The opinion of the court was delivered by: Glasser, United States District Judge
In this Memorandum and Order, the Court considers two motions to sever. Sharief Russell ("Russell") moves for a separate trial on the ground that his case is improperly joined under Fed.R.Crim.P. Rule 8(b) and, in the alternative, because joinder is prejudicial under Fed.R.Crim.P. Rule 14. Defendant Josiah McTier ("McTier")*fn1 moves to sever under Rule 14, and also argues that joinder will violate his statutory and constitutional rights to a Speedy Trial. Both parties assert that a joint trial will prejudice them because of (1) prejudicial evidentiary spillover, and (2) prejudice in being tried before a "death-qualified" jury for non-death-eligible crimes. While the Court was reviewing these motions, the government submitted a superseding indictment that charged Russell under the racketeering and racketeering conspiracy counts, as well as murder in aid of racketeering in Count 25, thus eviscerating the basis of his motion. (11-02-2005 Superseding Indictment, Counts 1 & 2). The following discussion therefore applies primarily to McTier's motion.
For the following reasons, both defendants' motions to sever are denied.
For the purposes of this motion, the Court recounts only that portion of the record relevant here. Russell and McTier are two of seven individuals initially charged in a twenty-six count indictment of May 25, 2005, alleging a range of offenses including racketeering, racketeering conspiracy, murder in aid of racketeering, conspiracy to murder in aid of racketeering, attempted murder in aid of racketeering, assault in aid of racketeering, and numerous firearm counts. Although neither Russell nor McTier were charged in the May 25, 2005 Indictment under counts one and two--racketeering and racketeering conspiracy, respectively--a superseding indictment was returned on November 2, 2005 that charged Russell with racketeering and racketeering conspiracy, as well as an additional murder charge as a racketeering act.*fn2 Aside from the aforementioned change to the charges against Russell, the charges against these defendants remain essentially the same as in the original indictment. McTier is charged in counts ten and eleven. Count ten charges attempted murder in aid of racketeering under 18 U.S.C. §§ 1959(a)(5) and 3551 et seq., and count eleven charges use of a firearm under 18 U.S.C. §§ 924(c)(1)(A)(i)-(iii) and 3551 et seq. Specifically, it alleges that McTier, "together with others, for the purpose of maintaining and increasing their positions in the Folk Nation, an enterprise engaged in racketeering activity, did knowingly and intentionally attempt to murder one or more other persons..." (5-25-2005 Indictment, ¶ 40). Russell is charged with the same crimes, although stemming from separate incidents, in counts twenty-seven and twenty-eight. (Id. ¶ 65).
Both defendants moved for separate trials, asserting that they were improperly joined, joinder is prejudicial, and/or joinder will deny them a right to a speedy trial. Russell's motion was made moot by the November 2 Superseding Indictment and is therefore denied, although his 8(b) claim is briefly mentioned.
I. Legal Standard for Motion to Sever
A. Analysis under Rule 8(b)
Only defendant Russell asserts that the government has improperly joined him under Rule 8(b). This Court has recently dealt with virtually identical challenges. See, e.g., United States v. Coffey et al., 361 F.Supp.2d 102 (E.D.N.Y. 2005) (Glasser, J.); United States v. Bellomo, 263 F.Supp.2d 561 (E.D.N.Y. 2003) (Glasser, J.); United States v. Imbrieco, 2003 WL 1193532 (E.D.N.Y. 2003) (Glasser, J.); United States v. Rucker, 32 F.Supp.2d 545 (E.D.N.Y. 1999) (Glasser, J.). In his motion, defendant Russell asserted that because he was not named in either the racketeering or racketeering conspiracy counts, and because the acts which he was alleged to have committed occurred several years after the acts in indictment, joinder was improper under Rule 8(b) of the Federal Rules of Criminal Procedure. The superseding indictment now charges him with both racketeering and racketeering conspiracy, eliminating the basis for this motion. When a defendant is asserted to be a member of the exact same conspiracy or racketeering network as his co-defendants it is proper to join them under Rule 8(b). If the court finds that the prosecution satisfies the Rule 8(b) limitations, then the issue of severance is determined by reference to Rule 14. (Rucker, 32 F.Supp.2d at 548).
B. Prejudice Analysis Under Rule 14
Zafiro v. United States, 506 U.S. 534, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) reaffirmed the preference for joint trials of defendants who are indicted together. As this Court echoed the Supreme Court in Rucker:
The liberal rule of joinder is designed to promote efficiency and 'serve[s] the interest of justice by avoiding the scandal and inequity of inconsistent verdicts.' Joint trials, in addition, limit inconveniences to witnesses, avoid delays in bringing defendants to trial and permit ...