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United States District Court, S.D. New York

October 6, 2004.


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


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.


  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).


  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 as to risk denial of a constitutionally fair trial. United States v. Diaz, 176 F.3d 52, 102 (2d Cir. 1999); United States v. Serpoosh, 919 F.2d 835, 837 (2d Cir. 1990).

  II. The Standards Applied

  With these standards in mind, the Court turns to the instant indictment. As the above description makes clear, defendant Weston is correct in suggesting that the charges in the case naturally divide into four groups: the firearms count against Butler, the perjury and obstruction charges against Jones and Dopwell, the obstruction charges against Weston, and the passport charges against Butler. (Weston Br. 2.) It thus makes sense to address sequentially which if any of these groups are properly joined to the others.

  A. The Firearms Charge and the Obstruction Conspiracy

  A principal thrust of Jones's and Dopwell's motions is that the firearms charge against Butler involves acts distinct in timing and nature from the perjury and obstruction charges against them, and that they would be unfairly prejudiced by having the non-violent crimes against them linked to the violent acts and felonious history of Butler. These arguments, however, are easily rejected.

  The perjury/obstruction charges against Jones and Dopwell are closely linked to the underlying crime alleged against Butler that, the Government claims, Jones and Dopwell were trying to cover up. Although Jones and Dopwell are not alleged to have aided and abetted Butler, or to have conspired with him, in connection with the possession or use of a firearm, they will certainly figure in the evidence that will be introduced by the Government in attempting to prove that offense. Jones is alleged to have been a good friend of Butler, who provided security services for her; Butler is alleged to have accompanied Jones and Dopwell to the radio station on the day in question; the shooting incident allegedly arose as a result of a history of friction between Jones and rival hip-hop artists; Jones and Dopwell are alleged to have been present at and to have witnessed Butler's shooting; and Butler and Dopwell are alleged to have been present at Jones's home in New Jersey later that evening.

  More importantly, the events involving Butler are integral to the perjury and obstruction charges against Jones and Dopwell. In order to prove the perjury and obstruction counts against them, the Government will inevitably have to prove the underlying facts that they are accused of covering up, and the true facts alleged to be inconsistent with their testimony. Thus, in order to prove the motive for the alleged cover-up, and to demonstrate that Jones and Dopwell lied in swearing that they did not see Butler on the date in question, the Government will have to prove that Butler accompanied Jones and Dopwell to the radio station, and that they were present when he fired a gun at the opposing entourage.*fn6

  Thus, the facts involving Butler's possession of a weapon on February 25, 2001, would be central to a separate trial of Jones and Dopwell on Counts Two through Twelve. While the commission of the offense and the subsequent cover-up are distinct offenses, they form an integrally connected whole as a series of acts or transactions having a "logical relationship." Isaacs, 493 F.2d at 1158. They arise out of a common nucleus of facts such that a "reasonable person would easily recognize the common factual elements." Turoff, 853 F.2d at 1044. Indeed, they are so closely connected that proof of the very same facts is necessary to establish each of the joined offenses, Welch, 656 F.2d at 1049.*fn7 Courts have repeatedly recognized the appropriateness of trying perjury or obstruction charges together with the underlying crimes to which the perjury relates, where proof of the alleged perjury requires proof of knowledge of the underlying crime. See, e.g., United States v. Shorter, 54 F.3d 1248, 1258 (7th Cir. 1995); United States v. Moreno Morales, 815 F.2d 725, 741-42 (1st Cir. 1987); United States v. Swift, 809 F.2d 320, 322 (6th Cir. 1987); United States v. Corbin, 734 F.2d 643, 650 (5th Cir. 1984); United States v. Kim, 595 F.2d 755, 770-71 (D.C. Cir. 1979); United States v. Weiss, 491 F.2d 460, 466-67 (2d Cir. 1974); United States v. Sweig, 441 F.2d 114, 118-19 (2d Cir. 1971); United States v. Cohn, 230 F. Supp. 587, 588-89 (S.D.N.Y. 1964). The Second Circuit has specifically recognized the usual appropriateness of joining underlying substantive crimes with perjury counts. United States v. Potamitis, 739 F.2d 784, 791 (2d Cir. 1984).

  For similar reasons, it cannot reasonably be argued that Jones and Dopwell will be prejudiced by being tried along with Butler. Their distinction between his alleged violent offense and their alleged non-violent crimes is superficial: The jury at a separate trial would hear the same evidence of Butler's alleged weapons possession and shooting as would a jury at a joint trial. The only evidence essential to Count One that would not be directly relevant to the charges against Jones and Dopwell is proof of Butler's prior felony conviction. Jones accordingly argues that a jury that learns of Butler's criminal history would be prejudiced against her. (Jones Br. 8.) But that argument is unpersuasive. A severance is not required simply because some evidence will be admissible only against one defendant; limiting instructions are usually sufficient to cure any prejudice. United States v. Spinelli, 352 F.3d 48, 55 (2d Cir. 2003). In this particular case, the indictment charges Butler with a prior instance of felonious possession of a weapon; thus, the criminal history alleged against him is no more serious than the very acts charged here, about which the jury would hear in any case. Evidence of a defendant's prior felony in a felon-in-possession case is admissible against that defendant, Old Chief v. United States, 519 U.S. 172, 186-87 (1997), subject to proper limiting instructions as to its permissible use. If the jury can be trusted not to misuse such information against the felon himself, it is fatuous to contend that a jury not otherwise persuaded beyond a reasonable doubt that Jones and Dopwell lied about Butler's presence at the scene of a violent crime would nevertheless be moved to convict them of perjury because Butler had an unrelated prior criminal conviction.*fn8

  Butler's claims of prejudice lack even superficial appeal. There is no plausible danger that spillover from evidence of Dopwell's or Jones's perjury could prejudice his defense. Realistically, it would be difficult for a jury to find that there was any perjury unless it finds that Butler is guilty of the crime charged; though a jury could in theory find Dopwell's and Jones's testimony was objectively false if the Government merely proves that Butler was present at the radio station, the defense that the witnesses merely forgot one of the many people present would be difficult to refute without the argument that Butler did something memorable on that day that Jones and Dopwell were motivated to cover up. In any case, the jury will be instructed to consider the evidence against each defendant separately, and there is no reason to believe it will not follow those instructions.

  Accordingly, there is no basis for severing Count One from Counts Two through Twelve, at the behest of any of the three defendants named in those counts.

  B. The Weston Obstruction Charges

  The charges against Weston present a closer question. While it is hard to conceive of a trial of the perjury and obstruction charges against Jones and Dopwell that does not overlap almost completely with a trial of the firearms charge against Butler, the Government could conceivably try the obstruction charges against Weston with less reference to the underlying events. Unlike the perjury allegedly committed by Jones and Dopwell, which at its heart involves denying that they witnessed the crime allegedly committed by Butler, the obstruction charges against Weston, who was not present at the shooting incident, involve simply the failure to produce documents called for by a grand jury subpoena. Considered narrowly, the charges against Weston can be proved simply by establishing the subject of the grand jury's inquiry, putting into evidence the subpoenas and grand jury directives that required production of the documents, and then demonstrating that Weston had control of those documents but failed to produce them. Details of what occurred on February 25, 2001, are not essential to proving these charges, and the argument that such details could prejudice Weston is not frivolous. On close analysis, however, Weston's arguments also fail.

  With respect to the propriety of the joinder, Weston's alleged acts are part of "the same series of acts or transactions" as Counts One through Twelve, which is all that is required by Rule 8(b). This is most evident with respect to the perjury and obstruction counts against Jones and Dopwell. Although Weston is not alleged to have conspired with Jones and Dopwell to obstruct justice, and they are not charged with playing a role in her alleged obstruction, the three defendants, who are friends and business associates of each other, are all charged with having engaged in efforts to obstruct the same grand jury investigation into the same incident, in order to protect the same individual, Butler, who in turn is also a friend and associate of all three. It is not easy to think of a clearer example of crimes that constitute a "series" than these closely related efforts to obstruct the same investigation.

  Moreover, the acts charged are "unified by some substantial identity of facts or participants," Attanasio, 870 F.2d at 815, such that a "reasonable person would easily recognize the common factual elements," Turoff, 853 F.2d at 1044. If a bare bones trial of the Weston charges can be imagined, it does not follow that such a thin presentation of evidence is required. At a separate trial of Weston, more detailed evidence about Butler's actions, and about the mutual relationships among all four defendants, would clearly be admissible to establish Weston's motive for the alleged obstruction, and to refute any claim that the failure to produce subpoenaed materials was an innocent mistake. Similarly, the testimony about the activities of the grand jury that would be required in both the Jones/Dopwell and Weston obstruction cases would completely overlap. The bottom-line, inescapable fact is that the shooting incident and the alleged plot to cover up the involvement of close associates of Jones in that incident are inextricably intertwined as part of the same sequence of events. While Butler's alleged possession and use of a gun on February 25, 2001, and the ensuing alleged cover-up are not claimed to have stemmed from a single pre-arranged conspiracy, it is clear that the different acts of obstruction charged against Jones, Dopwell, and Weston were a direct result of the underlying offense, and are alleged to have been committed by closely-connected individuals from the same underlying motives. The overlap of participants and facts is certainly substantial.

  Once again, the same arguments that demonstrate the propriety of the joinder minimize any unfair prejudice. Much of the evidence that would be used at a joint trial would also be admissible at a separate trial of Weston. While it is not clear that evidence of Jones's and Dopwell's alleged perjury would be admissible at such a separate trial, it cannot be said that the joinder of these two claims of different types of obstruction would substantially prejudice any of the obstruction defendants. The two sets of crimes alleged are separate, involving separate actions by different defendants acting in different ways (false testimony in one case, defiance of a subpoena in the other), and so would be relatively easy for a properly-instructed jury to keep separate. Thus, although the question is closer, on balance Weston has not demonstrated a sufficiently substantial risk of prejudice to warrant a separate trial.

  Accordingly, the motion to sever Counts Thirteen and Fourteen is denied.

  C. The Passport Offenses

  The passport offenses charged against Butler (Counts Fifteen through Seventeen) bear the most tenuous relationship to the events of February 25, 2001, and to the alleged plot or plots to obstruct the investigation of those events. The conspiracy to obtain a false passport for Butler is alleged to have begun long before that incident, and his use of the passport is not alleged to have furthered in any way either the shooting or the cover-up. However, none of the defendants seeks to sever those counts, and Butler himself seeks such a severance only if Weston's motion were granted. Since that motion has been denied, there is no pending request to separate those counts. Nevertheless, it is reasonable to briefly consider whether the joinder of these counts risks depriving any defendant of a fair trial. It is clear that they do not. The existence of the false passport will inevitably become known to a jury considering the Weston obstruction charges, since documents relating to it are among the documents the Government contends that Weston failed to produce to the grand jury. It is undoubtedly for this reason that Butler made his motion conditional: If the Weston charges were severed, there would be no need to refer to the passport issues at a trial limited to the firearms charge and the Jones/Dopwell obstruction, and Butler would have a strong argument that the passport charges are unrelated and potentially prejudicial. If, however, the Weston obstruction counts are properly joined, the passport charges will inform the jury of no alleged misconduct by Butler that it will not hear in any event. Those charges, moreover, are unlikely to inflame the jury to convict Butler of the much more serious firearms offense if the latter is not fully proved beyond a reasonable doubt.

  Nor will the passport charges prejudice any other defendant. The charges will involve a limited and discrete quantum of evidence, and do not involve shocking or outrageous actions. The jury will be instructed to consider each offense and each charged individual separately, and it should be a simple matter for the jury to separate the passport charges from the distinct charges against the other defendants.

  Accordingly, Butler's conditional motion to sever the passport charges is denied as moot, and the Court finds no sufficient reason to sever them sua sponte.


  The various motions for severance are denied. SO ORDERED.

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