Furthermore, the Government estimates that trial of this case will take three months or less. Thus, because the trial is likely to involve ten defendants or less and will likely take less than four months, the concerns enunciated in Casamento are inapplicable.
We further observe that despite defendants' repeated references to a "mega-trial", this case in no way approaches the magnitude or the complexity of proof in Casamento. We are assured by the Government that this case does not involve the complex evidence of massive money laundering transactions and other circumstantial proof, or the number of complex criminal charges and diverse counts contained in the Casamento indictment. The 13 counts of this indictment
charge violations only of the narcotics and firearms laws, all of which charges arise out of the criminal activity of a single narcotics organization which operated in the Bronx over an approximately two year period.
Each of the moving defendants also seeks severance based upon various claims of prejudicial spillover and disparity of evidence. Defendants Perdomo and Montoya claim that they had a lesser role in the conspiracy. (Perdomo Br. at 19; Montoya Br. at 7-8). Defendants Perdomo and St. Hilare claim that most of the Government's evidence will not relate to them, and defendant St. Hilare points out that his voice was not recorded during the wiretap. (Perdomo Br. at 19; St. Hilare Br., at 4). The defendants point out that they are not charged with any of the firearms and continuing criminal enterprise counts, and therefore claim that they should be tried separately from these defendants who are charged with those offenses. (St. Hilare Br., at 3; Cuevas Br., at 7; Montoya Br. at 7-8). Each of these claims is insufficient to justify severance.
The Government states that it expects to prove at trial that the defendants Montoya and St. Hilare were major, not minor, participants in the Bello organization. In any event, claims by defendants as to their minor role in relation to other coconspirators, and the disparity in the quantity of evidence they anticipate will be offered against them, even if credited, do not, without more, require severance. The Second Circuit recently stated, "disparity in the quantity of evidence and of proof of culpability are inevitable in any multidefendant trial, and by themselves do not warrant a severance." United States v. Cardascia, 951 F.2d 474, 482 (2d Cir. 1991); see Chang An-Lo, 851 F.2d at 557; Carson, 702 F.2d at 366. Although there may be "differences in degree of guilt and possibly notoriety" of the defendants, that is not sufficient grounds for separate trials. United States v. Aloi, 511 F.2d 585, 598 (2d Cir.), cert. denied, 423 U.S. 1015, 46 L. Ed. 2d 386, 96 S. Ct. 447 (1975); see also Torres, 901 F.2d at 230; Neresesian, 824 F.2d at 1304.
Furthermore, even if a separate trial were granted, the fact that the severed defendants played comparatively lesser roles in the charged conspiracy does not mean that evidence showing the full scope and true nature of the enterprise cannot properly be admitted against each defendant. See United States v. Vega, 458 F.2d 1234, 1236 (2d Cir. 1972), cert. denied, 410 U.S. 982 (1973). Indeed, where, as here, each defendant is a member of a single narcotics conspiracy, virtually all of the evidence admitted at a joint trial would be admissible against each separate defendant in a separate trial as acts of his co-conspirators in furtherance of the charged conspiracy. Casamento, 887 F.2d at 1153; see also Bari, 750 F.2d at 1178; Cunningham, 723 F.2d at 230; United States v. Angelilli, 660 F.2d 23, 37-38 (2d Cir. 1981), cert. denied, 455 U.S. 910 (1982); Fed. R. Crim. P. 801(d)(2)(E). Accordingly, attempts by the moving defendants to diminish the significance of their roles in this case appear to be unavailing.
Each of the moving defendants is charged with being a member of a single narcotics conspiracy. While it is true that a large portion of the evidence in this case will consist of wiretap evidence, the fact that defendant St. Hilare was not recorded during the wiretap does not mean that he could exclude that evidence at a separate trial. His premise (and that of the other moving defendants) that only evidence directly involving him would be admissible in a separate trial is untenable.
For similar reasons, the claims of defendants St. Hilare, Cuevas and Montoya concerning "spillover evidence" from the firearms and CCE offenses with which they are not charged, are unavailing. "Where 'spillover evidence' is alleged as the grounds for Rule 14 severance, the defendant's burden is heavy." United States v. Alegria, 761 F. Supp. 308, 310-11 (S.D.N.Y. 1991); see also United States v. Villegas, 899 F.2d 1324, 1347 (2d Cir.), cert. denied, 498 U.S. 991, 111 S. Ct. 535, 112 L. Ed. 2d 545 (1990). A properly joined defendant is not entitled to a separate trial merely because there will be testimony relating to other criminal activities of his codefendants. E.g., United States v. Weisman, 624 F.2d 1118, 1129 (2d Cir.), cert. denied, 449 U.S. 871, 66 L. Ed. 2d 91, 101 S. Ct. 209 (1980); Rucker, 586 F.2d at 902. Otherwise, the policies behind Rule 8 governing joinder of defendants and charges would be undermined. Werner, 620 F.2d at 929. The law is clear that merely because some evidence introduced at trial can be considered only as against one defendant or another does not make out substantial prejudice justifying severance because proper limiting instructions will reduce any resultant prejudice. See, e.g., LaSanta, 978 F.2d at 1307; Cardascia, 951 F.2d at 483-84; Torres, 901 F.2d at 230; Brown, 744 F. Supp. at 561 United States v. Victor Teicher & Co., 726 F. Supp. 1424, 1439 (S.D.N.Y. 1989).
The substantive narcotics, CCE and firearms counts in which St. Hilare, Cuevas and Montoya are not named all arose from and are connected to the narcotics conspiracy with which they are charged. Thus, even if severance were granted, evidence of the substantive charges presented at a joint trial could also be used at separate trials against these defendants. A defendant who knowingly joins a conspiracy "need not be a member of the conspiracy from its inception but may join later and incur liability for the conspiracy's unlawful acts committed both before and after his adoption of the conspiracy." United States v. Guillette, 547 F.2d 743, 751 (2d Cir. 1976), cert. denied, 434 U.S. 839, 54 L. Ed. 2d 102, 98 S. Ct. 132 (1977); see also United States v. Blackmon, 839 F.2d 900, 911 (2d Cir. 1988); United States v. Ebner, 782 F.2d 1120, 1127 (2d Cir. 1986). Evidence of possession of firearms is admissible to prove a charge of a narcotics conspiracy, firearms being tools of the narcotics trade. See Casamento, 887 F.2d at 1165; United States v. Rivera, 844 F.2d 916 (2d Cir. 1988); United States v. Crespo, 834 F.2d 267, 271 (2d Cir. 1987), cert. denied, 485 U.S. 1007, 99 L. Ed. 2d 700, 108 S. Ct. 1471 (1988); United States v. Fernandez, 829 F.2d 363, 367 (2d Cir. 1987).
The defendants have failed to justify the tremendous burdens that separate trials impose on the criminal justice system. Their motions for severance are, accordingly, denied.
THE "MEANS AND METHODS" SECTION OF THE INDICTMENT
Defendant Perdomo moves to strike the "Means and Methods" section of Count One of the superseding indictment on the ground that it "constitutes surplusage" and is "unfairly prejudicial" (Perdomo Br. at 21). The defendant Daniel Urena joins in the motion.
"It has long been the policy of courts within the Southern District to refrain from tampering with indictments." United States v. Claytor, 52 F.R.D. 360, 361 (S.D.N.Y. 1971). As defendant Perdomo candidly admits, motions to strike supposed surplusage are rarely granted. (Perdomo Br. at 22). See United States v. Napolitano, 552 F. Supp. 465, 480 (S.D.N.Y. 1982) (citing Wright, Federal Practice and Procedure, § 127, at 278 n.15 (1969), and United States v. DePalma, 461 F. Supp. 778, 797 (S.D.N.Y. 1978)).
Further, "motions to strike surplusage from an indictment will be granted only where the challenged allegations are 'not relevant to the crime charged and are inflammatory and prejudicial.'" United States v. Scarpa, 913 F.2d 993, 1013 (2d Cir. 1990); see also Napolitano, 552 F. Supp. at 480; Claytor, 52 F.R.D. at 361; United States v. Pilnick, 267 F. Supp. 791, 802 (S.D.N.Y. 1967); United States v. Klein, 124 F. Supp. 476, 479-80 (S.D.N.Y. 1954); Fed. R. Crim. P. 7, Advisory Committee Notes. That standard is an exacting one. Napolitano, 552 F. Supp. at 480.
The question, moreover, is not whether there is language that might be viewed as prejudicial, but whether that language is also relevant to the crimes charged. As Judge Sweet explained in Napolitano:
The determinative question in a motion to strike surplusage is not the potential prejudice, but rather the relevance of the allegation to the crime charged in the indictment. If the evidence of the allegation is admissible and relevant to the charge, then despite prejudice, the language will not be stricken. United States v. Chas. Pfizer & Co., 217 F. Supp. 199, 201 (S.D.N.Y. 1963).
552 F. Supp. at 480; see also Scarpa, supra, 913 F.2d at 1013 ("'If evidence of the allegation is admissible and relevant to the charge, then regardless of how prejudicial the language is, it may not be stricken'") (quoting DePalma, 461 F. Supp. at 797).
Here, the challenged section is relevant to the conspiracy crime charged. The "Means and Methods" section of Count One explains the alleged structure of the conspiracy and the alleged roles each defendant held within the organization. Evidence of the allegations contained in the "Means and Methods" section will certainly be relevant and admissible with respect to the conspiracy charge. Moreover, the "Means and Methods" section is drafted in neutral and non-infammatory language.
Although the defendants claim that the description of the conspiracy contained in that section is not essential to the conspiracy charge, "the short answer is that an indictment need not be limited to statements specifying the elements charged but may, and generally does, describe the nature of the conspiracy charged and enumerate overt acts." United States v. Wheaton, 463 F. Supp. 1073, 1077 (S.D.N.Y.) aff'd sub nom. United States v. Williams, 614 F.2d 1293 (2d Cir. 1979).
Accordingly, because the defendants have failed to meet the "exacting standard" needed to strike surplusage, their motions are denied.
THE RULE 404(B) EVIDENCE
The defendant Cuevas demands to be notified of any evidence that the Government may offer pursuant to Rule 404(b) of the Federal Rules of Evidence. The defendant St. Hilare joins in this motion. The Government advises that it has no intentions of offering Rule 404(b) evidence with respect to these two defendants, but counsel will be notified promptly if the Government's intentions change.
THE ADEQUACY OF ST. HILARE'S ARREST
The defendant Usmare St. Hilare moves to suppress the tangible evidence seized from his person on the ground that his arrest was not supported by probable cause. St. Hilare does not request a hearing, but contends that the complaint against him did not contain allegations which amounted to probable cause to arrest. St. Hilare Br., at 5-6.
"Probable cause to arrest exists when the authorities have knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." Calamia v. The City of New York, 879 F.2d 1025, 1032 (2d Cir. 1989) Accord United States v. Fisher, 702 F.2d 372, 375 (2d Cir. 1983); United States v. Ginsberg, 758 F.2d 823, 828 (2d Cir. 1985). "Probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." Illinois v. Gates, 462 U.S. 213, 244, 76 L. Ed. 2d 527, 103 S. Ct. 2317 n. 13 (1983). As the Second Circuit stated in United States v. Cruz:
in order to establish probable cause, it is not necessary to make a "prima facie showing of criminal activity" or to demonstrate that it is more probable than not that a crime has been or is being committed. Rather, probable cause for arrest "exists where 'the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that 'an offense has been or is being committed. "Probable cause is a fluid concept -- turning on the assessment of probabilities in particular factual contexts -- not readily, or even usefully, reduced to a neat set of legal rules." It "'must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.'" 834 F.2d 47, 50-51 (2d Cir. 1987) (citations omitted).