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March 3, 1999


The opinion of the court was delivered by: Nickerson, District Judge.


The superseding indictment in this case contains thirteen counts and makes various charges against the five defendants, four New York City police officers and one police sergeant.

Count One charges that four defendants, Police Officers Justin A. Volpe, Thomas Bruder, Charles Schwarz, and Thomas Wiese, conspired to deprive Abner Louima of his federal civil rights by assaulting him while handcuffed and in police custody in a police car and in a 70th Precinct restroom. Counts Two through Four are substantive counts alleging assaults in a police car and an assault in the restroom.

Count Five charges Police Sergeant Michael Bellomo as an accessory after the fact by assisting the officers to hinder and prevent their apprehension and trial. Count Nine charges Volpe with witness tampering by threatening Louima to prevent him from telling a United States law enforcement officer of an assault. Count Ten accuses Bellomo of making a false statement to the Federal Bureau of Investigation that he had authorized an arrest of Louima. Count Thirteen alleges that Bruder, Schwarz, and Wiese conspired to obstruct justice by providing false statements to the Kings County District Attorneys Office, the Police Department, and the Federal Bureau of Investigation in an effort to exculpate Schwarz as to the alleged assault of Louima in the restroom.

Count Six charges Volpe and Bellomo with conspiring to deprive Patrick Antoine of his federal civil rights by unlawfully assaulting him and then falsely arresting him to conceal the assault. Counts Seven and Eight allege substantive counts charging the assault and false arrest of Antoine. Count Eleven charges Bellomo with falsely stating to the Federal Bureau of Investigation that he saw Patrick Antoine charge into Volpe. Count Twelve charges Bruder with a similar false statement.

On March 2, 1999 the government moved to dismiss Count Twelve. The court will grant this motion.

The remaining charges in the superseding indictment can be identified as follows:


COUNT  CHARGE                                  DEFENDANTS
  1      CONSPIRACY TO DEPRIVE                   VOLPE, BRUDER,
  2      DEPRIVATION OF CIVIL                    SCHWARZ AND WIESE
         RIGHTS (CAR ASSAULT # 1)
  3      DEPRIVATION OF CIVIL                    VOLPE, BRUDER,
         RIGHTS (CAR ASSAULT # 2)                SCHWARZ, AND WIESE
  5      ACCESSORY AFTER THE FACT                BELLOMO
         (CAR ASSAULT # 2)
  9      OBSTRUCTION OF JUSTICE —                VOLPE


COUNT  CHARGE                                  DEFENDANTS
         (FALSE ARREST)

The court will now decide the numerous motions made by the defendants.

I. Motions for Severance

Each of the five defendants seeks to sever his case from the cases of one or more of his co-defendants or to sever some of the charges. The government consents, and defendants do not object, to the severance of Count Thirteen. Otherwise, the government opposes defendants' motions. The court will sever Count Thirteen.

Persons indicted together for crimes arising out of a similar series of acts or involving substantially the same evidence should generally be tried together. See United States v. Corr, 543 F.2d 1042, 1052 (2d Cir. 1976). Joint trials allow witnesses and the court to avoid the burden of successive trials on the same issues and, in the case of complex cases, "permit the jury to see a comprehensive presentation of the entire enterprise and the role played by each participant." United States v. Persico, 621 F. Supp. 842, 852 (S.D.N.Y. 1985); see United States v. Lyles, 593 F.2d 182, 191 (2d Cir. 1979).

Although there is a "preference" for joint trials of defendants indicted together, Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 937, 122 L.Ed.2d 317 (1993), Rule 14 of the Federal Rules of Criminal Procedure provides that where it appears joinder may prejudice a defendant or the government, the court may sever counts or defendants. That rule states in relevant 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

Such a severance is justified only where joinder would "compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro, 506 U.S. at 539, 113 S.Ct. at 938. Even if defendants can establish prejudice, Rule 14 does not require severance but "leaves the tailoring of the relief to be granted, if any, to the district court's sound discretion." Id. at 538-39, 113 S.Ct. at 938.

(i) Volpe's Motion

Volpe seeks severance from all of his codefendants except Bellomo on the ground that his defense and those of other defendants are mutually antagonistic. He cites (1) Schwarz's televised statement on the television show 60 Minutes that Louima was assaulted in the restroom in the manner described by Louima; (2) Schwarz's and Wiese's assertions that they are not guilty of the car assault charges (Counts Two and Three); (3) Bruder's statement to federal agents implicating Volpe in a confrontation with Louima outside of the Club Rendezvous and in an assault of Louima in the restroom; and (4) Wiese's statement to the Kings County District Attorney's Office on August 17, 1997 implicating Volpe in the restroom assault.

A "mutually antagonistic" defense is one creating a conflict so irreconcilable that acceptance of one defendant's defense will lead the jury to convict the other. See United States v. Salameh, 152 F.3d 88, 116 (2d Cir. 1998). "A simple showing of some antagonism between defendants' theories of defense does not require severance." United States v. Carpentier, 689 F.2d 21, 27-28 (2d Cir. 1982).

As Zafiro v. United States makes clear, "[m]utually antagonistic defenses are not prejudicial per se." 506 U.S. at 538, 113 S.Ct. at 938. But such defenses may violate a specific trial right of a defendant by compromising the opportunity to present an individual defense. There are only a few reported cases where the facts establish the existence of mutually antagonistic defenses between co-defendants. See, e.g., United States v. Tootick, 952 F.2d 1078 (9th Cir. 1991); United States v. Romanello, 726 F.2d 173 (5th Cir. 1984). Such a case is one where, in effect, a defendant's counsel becomes a "second prosecutor," who "in order to zealously represent his client . . . [does] everything possible to convict the other defendant." Tootick, 952 F.2d at 1082. The antagonism in the defenses thus may inhibit the jury from evaluating the evidence against each defendant based on that defendant's own acts and statements, before concluding the prosecution has proved its case beyond a reasonable doubt as to each defendant.

Volpe does not articulate any specific prejudice that might arise from the allegedly antagonistic defenses. He simply states that his co-defendants have made out-of-court statements suggesting they have defenses he alleges are antagonistic to his defense. He claims this is a sufficient ground for severance. This is not the law.

All of these statements if offered at trial would be admissible against the defendants making them. But unless some exception to the hearsay rule applies, they would not be admissible against others and would be subject to the rules developed under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

Volpe first argues that his and Schwarz's defenses to the bathroom assault charge are mutually antagonistic because Schwarz allegedly said on television that he believed that Louima had been sexually assaulted in the manner described by Louima. Such a belief is hardly evidence. In any event, Schwarz allegedly stated also that he did not know who committed the assault and that he did not participate in it. Even if this statement were admitted, the jury could believe that Schwarz did not participate in the assault without concluding that Volpe did participate. There is no irreconcilable conflict or prejudice arising from Schwarz's statement.

Volpe's defenses to the two alleged car assaults are not mutually antagonistic to Schwarz's and Wiese's defenses. Volpe is not charged in the first car assault (Count Two). The government states that it will not offer proof that Volpe was an unindicted participant in that assault. Volpe does not explain what he thinks Schwarz, Bruder, and Wiese will offer as a defense to the second car assault nor why his defense will be mutually antagonistic. Apparently those three will argue that there was no such assault (as Wiese has previously stated), a defense not inconsistent with a claim by Volpe that he did not commit such an assault.

Volpe argues that two sets of Bruder's statements made pursuant to a proffer agreement are antagonistic to his defense: (1) statements implicating Volpe in the initial confrontation outside the Club Rendevous leading to Louima's arrest, and (2) statements implicating Volpe in the restroom assault of Louima. The first set of statements do not appear to inculpate Volpe but seem to exculpate him. Moreover, in conformity to the proffer agreement with Bruder, the government presumably was going to use the statements only to prove Count Twelve against Bruder. As stated above, that count will be dismissed.

Volpe's motion for severance based on the second set of statements is without merit. Those statements relate to matters with which Bruder is not charged. There is no basis for Bruder to offer the statements on his case or as inculpatory of Volpe.

Similarly, while Volpe argues that Wiese's statements to the Kings County District Attorney's Office implicating Volpe in the alleged restroom assault of Louima are antagonistic to his defense, there is no basis for Wiese to offer them in his defense or as inculpatory of Volpe. Moreover, Wiese is not even charged with the restroom assault.

Volpe is not entitled to a severance.

(ii) Schwarz's Motion

Schwarz seeks severance from Wiese and Bruder alleging that otherwise he will be denied his constitutional right to call witnesses and present a complete defense. He states that at a separate trial, he will seek to call Wiese and Bruder as witnesses to support a defense that he did not assault Louima either in the patrol car or the restroom. Wiese has apparently stated he did not see Schwarz assaulting Louima in either of those places. Bruder has allegedly stated he did not see Schwarz go with Louima to the restroom.

In deciding these claims the court will consider: (1) the sufficiency of the showing that the co-defendant would testify at a severed trial and waive his Fifth Amendment privilege; (2) the degree to which the exculpatory testimony would be cumulative; (3) the counter arguments of judicial economy; and (4) the likelihood that the testimony would be subject to substantial, damaging impeachment. These factors are not exclusive. See United States v. Finkelstein, 526 F.2d 517, 524 (2d Cir. 1975).

These factors weigh against Schwarz's motion. First, he has not made a sufficient showing that Bruder and Wiese would waive at a separate trial their Fifth Amendment privilege and testify on Schwarz's behalf. Bruder and Wiese have not submitted affidavits to that effect. See United States v. Turoff, 652 F. Supp. 707, 712 (E.D.N.Y. 1987) (a co-defendant's "proffer of testimony, in the absence of an affidavit stating his willingness to take the stand, cannot create much confidence that he actually would testify were the trials severed."). In addition, the alleged willingness of Bruder and Wiese to testify for Schwarz is conditioned on their being tried first, thus drawing into question their good faith. See United States v. Bari, 750 F.2d 1169, 1177 (2d Cir. 1984); Turoff, 652 F. Supp. at 713.

Moreover, it appears that any such testimony by Bruder and Wiese will be subject to substantial impeachment.

In addition, Schwarz asks for severance on the ground that the court's decision to empanel an anonymous and partially sequestered jury will prejudice him, whereas if he were tried alone, he would not incur this prejudice. The fact that a jury is anonymous and partially sequestered does not mean it cannot be fair and impartial. See, e.g., United States v. Amuso, 21 F.3d 1251, 1264 (2d Cir. 1994). Schwarz is not entitled to severance.

(iii) Bruder's Motion

Bruder moves for severance from Volpe on the ground that at a joint trial the jury will attribute Volpe's acts to him. The claim is speculative. Bruder fails to show any genuine risk of prejudicial spillOVER. tHE MOTION IS DENIED.

(iv) Wiese's Motion

Wiese moves for severance from Volpe, Bruder, and Bellomo. Alternatively, he seeks severance of the Louima-related assault counts (Counts One through Four) from the remaining counts (Counts Five through Eleven).

Wiese first argues that his defenses to the assault charges are mutually antagonistic to Volpe's defenses. Volpe and Wiese are charged jointly in only one assault, Count Three. Volpe's apparent defense to that count is that he did not participate in the car assault. That defense does not require a jury finding that Wiese did participate. The jury could believe (as Wiese previously has stated) that the car assault did not occur at all.

Wiese next argues that two of Bruder's statements if offered in evidence would incriminate Wiese. These statements are: (1) Bruder's statement to law enforcement officers that he saw Wiese and Volpe walking Louima toward the rear of the stationhouse in the direction of the restroom; and (2) Bruder's statement to Wiese that "I thought we were supposed to be partners" to which Wiese replied, "I told them everything, Tommy, I told them everything."

The government states it will not offer either of these statements during its case-in-chief at the trial of Counts One through Eleven. Of course were Bruder to testify the government could cross-examine him.

Wiese's third argument that severance will somehow serve the interests of judicial economy is without merit and requires no comment.

Fourth, Wiese argues that the Louima-related assault counts (Counts One through Four) are improperly joined with the Antoine-related charges because they are wholly unrelated. Rule 8(b) of the Federal Rules of Criminal Procedure states in pertinent part: "[t]wo or more defendants may be charged in the same indictment . . . 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." That language means that joinder is proper where two or more persons' criminal acts are "unified by some substantial identity of facts or participants, or arise out of a common plan or scheme." United States v. Cervone, 907 F.2d 332, 341 (2d Cir. 1990) (internal quotations omitted).

Wiese argues that the only factual connection between the two conspiracies (the Louima-related charges and the Antoine-related charges) is that they occurred on the same evening. This statement is not supported by the proof that the government says it intends to offer.

According to the government, the two conspiracies are unified by a substantial identity of facts and participants. The government says it will show that both grew out of the same event, namely, a fight that occurred outside the Club Rendezvous on Flatbush Avenue around 4:00 A.M.; the assaults occurred within less than a block of each other and within moments of each other; the assaults were both motivated by a desire to inflict excessive and unjustified force on the two arrestees; and two of the defendants, Volpe and Bellomo, participated in both assaults. Wiese is charged only in connection with the assaults of Louima. Of course, under Rule 8(b), "all of the defendants need not be charged in each count." Fed.R.Crim.P. 8(b).

Counts One through Four and the Antoine-related charges arise from the same series of acts or transactions, and joinder is proper.

Wiese's motion for severance pursuant to Rule 14 is also unsubstantiated. Wiese argues that he will be "prejudiced" because the jury will unfairly attribute the violation of Antoine's civil rights to him. He has not been indicted in any of the Antoine-related charges. He suggests no basis for the claim, and makes only a conclusory statement that "massive amounts" of evidence relating to the Antoine charges and the obstruction charges will prejudice him. The government says that the quantity of proof of the Louima assaults will far outweigh the proof of the other charges. The court will make clear to the jury that it must consider the case against each defendant separately.

Wiese argues that the Louima-related assault charges (Counts One through Four) and the Louima-related accessory, obstruction, and false statement charges (Counts Five, Nine, and Ten) should be severed pursuant to Fed.R.Crim.P. 8(b) and 14. The court rejects the arguments.

The claims are properly joined under Rule 8(b) because all of the charges are part of the "same series of acts or transactions." The accessory and false statement counts (Counts Five and Ten) charge Bellomo with hindering the prosecution of those, including Wiese, who allegedly assaulted Louima. Plainly these counts are related to the assault charges. So too is the witness tampering count in which Volpe is charged with threatening Louima in order to prevent him from reporting the alleged assault to authorities.

Finally, Wiese argues that severance of Counts One through Four from Counts Five, Nine, and Ten is warranted because it will be "impossible" for the jury to determine whether Wiese assaulted Louima without considering the evidence that Bellomo tried to cover up that assault. It is hard to see why this should be so. The court will ...

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