victim. The defendant Lombardo asserts that he should be tried separately because the gun charge against Desantis will necessarily prejudice him at trial.
These motions are made pursuant to Rules 8 and 14, Fed. R. Crim. P. Rule 8 provides:
Joinder of Offenses and of Defendants
(a) Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
(b) Joinder of Defendants. 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.
Rule 8(a) permits joinder of offenses and Rule 8(b) permits joinder of defendants. Offenses may be joined against a defendant when they are based upon the same act or transaction, or based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are of the same or similar character. The thread unifying these factors is the policy determination that the benefits of trial efficiency weigh more heavily in the balance than the prejudice that may occur to the accused. Counts Four and Five being of the same character and being parts of a common scheme are properly joined with Counts Six and Seven. In Counts Four and Five, Kerins is the alleged victim of the same loansharking extortion scheme as is Kleger in Counts Six and Seven.
The joinder of Count Eight, in which only the defendant Desantis is charged with being a felon in possession of a weapon is proper, the government argues, because it arose out of the same transaction as the loansharking conspiracy in that the gun was openly displayed at the place where the loansharking business was conducted and where Kleger was beaten and Kerins was threatened by Desantis. The gun, it is reasoned, is therefore a "tool of the loansharking trade." See, e.g., United States v. Wiener, 534 F.2d 15 (2d Cir.), cert. denied, 429 U.S. 820 (1976).
"Rule 8 does not explicitly provide a standard that governs when multiple offenses and multiple defendants are joined in one indictment. . . . We have permitted multiple defendants facing multiple charges to move for [severance under 8(a) and 8(b)] but we invoke only Rule 8(b) to test the validity of joinder regardless of which type of severance is sought. . . . Our cases indicate that 'when a defendant in a multiple-defendant case challenges joinder of offenses, his motion is made under 8(b) rather than 8(a).' . . . The effect of construing Rule 8 in this fashion is that multiple defendants cannot be tried together on two or more 'similar' but unrelated acts or transactions; multiple defendants may be tried together only if the charged acts are part of a 'series of acts or transactions constituting an offense or offenses.'"
Research has not uncovered prior judicial discussion of the precise meaning or the parameters of the phrase "charged acts [that are] part of a series of acts or transactions constituting an offense or offenses." If the question posed is whether possession of a gun may be said to be part of a series of acts constituting the offenses of extortion proscribed by 18 U.S.C. §§ 892, 894, the court would unhesitatingly hold that it is. That conclusion would be based upon the phrase "extortionate means" in § 892(b)(3)(A) and in § 894(a) which is defined in 18 U.S.C. § 891(7) as meaning "any means which involves the use, or an express or implicit threat of use, of violence or other criminal means to cause harm to the person, reputation or property of any person." Guns in this context, are fairly synonymous with violence and evidence tending to establish the use or the express or implied use of a gun would be admissible against a defendant charged with violations of 18 U.S.C. §§ 892 and 894. Cases such as Wiener and United States v. Terry, 702 F.2d 299 (2d Cir.), cert. denied, 461 U.S. 931 (1983) relied upon by the government in opposition to the defendants' motion as to Count Eight address the admissibility of guns in prosecutions for violations of the narcotics laws. Having determined that Count Eight is not improperly joined with the other counts, the question remains whether that Count should, nevertheless, be severed.
Rule 14, Fed. R. Crim. P. is captioned "Relief from Prejudicial Joinder" and provides in relevant part as follows:
If it appears that a defendant . . . is prejudiced by a joinder of offenses . . . in an indictment . . . or by such joinder for trial together, the court may order an election or separate trial of counts, . . . or grant whatever other relief justice requires.
The essence of Rule 14 is prejudice and the problem is particularly troublesome where a defendant is charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) in an indictment in which he is also charged with other crimes. The difficulty is manifest in the variety of views expressed on the problem. In United States v. Daniels, 770 F.2d 1111 (D.C. Cir. 1985), the defendant was convicted of armed bank robbery, carrying a pistol without a license, and possession of a firearm subsequent to a felony conviction. Evidence of his prior felony conviction was received at trial as an element of the possession charge but would have been inadmissible in a separate trial on the bank robbery and carrying an unlicensed pistol charge. The nature of his prior felony conviction was not made known to the jury. Instead, a stipulation was read stating simply that the defendant had been convicted of an unspecified felony. The government conceded that the stipulation would not have been admissible in a separate trial of the other counts. On appeal, he argued that he was impermissibly prejudiced by the trial court's refusal to sever the counts. Declining to hold that joinder in such cases is a per se abuse of discretion and that prosecutors and judges are well advised to proceed cautiously when called upon to decide similar severance motions, the court wrote, at page 1118:
In making it illegal for ex-felons to possess firearms, Congress was motivated by an understandable desire to restrict ownership of weapons by those whose pasts suggested even a minimal proclivity towards crime. See 18 U.S.C. (App. I) § 1201; S. Rep. No. 1097, 90th Cong., 2d Sess. 2-3, reprinted in 1968 U.S. Code Cong. & Ad. News 2112, 2113-14. Unfortunately, a side consequence of the law has been to provide federal prosecutors with a powerful tool for circumventing the traditional rule against introduction of other crimes evidence. Whenever an ex-felon is charged with committing a crime involving the use of a gun, prosecutors may inform the jury of the defendants' prior convictions merely by taking the time to include a charge of firearms possession.
* * *
We do not believe Congress had such a tactic in mind when it criminalized possession of firearms by ex-felons, and we do not believe the federal judiciary should encourage or countenance this use of the law. The exclusion of other crimes evidence is not simply a "technicality" designed to prevent law enforcement personnel from doing their job; it reflects and gives meaning to the central precept of our system of criminal justice, the presumption of innocence. That exclusion and that precept must not be discarded in the name of judicial efficiency.
See also United States v. Dockery, 955 F.2d 50 (D.C. Cir. 1992); United States v. Busic, 587 F.2d 577 (3d Cir. 1978), rev'd on other grounds, 446 U.S. 398 (1980). The primary concern in weighing the prejudice of joinder against its benefits is the wise conservation of judicial resources. Weighing these competing considerations the court concludes that the balance must be struck in favor of prejudice. The judicial resources of this court will not be unduly strained by a severance of Count Eight which could surely be tried within two days. United States v. Silva, 745 F.2d 840, 844 (4th Cir. 1984) (possession charge "requires little more than proof of possession and the existence of the prior record"), cert. denied, 470 U.S. 1031 (1985).
F. Motion to Suppress
The defendant Desantis seeks to suppress the items seized at his business premises and from his person and his automobile based upon his assertion that the Magistrate issued the search warrant in reliance upon "stale" representations and that material information was omitted from the application for the search warrant. The defendant also asserts that the warrant did not adequately describe the area to be searched and therefore the search of premiss adjacent to the premises that were described was unlawful and the items seized from it should be suppressed.
Illinois v. Gates 462 U.S. 213 (1983) teaches that in deciding whether to issue a warrant, the Magistrate must make a practical, common sense determination that there is a fair probability that contraband or evidence will be found in a particular place. That determination is to be based upon all the facts and circumstances described in the affidavit before him, including the credibility and the basis of the knowledge of the persons furnishing hearsay information. The duty of the court in reviewing that determination is simply to ensure that the magistrate had a substantial basis for finding that probable cause existed for issuing the warrant. The magistrate's finding of probable cause is entitled to substantial deference. United States v. Ventresca, 380 U.S. 102, 109 (1965). The magistrate's finding of probable cause is itself a substantial factor tending to uphold the validity of the warrant. United States v. Jackstadt, 617 F.2d 12, 13 (2d Cir.) (per curiam), cert. denied, 445 U.S. 966 (1980) and 449 U.S. 1084 (1981). Having reviewed the affidavits in support of the application for the search warrants, the issuance of which the defendant challenges, the court finds that those challenges have no merit. Those affidavits "present a picture of continuing conduct," not merely "isolated instances of illegal acts" and contain information which is relatively fresh. A practical, common sense reading of those affidavits belie the claim that the information presented is stale. The contention that the agents executing the search warrant entered the wrong premises is not based upon personal knowledge of the defendant's attorney and is insufficient. United States v. Gillette, 383 F.2d 843, 848 (2d Cir. 1967). The receipt for the property seized specifically identifies the premises searched as the premises described in the warrant with particularity. In any event, the warrant being facially valid and executed in good faith, the items seized are admissible pursuant to United States v. Leon, 468 U.S. 897 (1984).
The defendant Desantis seeks a pretrial hearing to determine the admissibility of co-conspirator statements. The leading case in this circuit provides no basis for such a hearing. See United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969), cert. denied, 397 U.S. 1028 (1970).
Finally, the defendants contend that charging them with a conspiracy to violate 18 U.S.C. § 892 and also a conspiracy to violate 18 U.S.C. § 894 is multiplicitous. Their contention has no merit. Multiplicity occurs when a single offense is charged in several counts in one indictment. United States v. Free, 574 F.2d 1221 (5th Cir.), cert. denied, 439 U.S. 873 (1978); United States v. Israelski, 597 F.2d 22, 24 (2d Cir. 1979). The test for determining whether an indictment is multiplicitous is whether each count requires proof of an additional fact which the other does not. When the charges alleged to be multiplicitous are similar conspiracies, resolution of the issue depends upon whether the separate conspiracies are each based upon the general conspiracy statute, 18 U.S.C. § 371, or are based upon separate statutes prohibiting specific types of conspiracies. See United States v. Anderson, 872 F.2d 1508 (11th Cir.), cert. denied, 493 U.S. 1004 (1989). Count One charges a conspiracy to make extortionate extensions of credit in violation of 18 U.S.C. § 892. Count Two charges conspiracy to collect extensions of credit by extortionate means in violation of 18 U.S.C. § 894. Count Two requires proof of an additional fact which Count One does not, namely, that the defendant used extortionate means to collect or attempt to collect the extension of credit.
For the foregoing reasons, the defendants' motions are denied, except as to the motion to sever Count Eight which is granted.
I. Leo Glasser
United States District Judge
Dated: Brooklyn, New York
September 3rd, 1992
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