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April 20, 2000


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


Defendants Glen Richards and Robert Tarantola are charged in separate indictments with conspiracy to distribute and possess marijuana and cocaine and related offenses. The government moves pursuant to Federal Rule of Criminal Procedure 13 to consolidate the two cases and try Richards and Tarantola together. Both defendants oppose the motion. Tarantola has also filed various pretrial motions, in which Richards joins.


Richards was charged in a three-count indictment returned in February of 1996 and unsealed on July 24, 1996. United States v. Glen Richards, No. 96 CR 675. Count One charges Richards with conspiring with others to distribute and possess with intent to distribute marijuana and cocaine between January 1992 and March 1993. Count Two charges him with attempt to distribute cocaine between November 18, 1992 and November 24, 1992. Count Three charges him with use of a telephone on February 1, 1993 to facilitate the distribution of marijuana.

Tarantola's indictment, which was returned and unsealed on the same dates as that of Richards, charges him in Count One with conspiracy to distribute and possess with intent to distribute marijuana and cocaine between December 1990 and March 1993, and in Count Two with distribution and possession with intent to distribute marijuana between January 1992 and April 1992. United States v. Robert Tarantola, No. 96 CR 676,



The government moves under Rule 13 to consolidate the trials of Richards and Tarantola, saying that it anticipates proving at trial that Richards and Tarantola were involved in different "spokes" of the same "wheel" conspiracy — a drug-trafficking scheme primarily based in Texas.

Dozens of other alleged members of this conspiracy were indicted in 1993. Several of them pleaded guilty and several others were found guilty in two separate trials before this Court. See United States v. Davila Moreno, et al., 93 CR 156; United States v. Sanchez and Miller, 93 CR 156.

The charges against Richards stem from three alleged sets of transactions involving the Texas-based conspiracy. The first was a series of marijuana shipments to and from Knoxville, Tennessee from October to December, 1992. Richards, who was based in Knoxville, allegedly received at least one shipment from Texas and delivered another, through a courier, to Chicago. The same courier then drove to the New York to receive drug proceeds from Tarantola. Second, Richards allegedly attempted to deliver cocaine to other members of the Texas-based conspiracy in the New York area in November 1992. Third, Richards allegedly attempted in "early 1993" to pick up drug proceeds in New York from other members of the conspiracy.

The government says its proof of these allegations against the two defendants "will come, almost entirely, from the same" evidence. For example, the government expects to call four cooperating witnesses who worked for the Texas-based organization and others, and who allegedly delivered drugs and picked up drug proceeds from both Richards and Tarantola. They also expect to offer recorded conversations between two New York-based members of the Texas organization to establish the participation of both defendants in the alleged deliveries of drugs and drug proceeds. The government says it will offer other evidence against both defendants, including address books and the testimony of Federal Bureau of Investigations agents investigating the broader conspiracy.

Defendants oppose a joint trial on two grounds: first, that the two cases are insufficiently related to permit joinder; and second, that joinder will result in a "prejudicial spillover" from one case to the other, depriving each defendant of a fair trial.


Rule 13 of the Federal Rules of Criminal Procedure states:

The court may order two or more indictments or informations or both to be tried together if the offenses, and the defendants if there is more than one, could have been joined in a single indictment or information.

Fed.R.Crim.Pro. 13.

Rule 8(b)of the Federal Rules of Criminal Procedure governs the question whether the defendants "could have been joined in a single indictment." See United States v. Halper, 590 F.2d 422, 428 (2d Cir. 1978). That rule states:

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.

Fed.R.Crim.Pro. 8(b).

Defendants argue that the propriety of joinder under Rule 13 must be judged solely on the basis of the indictments, without reference to evidentiary proffers or other pre-trial representations made by the government. According to defendants, Rule 8(b) — and by extension, Rule 13 — is a "rule of pleading." They argue that the indictments against Richards and Tarantola allege no facts that would tie one defendant to the other, even indirectly.

For this argument, defendants rely exclusively on decisions interpreting joinder of defendants under a single indictment pursuant to Rule 8(b). In particular, they cite two decisions from the Eastern District of New York. United States v. Rucker, 32 F. Supp.2d 545, 548 (E.D.N.Y. 1999) ("Proper joinder is determined from the face of the indictment"); United States v. Ashley, 905 F. Supp. 1146, 1164 (E.D.N.Y. 1995) ("Rule 8(b) is a pleading requirement" under which "the propriety of joinder is to be determined solely by examining the allegations in the Indictment.").

But these statements do not represent the settled law in the Second Circuit. Compare United States v. Friedman, 854 F.2d 535, 561 (2d Cir. 1988) ("In evaluating the defendants' claims of misjoinder under Rule 8(b) . . . our task is limited simply to determining whether the indictment properly alleged their participation in a RICO conspiracy."), with Pacelli v. United States, 588 F.2d 360, 367 n. 20 (2d Cir. 1978) ("necessary linkage" between coconspirators, while possibly absent from the face of the indictment, could be "established by the evidence presented at trial").

Other circuits are split on the question. See United States v. Spriggs, 102 F.3d 1245, 1255 (D.C.Cir. 2000) (court may look beyond indictment to pretrial evidence and representations by government); United States v. McGill, 964 F.2d 222, 240-41 (3d Cir. 1992) (same); United States v. Talavera, 668 F.2d 625, 629 (1st Cir. 1982) (same); but see United States v. Marzano, 160 F.3d 399, 401 (7th Cir. 1998) (basis for Rule 8(b) joinder must appear in indictment); United States v. Wadena, 152 F.3d 831, (8th Cir. 1998) (same); United States v. LaSpesa, 956 F.2d 1027, 1032 (11th Cir. 1992) (same).

Unlike the decisions cited by defendants, this case is not one in which defendants were indicted together pursuant to Rule 8(b), but concerns a post-indictment motion for joinder under Rule 13.

Rule 13 is quite clearly not merely a "rule of pleading." Its purpose is to allow joinder after the original indictments. It would make little sense to exclude from consideration under Rule 13 any factual developments, refinements in the government's evidence, or aspects of judicial economy that have become apparent after the grand jury found the initial indictments. In fact, such developments, in most cases, will prompt a Rule 13 motion for joinder.

That is not to say that the substantive standard for joinder is any more lax under Rule 13 than under Rule 8. See Fed. R.Crim.Pro. 13 (joinder allowed only where offenses and the defendants "could have been joined in a single indictment"). Indeed, courts must exercise particular care in a Rule 13 case to avoid jury confusion or unfair prejudice to defendants. See Halper, 590 F.2d at 428. But even if Rule 8(b) were to be given the narrow reading urged by defendants — a reading not expressly endorsed by the Second Circuit — the timing and procedural posture of a Rule 13 motion necessarily broadens the scope of the factors bearing on the propriety of joinder.

The Second Circuit has recognized the different concerns raised by Rule 8(b) and Rule 13: the former posits a question of law reviewed de novo at the appellate level, while the latter is reviewed only for abuse of discretion. See United States v. Turoff, 853 F.2d 1037, 1042 (2d Cir. 1988). Thus, "the decision to order two indictments tried together is one to be made in the district court's discretion." United States v. Halper, 590 F.2d 422, 428 (2d Cir. 1978).

In applying Rule 13, courts in this circuit have looked beyond the face of the indictment to determine whether joinder is proper. See Halper, 590 F.2d at 429 (Rule 13 joinder of offenses held improper in part on basis of representations at pretrial hearings and proof at trial); United States v. Perez, 574 F. Supp. 1429, 1438 (E.D.N.Y. 1983) (granting Rule 13 motion in part because "the evidence to be introduced at trial will likely be the same for each" defendant); United States v. Gordon, 493 F. Supp. 814, 821-22 (N.D.N.Y. 1980) (ordering joinder of two indictments in part on basis of supporting affidavits), aff'd 655 F.2d 478, 485 (2d Cir. 1981); United States v. Persico, 621 F. Supp. 842, 855 (S.D.N.Y. 1985) (denying joinder where bill of particulars showed no relation between offenses in two indictments); cf. United States v. De Yian, No. 94 cr 719, 1995 WL 368445 at *10 (S.D.N.Y. 1995) (Rule 13 "appears to support the position that the basis for [Rule 8(b)] joinder may come from outside the indictment").

In short, in determining whether to allow separately indicted defendants to be tried together pursuant to Rule 13, the Court may look beyond the face of the indictment to the government's representations of its anticipated proof.


This standard is met where the acts charged are "unified by some substantial identity of facts or participants, or arise out of a common scheme or plan." United States v. Attanasio, 870 F.2d 809, 814 (2d Cir. 1989) (citations and internal quotations omitted). "Rule 8(b) does not permit joinder of defendants solely on the ground that the offenses charged are of "the same or similar character.'" Turoff, 853 F.2d at 1042. But joinder is appropriate where a "reasonable person would easily recognize the common factual elements." Id. at 1044.

In deciding whether separately indicted defendants may be tried together, the court looks to "the implicit, and often conflicting policies of Rule 13[:] the promotion of the economical and efficient administration of criminal justice by the avoidance of needless multiple trials and the protection of criminal defendants from the unfair prejudice that may be caused by the joining of indictments." Halper, 590 F.2d at 428.

The balance clearly weighs in favor of joinder here. Richards and Tarantola are each charged with taking part in the same conspiracy to distribute cocaine and marijuana from Texas to various locations, including Knoxville and New York City. Defendants also interacted with some of the same drug and money couriers, three of whom may be key witnesses at a joint trial. Thus, the illegal acts allegedly committed by Tarantola and Richards share a ...

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