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UNITED STATES v. CAMACHO

May 10, 1996

UNITED STATES OF AMERICA, against STEVEN CAMACHO, JAIME RODRIGUEZ, and ANTONIO FELICIANO, Defendants.


The opinion of the court was delivered by: HAIGHT

 HAIGHT, Senior District Judge:

 Defendants Steven Camacho, Jaime Rodriguez and Antonio Feliciano move under Rule 14, Fed.R.Crim.P., for an order severing certain counts from a superseding indictment returned on February 12, 1996: the twelfth superseding indictment in this case. In addition, Feliciano moves to be severed from a trial of defendants Camacho and Rodriguez. The government opposes these motions.

 At a status conference held on March 14, 1996, counsel for all defendants stated their intention to file severance motions. The Court set down a motion schedule, with which the parties have complied.

 Prior to the date for submission of any motion papers, the Court entered a Memorandum and Order dated March 25, 1996, directing the government to furnish responses to the Court's inquiries pertinent to the severance issue. Familiarity with that Memorandum and Order is presumed. The government has complied. It has furnished to the Court for in camera inspection all the grand jury evidence which the government contends "support[s] the connection between the Parilla murder and the C & C Organization alleged in Counts Nine and Ten of this Twelfth Superseding indictment." Slip op. at 4. In response to that direction, the government furnished testimony of a New York City Police Department detective given to the grand jury on February 7, 1996, and testimony given by an FBI agent on February 12, 1996.

 The Memorandum of March 25, 1996 also directed the government to file and serve an affidavit "explaining its view of the manner in which the counts relating to the Parilla murder" 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.

 I.

 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.

 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.

 II.

 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 ...

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