Davilla was a member of that organization and was well aware of the fact that the organization was involved in the distribution of narcotics." Government's Memo at 9. Further arguing that "the case represents a single conspiracy because the crimes charged were committed for the common goal of the conspirators, who were members of the enterprise alleged, and in furtherance of the organizations's [sic] ongoing and continuous scheme of selling drugs." Government's Memo at 9.
A duplicitous indictment combines two or more distinct crimes into a single count. United States v. Aracri, 968 F.2d 1512, 1518 (2d Cir. 1992). However, "[a] conspiracy indictment presents 'unique issues' in the duplicity analysis because 'a single agreement may encompass multiple illegal objects.'" Id. (quoting United States v. Murray, 618 F.2d 892, 896 (2d Cir. 1980)).
It is firmly established in this Circuit that an indictment count may allege a conspiracy to commit multiple crimes. Id.; Murray, 618 F.2d at 896. This Circuit, in the face of contrary authority, has explicitly held that "acts that could be charged as separate counts of an indictment may instead be charged in a single count if those acts could be characterized as part of a single continuing scheme." Aracri, 968 F.2d at 1518 (quoting United States v. Tutino, 883 F.2d 1125, 1141 (2d Cir. 1989), cert. denied, 493 U.S. 1081, 107 L. Ed. 2d 1044, 110 S. Ct. 1139 (1990)). Further, "whether the government has proven the existence of the conspiracy charged in the indictment and each defendant's membership in it, or instead, has proven several independent conspiracies is a question of fact for a properly instructed jury." United States v. Johansen, 56 F.3d 347, 350 (2d Cir. 1995); see also United States v. Alessi, 638 F.2d 466, 472 (2d Cir. 1980).
Applying this authority, defendant's motion for dismissal of the conspiracy counts must be denied. The Government's indictment charges, and the Government maintains that the evidence will prove, a single conspiracy. The charge that defendants engaged in varied illegal activities, through varied phases, does not of itself disprove the existence of a single conspiracy, so long as there is sufficient proof of mutual dependence and assistance among the defendants. Aracri, 968 F.2d at 1521; United States v. Maldonado-Rivera, 922 F.2d 934, 963 (2d Cir.), cert. denied, 501 U.S. 1233 (1990).
Accordingly, the fact that defense counsel chooses to characterize the alleged conduct as constituting four conspiracies, rather than one, does not vitiate the fact that the Government seeks to prove to a petit jury that a single conspiracy underlies the entire course of conduct of these defendants. The grand jury's concurrence in the factual propriety of the Government's charge precludes this Court from ordering a contrary result at this preliminary stage. Cf. Johansen, supra (reversing and remanding for new trial a conspiracy conviction where defendant was prejudiced by variance between single conspiracy charged and proof at trial showing several conspiracies). The Government shall have an opportunity to prove its case to a jury. Defendant Paulie Davilla's motion to dismiss is denied.
Paulie Davilla moves for severance from the other defendants, seeking in the alternative, severance allowing the three Davillas to be tried separately from the remaining defendants. Jimmy Davilla similarly moves for a separate trial of the three Davilla brothers. The Government concurs that the Davillas should be tried separately from the remaining defendants, having determined little evidentiary overlap exists between the Davillas and the lead defendant, Carlos Conesa. Accordingly, the motion seeking to sever the trial of all three Davilla brothers from the remaining defendants is granted.
As to Paulie Davilla's motion for severance from all other defendants, including Jimmy and Roberto Davilla, the motion is denied. The Supreme Court expressed the serious burden on a defendant seeking severance in Zafiro v. United States, 506 U.S. 534, 122 L. Ed. 2d 317, 113 S. Ct. 933 (1993), stating:
There is a preference in the federal system for joint trials of defendants who are indicted together. Joint trials 'play a vital role in the criminal justice system.' They promote efficiency and 'serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.'