The opinion of the court was delivered by: KAPLAN
LEWIS A. KAPLAN, District Judge.
This decision disposes of defendants' pretrial motions to the extent not ruled upon in open court.
Agthe and Wilson, who are attorneys who were employed by KUC and worked at the 855 Avenue of the Americas location, are alleged to have participated in the conspiracy and certain substantive offenses that are the subject of the ITB Counts, but not in those involved in the Ganenko/Kouzmine Counts. Indeed, the government does not suggest that they had any knowledge whatever of the latter offenses. They move to sever the ITB Counts from the Ganenko/Kouzmine Counts on the ground that their joinder in the same indictment is improper.
Joinder of offenses in a multi-defendant indictment is governed by Rule 8(b). E.g., United States v. Attanasio, 870 F.2d 809, 814 (2d Cir. 1989); United States v. Turoff, 853 F.2d 1037, 1043 (2d Cir. 1988). It permits such joinder only where, inter alia, the defendants "have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Fed. R. Crim. P. 8(b). Of course, in the broadest sense, both conspiracies are part of the same series of acts or transactions constituting offenses -- just as the 1995 World Series was part of the same series of acts or transactions that began with Abner Doubleday. But, as this example demonstrates, Rule 8(b) cannot possibly be read so broadly if it is to have any practical meaning. The fundamental question therefore is whether these two conspiracies properly may be said to constitute parts of "the same series of acts or transactions constituting an offense or offenses" as that phrase is used in the Rule.
Several cases in this circuit have concluded that the joinder of distinct conspiracies as the government has done here is improper. In United States v. Lech, 161 F.R.D. 255 (S.D.N.Y. 1995), for example, Judge Sotomayor held that the joinder of three similar albeit separate conspiracy charges was improper, notwithstanding the presence of a common defendant and similar objects, because there was no suggestion that the moving defendant knew of or participated in the schemes other than the one with which he was charged. See also United States v. Giraldo, 859 F. Supp. 52 (E.D.N.Y. 1994); United States v. Menashe, 741 F. Supp. 1135 (S.D.N.Y. 1990); United States v. Gentile, 60 F.R.D. 686 (E.D.N.Y. 1973); 1 CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL § 144, at 515 & n. 39 (1982 & Supp. 1995) (citing cases). This seems entirely correct, as it is hard to see why the moving defendant in that case should have been burdened with the risks inherent in joinder of those alleged conspiracies simply because he had the misfortune of being charged with another defendant who was subject also to other accusations.
So too here. Given the conceded falling out between Filimanov and Ganenko and Kouzmine, there is no colorable argument in this case, as the government acknowledges, that both conspiracies alleged here were part of a single overarching scheme. Nor is there an identity of participants. Hence, the justification for trying the defendants charged only on the ITB Counts should be tried in a case involving also the Ganenko/Kouzmine Counts is limited.
The government's position rests on Attanasio, 870 F.2d 809, which stated that Rule 8(b) is satisfied where the acts are "'unified by some substantial identity of facts or participants,' or 'arise out of a common plan or scheme...'" Id. at 815 (quoting United States v. Porter, 821 F.2d 968, 972 (4th Cir. 1987), cert. denied, 485 U.S. 934, 99 L. Ed. 2d 269, 108 S. Ct. 1108 (1988). It maintains that both of the conspiracies charged in this case had similar objects, that Kouzmine and Ganenko participated in both schemes and dealt with the same undercover agent and confidential informant, and that the Kouzmine/Ganenko conspiracy arose in consequence of their falling out with Filimanov.
Agthe moves to suppress the fruits of a search of 855 Avenue of the Americas conducted pursuant to a warrant issued by Magistrate Judge Francis. The search warrant in question authorized seizure of "all business records, files, papers, computer hard drives and discs, correspondence and other material constituting evidence of the offenses listed above." Agthe attacks this as a general warrant, contending that the fruits of the search should be suppressed because the warrant did not sufficiently particularize the things to be seized and that this failure is not excused under the "all records" exception
because the affidavit upon which the warrant issued did not demonstrate that all or most of the activities of KUC and ITB were illegal. The government rejoins that the warrant is sufficiently particular and, in any case, that suppression should be denied because the seizure was made in objectively reasonable reliance on the warrant. See United States v. Leon, 468 U.S. 897, 919-21, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984).
Agthe's objection to the breadth of the warrant is not frivolous. The agent's affidavit demonstrated his awareness that he sought visa petitions filed with the INS and a letter soliciting recipients to telephone ITB to inquire about obtaining visas, perhaps among other records. The government, moreover, tellingly indicates that it would have been obvious to agents familiar with the immigration process that "blank and completed INS forms; letters to the INS discussing the employment, education and credentials of foreign aliens, blank and completed foreign diplomas; and so forth" would be the pertinent materials. (Gov. Br. 27) Yet the warrant did not specify even those categories of documents, which distinguishes it from the warrant upheld in Andresen v. Maryland, 427 U.S. 463, 49 L. Ed. 2d 627, 96 S. Ct. 2737 (1976). See United States v. Buck, 813 F.2d 588, 591 (2d Cir.), cert. denied, 484 U.S. 857, 98 L. Ed. 2d 121, 108 S. Ct. 167 (1987). Moreover, Andresen and other cases passing upon the validity of warrants, especially for documents, have placed a good deal of weight on whether the warrant was as particular as reasonably could ...