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U.S. v. RICHARDS
April 20, 2000
UNITED STATES OF AMERICA
GLEN RICHARDS, DEFENDANT. UNITED STATES OF AMERICA V. ROBERT TARANTOLA, DEFENDANT.
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
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
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
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.
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
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
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 ...