demonstrate motive for other acts, and the like. See p. 7, supra. Once such proof is shown to be admissible, there is no potential prejudice to be avoided by severing the charges to which that proof relates.
Nosair's assertion that proof of the Kahane murder and associated charges would constitute a separate trial within a trial is unconvincing. As noted above, such proof is admissible to help prove the conspiracy charged in Count One. To exclude this proof entirely would be unfair to the government. To sever the counts charging the substantive crimes but permit some lesser amount of proof on both sides would be unmanageable. Just as the government would wish to present proof Nosair committed the substantive offenses, he would wish to present contrary proof, and would be allowed to do so. Thus, a severance of the underlying charges would accomplish little of advantage to Nosair. However, to say that these substantive charges will remain joined to the other charges does not mean that unlimited proof will be permitted from either side. The court retains discretion to limit proof, Fed. R. Evid. 403, and will exercise it as appropriate.
For the above reasons, Nosair's motion to sever counts is denied.
None of the defendants who have moved pursuant to Fed. R. Crim. P. 14 to sever all charges against each of them has moved to sever some group of defendants. Each appears to be seeking his own trial. Even if that were not the case, all defendants are charged with participating in the seditious conspiracy described in Count One. For the reasons set forth below, neither the numerosity of the remaining defendants scheduled for trial, who now total 13, nor relevant considerations of potential prejudice from joinder, warrant a severance for any moving defendant. It is convenient to treat these severance motions together with Abouhalima's motion, pursuant to Fed. R. Evid. 403,
to bar all reference to the Kahane and Mubarak incidents as unduly prejudicial.
Considered dictum in United States v. Casamento, 887 F.2d 1141, 1151-52 (2d Cir. 1989), cert. denied, 493 U.S. 1081, 107 L. Ed. 2d 1043, 110 S. Ct. 1138 (1990), appears to have created what amounts to a rebuttable presumption against trying more than 10 defendants together in a trial likely to last longer than four months. Nonetheless, the court's inquiry in the end remains what it has always been -- namely, "'whether, on balance, the fair administration of justice will be better served by one aggregate trial of all indicted defendants or by two or more trials of groups of defendants.'" Id. at 1151, quoted in United States v. DiNome, 954 F.2d 839, 842 (2d Cir.), cert. denied, 121 L. Ed. 2d 56, 113 S. Ct. 94 (1992). Weighing heavily in that balance is the familiar principle that defendants who have been indicted together should be tried together, United States v. Ventura, 724 F.2d 305, 312 (2d Cir. 1983), a principle informed by considerations of both efficiency and fairness, including promotion of accuracy in the assessment of relative culpability, and avoidance of (i) repetitive proceedings with attendant inconvenience and trauma, (ii) random favoritism to later tried defendants, and (iii) inconsistent verdicts. Richardson v. Marsh, 481 U.S. 200, 210, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1987).
By those standards, the government's detailed proffer in its memorandum, which does not purport to be exhaustive (Gov't. Mem. 2), is more than sufficient to rebut whatever presumption may be created by Casamento against joint trials of defendants based on sheer numerosity and projected length of the trial. All defendants, 13 rather than the 22 who stood trial in Casamento, are charged with participating at least in the conspiracy described in Count One, which appears to be less intricate than the interlocking and geographically dispersed relationships that constituted the narcotics distribution and money laundering network proved in Casamento. 887 F.2d at 1148. The seditious conspiracy charged here is easily comprehended and involves discrete incidents that are easily separable in a juror's mind. Unlike repeated narcotics transactions, which may be easily confused without the aid of charts or other devices, the actual and projected incidents charged here are not difficult to keep straight. A juror is unlikely to confuse the murder of Kahane (Gov't. Mem. 11-12) with the planned assassination of Mubarak (Gov't. Mem. 28-30, 44-46), or either of those with the planned bombing of vehicular tunnels (Gov't. Mem. 37-40) or the actual bombing of the World Trade Center. (Gov't. Mem. 21-24)
Nor has any defendant convincingly alleged prejudice of the sort that necessitates severance. The type of prejudice alleged by a defendant to justify severance is important because the Supreme Court has held that when defendants have been joined properly under Rule 8(b), as I have found these defendants are, "a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro v. United States, 122 L. Ed. 2d 317, 113 S. Ct. 933, 938 (1993). No such risk has been described here.
The closest any defendant has come is the allegation in the briefs of Abouhalima and Matarawy Mohammed Said Saleh ("Matarawy Saleh") that the joinder of each raises the risk ("near-certainty" in Abouhalima's estimation (Abouhalima Mem. 77)) of inconsistent defenses. At best, however, these allegations are not specific and do not show convincingly that whatever improper prejudice might result from such defenses cannot be mitigated or avoided by jury instructions or redaction of evidence.
Abouhalima argues that he, unlike others, spoke to the FBI and warned them about codefendant Siddig Ibrahim Siddig Ali, and that he ultimately withdrew from the conspiracy. (Id. 77-78) Although he does not say so explicitly, his argument suggests that any attempt to introduce the statement about Siddig Ali would raise problems under Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968), and that to exclude such evidence would hamstring Abouhalima's defense. But the Bruton problems, if they develop, can be avoided by redacting Siddig Ali's name from the statement in question and instructing the jury. So far as Abouhalima's withdrawal from the conspiracy, to the extent evidence of such withdrawal puts him in conflict with his codefendants and makes him their antagonist at trial, that seems more prejudicial to Abouhalima's codefendants than to him, and in any event is not the kind of prejudice Rule 14 was designed to remedy:
Mutually antagonistic defenses are not prejudicial per se. Moreover, Rule 14 does not require severance even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district court's sound discretion.
Zafiro, 113 S. Ct. at 938.
Matarawy Saleh alleges only that his defense necessarily will inculpate other defendants because he will show that he "was lured into the safehouse through the deception of [government informant] Emad Salem and [codefendant] Siddig Ali. Once in the safehouse, he was held at gunpoint by another man" (Matarawy Saleh Mem. 39), presumably another codefendant. But this defense, again more prejudicial to his codefendants than to the moving defendant, includes no proffer of evidence that would be inadmissible at a joint trial and no prospect of impermissible prejudice.
These defendants, and Khallafalla and Mohammed Saleh, also claim that they are alleged to have played a lesser role than the others, are otherwise distinguishable from the others, and that they did not participate directly in some of the criminal incidents attributable to others. However, the Court of Appeals has iterated and reiterated the observation that "differing levels of culpability and proof are inevitable in any multi-defendant trial and, standing alone, are insufficient grounds for separate trials." United States v. Carson, 702 F.2d 351, 366-67 (2d Cir.), cert. denied, 462 U.S. 1108 (1983) (quoted in United States v. Scarpa, 913 F.2d 993, 1015 (2d Cir. 1990) and United States v. Chang An-Lo, 851 F.2d 547, 557 (2d Cir.), cert. denied, 488 U.S. 966, 102 L. Ed. 2d 530, 109 S. Ct. 493 (1988)). Proof of the full nature and scope of a conspiracy is admissible even at the trial of lesser participants. Scarpa, supra, 913 F.2d at 1015; United States v. Nersesian, 824 F.2d 1294, 1304 (2d Cir.), cert. denied, 484 U.S. 957 (1987). A defendant cannot claim improperly prejudicial spillover from the introduction of such proof. United States v. Rosa, 11 F.3d 315, 341 (2d Cir. 1993), cert. denied, 128 L. Ed. 2d 211, 114 S. Ct. 1565 (1994). Moreover, it bears mention that even the least of these defendants is charged with knowingly agreeing to and, according to the government's memorandum (Gov't. Mem. 37-40, 51-57), with actually assisting conduct which, if it had been fully carried out, would have resulted in mass murder. Such a charge makes it particularly difficult to credit claims of prejudicial spillover from evidence of, for example, an incident such as the Kahane slaying or the plan to assassinate Mubarak, or even the bombing of the World Trade Center.
Nothing in DiNome is to the contrary. In that case, the Court held that a mistrial should have been granted as to two defendants who were convicted of mail and wire fraud but were acquitted on motion at the close of the government's case of the underlying RICO charges. 954 F.2d at 844-45. However, the basis for that holding was that none of the evidence relating to the alleged RICO enterprise, which included "vicious murders, loansharking, auto theft, pornography, and firearms trafficking and the very nature of [the RICO enterprise]," was admissible as to them. Id. at 844. Here, each of the moving defendants except for Nosair is charged principally if not exclusively with participating in the seditious conspiracy charged in Count One. As to Nosair, the charges surrounding the Kahane slaying are admittedly of lesser magnitude than the seditious conspiracy charge in Count One. However, they simply do not look so disproportionately innocuous alongside the seditious conspiracy charge as the mail and wire fraud counts looked alongside the murder and other predicates underlying the RICO charge in DiNome, in which the defendants there were not alleged to have had any role.
Rahman's motion rests on nothing firmer than the claim that there are counts in which he is not named, that evidence against others would not be admissible as to him, and that improper prejudice would result if he is tried together with others. He, however, is alleged to have been the leader of all the other defendants and a source of authority for committing the acts and forming the plans charged in the indictment. Among all the defendants, he is the one least able to argue for severance.
Because the charges are properly joined and the defendants are properly joined, the severance motions are denied.
Abouhalima's motion to bar reference to the Kahane and Mubarak incidents as unduly prejudicial does not merit extended discussion. Again, all defendants are charged with participating in the seditious conspiracy charged in Count One. For the same reasons the Kahane and Mubarak incidents cannot justify severance, they are not so prejudicial as to warrant exclusion under Rule 403. Next to the bombing of buildings, tunnels and bridges, one actual murder and another proposed murder are not inflammatory. Accordingly, Abouhalima's motion to exclude reference to those incidents is denied as well.
Dated: New York, New York
June 7, 1994
Michael B. Mukasey
U.S. District Judge