satisfy the requirements of Rule 8(b), which governs the propriety of the joinder of defendants and counts contained in the superseding indictment. The government has submitted that affidavit.
Trial courts rarely grant a defendant's application to examine grand jury testimony in advance of trial. In this case, the Court called for production of the pertinent grand jury testimony because the connection between the C & C Organization and the Nasty Boys Organization seemed tenuous. I formed that impression not only from the face of the superseding indictment, but from the encyclopedic information I acquired about the C & C Organization during the three-month trial of certain defendants under a prior superseding indictment.
It is useful to preface an analysis of the governing law by summarizing the grand jury testimony furnished by the government in response to the Court's order.
The Grand Jury Testimony
On February 7, 1996, an NYPD detective appeared before the grand jury and testified that he was participating in an investigation of the Nasty Boys organization. Following the practice of such witnesses, this officer described to the grand jury the results of his investigation, including statements made to him by witnesses. Hearsay evidence, is, of course, admissible in grand jury proceedings. The Assistant United States Attorney gave appropriate instructions to the grand jury on that point.
This witness testified that on April 13, 1993, Miguel Parilla was shot to death at 360 East 137th Street in the Bronx. Parilla had a narcotics operation in the vicinity of 179th Street and Hughes Avenue, the Bronx. Parilla rented out his narcotics-selling location to the Nasty Boys, in exchange for heroin that the Nasty Boys would give to him. The leader of the Nasty Boys organization was Jose Muyet.
Parilla annoyed the Nasty Boys by asking for increasing amounts of heroin. Muyet decided that Parilla should be killed. Louis Quinones, a member of the Nasty Boys undertook to kill Parilla, but was unsuccessful.
This witness identified Steven Camacho, Jaime Rodriguez and Antoinio Feliciano as "associates of the Nasty Boys hanging out with the Nasty Boys." Tr. 12. Another member of the Nasty Boys discussed the Parilla matter with them. Muyet then instructed that individual to give a gun to Camacho, Rodriguez and Feliciano for their use in killing Parilla. That individual later saw the three defendants "at a location that the Nasty Boys were selling narcotics out of." Tr. 14. Muyet paid the defendants for their services. Rodriguez and Feliciano were later arrested. Feliciano was in possession of a gun which ballistic tests showed to be the gun used to kill Parilla.
The FBI agent who appeared before the grand jury on February 12, 1996 had participated in the investigation of the C & C Organization. He testified that James Albizu was a member of C & C. The government charges that Camacho and Rodriguez were also members of C & C, as well as associates of the Nasty Boys. The government does not charge that Feliciano had anything to do with the C & C Organization. Feliciano's only alleged association is with the Nasty Boys.
This witness testified that in early 1993, Rodriguez and Camacho assisted Albizu in killing one Hector Ocasio, also known as "Neno." This killing was related to and in furtherance of the activities of the C & C Organization. Later in 1993, according to this witness, Rodriguez told Albizu that an individual in the Hunts Point section of the Bronx wanted to take over Miguel Parilla's drug spot, located at 179th Street and Hughes Avenue. Albizu met with three individuals, including Muyet. Rodriguez told Albizu that "he [Rodriguez] was going to have something to do with carrying out the wishes of this gang from Hunts Point." Tr. 10.
Albizu "felt because they [Rodriguez and Camacho] had assisted him, that he should help them in their plans." Tr. 11.
On April 13, 1996, the day of Parilla's murder, Camacho, Rodriguez and Feliciano told Albizu "what role Albizu would play in the murder of Parilla." Tr. 13. Camacho and Rodriguez tricked Parilla into thinking that Albizu knew a drug supplier who would sell Parilla cocaine. Rodriguez, Camacho and Feliciano brought Parilla to the Mitchell Projects at East 137th Street, the Bronx, in the vicinity of where C & C operated. Tr. 13.
Camacho and Rodriguez introduced Parilla to Albizu at the Mitchell Projects. The four men then drove to another location on Willis Avenue. Camacho and Albizu remained in the car. Rodriguez and Feliciano took Parilla into a building where Parilla was killed.
The Governing Law
Rule 14, Fed.R.Civ.P., provides in pertinent part:
If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.
Where as in the case at bar multiple offenses and multiple defendants are joined in one indictment, the Second Circuit "invoke[s] only Rule 8(b) to test the validity of joinder regardless of which type of severance is sought." United States v. Turoff, 853 F.2d 1037, 1043 (2d Cir. 1988). Rule 8(b) provides:
Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.