendants thereafter devised a scheme to locate and kill the cooperating supplier. Since Melendez was the only one of the four arrested who was released pending trial, the plan allegedly was to use Melendez and certain family members of the detained defendants to find an assassin and locate the supplier. To that end, it is asserted that Molina's brother-in-law, defendant Lopez, approached an individual known as "Ritchie," whose girlfriend was acquainted with Cortez' wife, defendant Rodriguez. When Lopez ultimately explained to "Ritchie" the reason they were looking for the cooperating supplier, "Ritchie" notified the FBI.

 On September 30, 1991, a meeting was arranged at which "Ritchie" introduced Lopez and Melendez to an undercover detective who was posing as a corrupt police officer. At one point during that meeting, Lopez explained the objective of the scheme, and Melendez provided a description of the supplier. That meeting was tape recorded, photographed and surveilled by the FBI. Although the undercover detective attempted to arrange additional meetings, Lopez refused. The FBI subsequently arrested Lopez and Rodriguez and re-arrested Melendez in connection with the scheme to locate the supplier. The government alleges that after their arrests, defendants were advised of their Miranda rights and given the opportunity to make statements.

 DISCUSSION

 Severance

 Lopez and Figueroa move for severances. *fn1" It is first argued that joinder of the defendants in this case is violative of Rule 8(b) of the Federal Rules of Criminal Procedure. Rule 8(b) provides that:

 Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

 Fed. R. Crim. P. 8(b); see also United States v. Cervone, 907 F.2d 332, 341 (2d Cir. 1990), cert. denied, 111 S. Ct. 680, 112 L. Ed. 2d 672 (1991). In Cervone, the Second Circuit noted that in construing Rule 8(b) "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.'" 907 F.2d at 341 (quoting United States v. Attanasio, 870 F.2d 809, 815 (2d Cir. 1989)) (further citation omitted).

 Figueroa argues that "the new charges in the indictment [the obstruction charge] do not demonstrate any 'concert of action on the part of the defendants.'" Figueroa Memo. at 5 (citation omitted). However, two defendants are charged in both the narcotics-related counts as well as the obstruction count. Thus, there clearly is some substantial identity of participants regarding the narcotics conspiracy charge and the obstruction charge. Moreover, as the government argues, the obstruction charge was not a "random crime," but rather an attempt to prevent or interfere with the trial on the original heroin charges. To that extent, the obstruction charge arose out of the conspiracy to distribute heroin. Inasmuch as it is well-settled that all defendants need not be charged in all counts to justify joinder, see e.g., Cervone, 907 F.2d at 341 (upholding denial of severance under Rule 8(b) where movant was the only defendant charged in the two counts ...


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