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U.S. v. BUTLER

October 6, 2004.

UNITED STATES OF AMERICA,
v.
DAMIAN BUTLER, KIMBERLY JONES, MONIQUE DOPWELL, and HILLARY WESTON, Defendants.



The opinion of the court was delivered by: GERARD E. LYNCH, District Judge

OPINION AND ORDER

On February 25, 2001, a gun battle erupted on the streets of Manhattan outside the studio of a radio station specializing in hip-hop music, allegedly between members of the respective entourages of two recording artists. At least one person was shot and seriously wounded. The United States Attorney undertook an investigation into these events, which eventually resulted in the instant indictment, in which four defendants — Damion Butler, Kimberly Jones, Monique Dopwell, and Hillary Weston — stand accused in seventeen counts of offenses ranging from possession of firearms by a convicted felon, through perjury and obstruction of justice, to fraudulent use of a passport. A somewhat unusual feature of the indictment is that of the seventeen counts, fifteen name only one defendant, and the remaining two charge two defendants jointly. No count in the indictment charges all four defendants, or even as many as three of them. Unsurprisingly, all four defendants move for severance of the charges, though they differ in some respects in their suggestions for carving the indictment into separate trials. The motions will be denied.

BACKGROUND

  I. The Indictment

  In broad outline, the indictment charges that the shooting incident grew out of rivalries among performers in the musical genre known as rap or hip-hop.*fn1 Defendant Jones is a well-known performer professionally known as "Lil' Kim." The other defendants are friends and business associates of hers. Butler and Suif Jackson, named as a defendant in an earlier version of this indictment, served as sometime bodyguards or security personnel for Jones.*fn2 Weston was a manager for Jones, associated with a number of companies that provided various business services in connection with her career.

  On February 25, 2001, Jones made a personal appearance at the studio of radio station WQHT, accompanied by various friends and associates including Dopwell and Butler. After the show, Jones, Dopwell, Butler, and Jackson were standing on the sidewalk outside the radio station when another rap performer, scheduled for a later appearance at the same station, approached, accompanied by a similar entourage. After an altercation perhaps stemming from rivalry between the performers,*fn3 Jackson and Butler fired at the other group, seriously wounding one person.*fn4 Count One of the indictment charges Butler, a convicted felon, with unlawfully transporting and possessing a firearm in connection with this incident.

  A federal grand jury later began an investigation into the shooting incident. Jones and Dopwell, among others, were subpoenaed to appear before the grand jury and compelled to testify under grants of immunity. The indictment charges that they perjured themselves in testifying, among other things, that Butler had not been present at the radio station on February 25, 2001. Jones also falsely denied knowing Jackson. These allegedly false statements, or variations on them, were made numerous times in the course of several grand jury appearances, and form the basis for Counts Two through Twelve of the indictment. Count Two charges that Jones and Dopwell conspired to obstruct the grand jury's investigation, Count Twelve charges them with a substantive crime of obstruction, and Counts Three through Eleven each charge either Jones or Dopwell with specific instances of perjury or false statements in connection with their testimony.

  Weston, unlike the other defendants, was not present at the radio station at the time of the shooting. During the course of the investigation, subpoenas were served on Weston personally and on some of the entertainment companies (the "Queen Bee Companies") with which she and Jones were associated. Weston appeared before the grand jury in response to these subpoenas, specifically testifying that she was responsible for complying with the Queen Bee subpoenas. The subpoenas, and subsequent directives to Weston during the course of her testimony, called for the production of various documents and photographs. Although Weston produced various documents in response to these commands, Weston withheld documents and photographs tending to show that Butler and Jackson had a relationship to the Queen Bee Companies, and thus to Jones. Counts Thirteen and Fourteen charge Weston with obstruction of justice in connection with the withholding of these documents.

  Among the documents allegedly withheld were documents tending to show that Butler had traveled with or on behalf of the Queen Bee Companies using the name Sean Thomas Conner (and variations thereof). Counts Fifteen through Seventeen charge Butler with obtaining and using a passport under this fictitious identity, and with conspiring with others to do so. Weston is identified in Count Fifteen as having performed certain overt acts in connection with the conspiracy, although she is not charged under this indictment with any offense in this regard. II. The Motions

  All four defendants seek severances of different kinds. Jones seeks severance of the charges against her (and Dopwell) from those against Butler and Weston, arguing both that the charges are misjoined under Fed.R. Crim. P. 8(b) and that in any event they should be severed in the Court's discretion in the interests of fairness under Fed.R. Crim. P. 14. Dopwell seeks to sever only the charges against Butler, and only pursuant to Rule 14. Weston asks that the charges against her be severed completely from the rest of the indictment, based on Rules 8(b) and 14. Butler seeks a severance from Jones and Dopwell, and moves contingently that if Weston is granted a separate trial, the passport charges against him should be severed from the firearms charge, pursuant to Fed.R. Crim. P. 8(a).

  DISCUSSION

  I. Legal Standards

  Rule 8(b) permits the joinder of defendants 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." Such joined defendants may be charged either in the same counts or in separate counts, so long as this standard is met. Id. Thus, defendants may be joined even if not every defendant is charged with every offense in the indictment. Whether various acts constitute parts of the same "transaction" or a "series" within the meaning of this rule depends "not upon the immediateness of their connection as upon their logical relationship." United States v. Isaacs, 493 F.2d 1124, 1158 (7th Cir. 1974), quoting Moore v. New York Cotton Exch., 270 U.S. 593, 610 (1926). This standard is expressed in various ways in different appellate opinions, but the different formulations express the same idea. Joinder is appropriate where "the acts [are] unified by some substantial identity of facts or participants or arise out of a common plan or scheme," United States v. Attanasio, 870 F.2d 809, 815 (2d Cir. 1989) (citations and internal quotes omitted); where "the facts underlying each offense are so closely connected that proof of such facts is necessary to establish each offense," United States v. Welch, 656 F.2d 1039, 1049 (5th Cir. 1981) (same); where a "reasonable person would easily recognize the common factual elements," United States v. Turoff, 853 F.2d 1037, 1044 (2d Cir. 1988).*fn5

  Even where defendants are properly joined, Rule 14 permits a Court to order separate trials where a defendant would be unfairly "prejudiced." See United States v. Cody, 722 F.2d 1052, 1061 (2d Cir. 1983). Such motions are rarely granted. The interests of efficiency and consistency of outcome generally favor joint trials of defendants indicted together. Zafiro v. United States, 506 U.S. 534, 537 (1993). A defendant seeking a separate trial under Rule 14 thus faces the "heavy burden" of showing "substantial prejudice." United States v. Amato, 356 F.3d 230, 237 (2d Cir. 1994). A severance is only appropriate where joinder would cause prejudice so severe ...


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