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UNITED STATES v. UPTON

June 29, 1994

UNITED STATES OF AMERICA,
v.
EDWARD UPTON, THOMAS LEWIS, JOSEPH MOSER, EDWARD HAY, CHARLES CATARELLI, STEPHEN JONES, ROY HARDY, ROBERT KNOX, HOLLIS HUFFMAN, CHARLES BRAY, K. RAY STOOKSBURY, ROBERT ZUEGEL, and JACQUES JEAN, Defendants.



The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 The twenty-nine count Superseding Indictment in this case arises out of charges of falsification of airplane maintenance records for Eastern Air Lines, Inc. ("Eastern"), at John F. Kennedy International Airport ("JFK") in New York City, and Hartsfield Airport ("Hartsfield") in Atlanta. *fn1" Defendants are also charged with obstructing the administration of the law by, among other things, testifying falsely before the Federal Aviation Administration of the Department of Transportation ("FAA"), regarding their knowledge of and participation in a conspiracy to falsify Eastern's maintenance records.

 For the purposes of this memorandum and order, the defendants will be referred to as follows. The defendants who worked at JFK, Thomas Lewis ("Lewis"), Joseph Moser ("Moser"), Charles Catarelli ("Catarelli"), Roy Hardy ("Hardy"), Robert Knox ("Knox"), Jacques Jean ("Jean") and Stephen Jones ("Jones"), will be referred to as the "JFK Defendants." The defendants who worked at Hartsfield in Atlanta, Edward Hay ("Hay"), Charles Bray ("Bray"), Hollis Huffman ("Huffman"), K. Ray Stooksbury ("Stooksbury"), and Robert Zuegel ("Zuegel"), will be referred to as the "Atlanta Defendants." Upton worked at Eastern's headquarters in Miami, Florida.

 DISCUSSION

 I. Motion to Dismiss or Sever

 A. Impermissible Joinder

 The Atlanta defendants, Knox, and Upton claim that they were improperly joined in the indictment and that their trials should be severed, pursuant to Rule 8(b) of the Federal Rules of Criminal Procedure, *fn2" which permits joinder of multiple defendants if they are alleged to have participated in a common scheme or plan. United States v. Bernstein, 533 F.2d 775, 789 (2d Cir.), cert. denied, 429 U.S. 998, 50 L. Ed. 2d 608, 97 S. Ct. 523 (1976). It is well settled that the good-faith inclusion of a conspiracy count establishes the requisite common scheme or plan and is sufficient to support joinder of defendants under Rule 8(b). United States v. Uccio, 917 F.2d 80, 87 (2d Cir. 1990); United States v. Aiken, 373 F.2d 294, 299-300 (2d Cir.). cert. denied, 389 U.S. 833, 19 L. Ed. 2d 93, 88 S. Ct. 32 (1967). Joinder of a conspiracy count with substantive counts arising from the conspiracy is proper because the conspiracy charge provides a common link and demonstrates the extension of a common plan. Bernstein, 533 F.2d at 789; United States v. Smith, 789 F.2d 196, 206 (3rd Cir.) ("As long as the government has charged conspiracy in good faith, an allegation of conspiracy is a sufficient reason for trying the conspiracy and all substantive offenses together"), cert. denied, 479 U.S. 1017 (1986).

 An exception to this general rule is that where counts unrelated to the general conspiracy are alleged, the government has the burden of showing that they are a part of the conspiracy. See United States v. Carrozza, 728 F. Supp. 266, 270 (S.D.N.Y. 1990), aff'd, 956 F.2d 1160 (2d Cir. 1992) (table). In this case all the counts contained in the Superseding Indictment are clearly related to the conspiracy count. This is so, even with regard to the obstruction of justice count, which alleges that certain defendants testified falsely before the FAA. The indictment alleges that the false testimony was a critical component in the over-arching scheme to defraud the federal government and was a part of the original conspiracy. *fn3" Accordingly, joinder of all the counts complies with Rule 8(b). See United States v. Cunningham, 723 F.2d 217, 229. (2d Cir. 1983), cert. denied, 466 U.S. 951, 80 L. Ed. 2d 540, 104 S. Ct. 2154 (1984).

 Defendants heavily rely on United States v. Rosenblatt, 554 F.2d 36 (2d Cir. 1977), in support of their Rule 8(b) motions. In Rosenblatt, an alleged co-conspirator, Brooks, made false entries in the accounts payable records at the Manhattan Postal Service headquarters and obtained checks totalling over $ 180,000, payable to persons having no claim to payment from the Postal Service. Brooks was indicted for conspiracy to defraud the United States in violation of 18 U.S.C. § 371 and testified against the defendant, Rosenblatt. Rosenblatt, a college dean, agreed to "launder" the checks through the college's bank account and keep a certain percentage for his services. He was indicted along with Brooks for a violation of 18 U.S.C. § 317. The Second Circuit reversed the jury verdict of guilty because there was no agreement, either pleaded or proved, as to which fraud was to be executed. The court wrote:

 
Our difficulty with Rosenblatt's conviction arises from the lack of any agreement between him and Brooks concerning the type of fraud in which they were engaged. It is clear that Brooks was defrauding the United States by obtaining payment for government checks which he had caused to be printed without authorization. The government stipulated, however, that Rosenblatt did not know the truth about Brooks' activities. . . . In other words, both men agreed to defraud the United States, but neither agreed on the type of fraud. On this appeal, Rosenblatt argues that under 18 U.S.C. § 371 a conspiracy must be grounded upon agreement on some common scheme or plan. He maintains that proof of an agreement to defraud, without further qualification as to the nature of the fraud, is insufficient to support a conviction under § 371. We agree and reverse the conviction.

 Id. at 38 (emphasis added).

 Defendants therefore contend that Rosenblatt stands for the proposition that unless the indictment establishes an agreement among the purported conspirators, the indictment does not satisfy Rule 8(b) and should be dismissed in its entirety. The focus of the court's attention, however, was on the fact that the government did not, and given its stipulation could not, prove an agreement between Brooks and Rosenblatt as to the essential nature of the fraud allegedly perpetrated against the United States in violation of 18 U.S.C. § 371: "Proof of the essential nature of the plan is required because 'the gist of the offense remains the agreement, and it is therefore essential to determine what kind of agreement or understanding existed as to each defendant.'" Id. (quoting United States v. Borelli, 336 F.2d 376, 384 (2d Cir. 1964), cert. denied, 379 U.S. 960 (1965)). The court did not discuss Rule 8(b), joinder or severance and consequently Rosenblatt cannot govern the disposition of the present motion.

 More important, however, is the fact that the Superseding Indictment in this action does meet the requirements of the court's explicit holding in Rosenblatt. The court concluded that,

 Id. at 42 (citation omitted). In this action, the Superseding Indictment pleads an agreement among and between defendants with respect to the essential nature of the alleged fraud; namely, obstructing the functions of the FAA by misrepresenting the safety of Eastern's aircraft. Paragraph 18 of the Superseding Indictment reads in part as follows:

 
On or about and between January 1, 1987 and October 13, 1989 . . . [defendants] . . . did unlawfully, wilfully and knowingly conspire, combine, confederate and agree to defraud the United States by impeding, impairing, obstructing, and defeating the lawful government functions of the [FAA] to promote safety of flight of civil aircraft in air commerce and insure that aircraft are in a safe condition and are properly maintained.

 The Superseding Indictment then states in subsequent paragraphs that it was part of the conspiracy to use intimidation to encourage falsification of aircraft maintenance records; falsify log books, work cards and computer entries; disregard FAA maintenance program requirements; conceal the falsifications from the FAA; testify falsely before the FAA; and cause aircraft that were not properly maintained and repaired to fly and carry unsuspecting passengers.

 The government has therefore alleged a single, over-arching conspiracy among and between the Atlanta and JFK defendants, and Upton, the essential nature of which was to impede and obstruct the FAA. Because the Superseding Indictment pleads "an agreement with respect to the essential nature of the alleged fraud," it does not run afoul of the Federal Rules of Criminal Procedure. Defendants' reliance on United States v. Levine, 546 F.2d 658, 665-66 (5th Cir. 1977) ("since allegations of proximate conspiracies are legally insufficient to establish a single overall conspiracy, the conspiracy count could not 'reasonably have been made.'"), is, therefore, misplaced as well. As the court noted in Uccio, 917 F.2d at 87, "it is an 'established rule' that 'a non-frivolous conspiracy charge is sufficient to support joinder of defendants under Fed. R. Crim. P. 8(b)." "Whether the evidence in a case establishes single or multiple conspiracies is a question of fact to be resolved by a properly instructed jury." United States v. Friedman, 854 F.2d 535, 561 (2d Cir. 1988), cert. denied, 490 U.S. 1004 (1989). *fn4"

 B. Severance of Atlanta Defendants

 Rule 14 of the Federal Rules of Criminal Procedure permits severance at the discretion of the court. The rule provides that "if it appears that a defendant or the government is prejudiced by a joinder of defendants in an indictment . . . or by such joinder for trial together, the court may . . . grant a severance of defendants or provide whatever other relief justice requires."

 Generally, there is a presumption that persons indicted together should be tried together. See United States v. Gallo, 668 F. Supp. 736, 748 (E.D.N.Y. 1987). This presumption was designed to promote judicial economy by preventing multiple, time-consuming and expensive trials. United States v. Borelli, 435 F.2d 500, 502 (2d Cir. 1970), cert. denied, 401 U.S. 946, 28 L. Ed. 2d 229, 91 S. Ct. 963 (1971). A defendant may overcome this presumption by demonstrating that a joint trial would result in substantial prejudice and that he or she will be denied a fair trial. United States v. Crozzoli, 698 F. Supp. 430, 437 (E.D.N.Y. 1988). *fn5"

 In determining whether sufficient prejudice exists to justify severance, the following criteria should be considered: (1) the number of defendants; (2) the number of counts; (3) the complexity of the indictment; (4) the estimated length of trial; (5) disparities in the amount or type of proof offered against each defendant; (6) disparities in the degrees of involvement by each defendant in the overall scheme; (7) possible conflict between various defense theories or trial strategies; and (8) prejudice from evidence admitted against co-defendants which is inadmissible or excluded as to a particular defendant. United States v. Gallo, 668 F. Supp. at 749. None of these factors is by itself dispositive. Instead, the court must consider them together to determine whether the jury will be able to attribute the evidence accurately as to each defendant. Id. In this case, several factors suggest that such compartmentalization might be difficult and prejudice could result to the Atlanta defendants, justifying severance under Rule 14. Discussion of the relevant factors follows.

 1. Complexity. "As the number of counts and defendants in an indictment increases, 'it is obvious' that the resultant complex trial record makes it more difficult for a jury to keep straight the specific evidence and charges against each defendant." Id. In this case there are 13 defendants and 29 counts. None of the Atlanta defendants are charged with substantive violations alleged to have occurred at JFK. However, the substantive acts alleged in the Atlanta airport counts -- installation of faulty equipment and falsification of related documents -- are similar in kind to the acts alleged in the JFK counts. *fn6" The jury in this case may find it difficult to distinguish the evidence relating to the Atlanta defendants from that relating to the others, especially after a long and complicated trial.

 2. Disparate Evidence. The difficulties of a complex case such as this one are compounded for defendants who are named in a small portion of the indictment and against whom only a small portion of the evidence is relevant. United States v. Branker, 395 F.2d 881, 888 (2d Cir. 1968), cert. denied, 393 U.S. 1029 (1969). In the present case, absent severance, the Atlanta defendants would have to endure a trial involving many incidents of misconduct which do not involve them. See id. The accumulation of evidence during the course of trial places the uninvolved defendants at risk of "spillover" because the jurors may not be able to prevent themselves from attributing the evidence to the uninvolved defendants. The result would be unfair prejudice to the uninvolved Atlanta defendants.

 Trial judges also face a great problem of trial management in prolonged cases. Juggling various attorneys' schedules with the other cases before the court becomes impossible. "The already overburdened docket of the court reaches a breaking point, and the administration of justice in all of the court's cases is unconscionably delayed. . . . Where the judge decides to sever the trial, the court is left with much greater flexibility to administer both that and other cases . . . and some normalcy ...


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