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United States v. McCabe

October 19, 2006

UNITED STATES OF AMERICA
v.
CHRISTOPHER MCCABE, ALSO KNOWN AS "MOOSE," JAMES MAINELLO, ALSO KNOWN AS "JIMMY BALLS," GLENN GUADAGNO, GLENN GUADAGNO, JR., ALSO KNOWN AS "GLENN JR." AND "JUNIOR," BENJAMIN GARCIA, ALSO KNOWN AS "BENJI," VICTOR TORRES, ALSO KNOWN AS "KV," ONEIL PEREZ, ALSO KNOWN AS "GREEN EYES," AND MIGUEL CORDOVA, ALSO KNOWN AS "MARKY," DEFENDANTS.



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

MEMORANDUM AND ORDER

Pending before the Court are three severance motions, to wit (1) the motion of defendant Glenn Guadagno, Jr. ("Guadagno, Jr.") to sever the trial of Count One from the other five counts in the indictment, and to be tried separately from the other two defendants named in Count One; (2) the motion by defendant Christopher McCabe ("McCabe") to sever Count One from Counts Two through Six and to sever Count Five from Counts Two, Three, Four, and Six; and (3) the motion of Miguel Cordova ("Cordova") to sever Count Five from Counts One, Two, Three, Four, and Six.

BACKGROUND

Count One alleges a robbery conspiracy in violation of 18 U.S.C. § 1951(a), said to have occurred between October 2004 and March 2005. McCabe, along with James Mainello ("Mainello") and Guadagno, Jr., are named in that count.

Counts Two, Four, and Six charge McCabe and Glenn Guadagno ("Guadagno") (the father of Guadagno, Jr.) with conspiracy to use extortionate means to collect an extension of credit (1) from John Doe #2 between July and August 2004, (2) from John Doe #3 between July and September 2004, and (3) from John Doe #5 between August and December 2004, respectively, in violation of 18 U.S.C. § 894(a)(1).

Count Three charges McCabe and Guadagno with an extortionate collection of credit against John Doe #2 on August 4, 2004 in violation of 18 U.S.C. § 894(a)(1). Count Five alleges an extortion conspiracy in violation of 18 U.S.C. § 1951(a) between September and November 2004 and names all of the defendants with the exception of Mainello and Guadagno, Jr.

Based on the representations made by the prosecution, as well as the moving defense attorneys following extensive discovery, it appears that the Hobbs Act conspiracy charged in Count One involved a scheme "to commit a robbery in the home of a Long Beach business owner, whom the defendants [viz. McCabe, Guadagno, Jr., and Mainello] believed possessed approximately $500,000 in cash." (Gov't's Mem. Opp'n at 3; see also Randi L. Chavis, Esq., ("Chavis") (attorney for McCabe) Decl. at 3.) In Counts Two, Four, and Six, defendants McCabe and Guadagno are charged with being members of a conspiracy, the goal of which was to collect sums due from delinquent borrowers by extortionate means; in Count Three, the same defendants are charged with actually using such means for that purpose. Count Five, like Count One, charges a Hobbs Act conspiracy under 18 U.S.C. § 1951(a), with the object of the Count Five conspiracy being "to extort money from a . . . real estate development firm based [upon] the wrongful use of actual and threatened force, violence[,] and fear." (Gov't's Mem. Opp'n at 3; see also Chavis Decl. at 3 ("In Count Five, the government alleges that [the named defendants were] involved in an extortion scheme aimed at obtaining construction related contracts at a residential and commercial development project in Rockaway, New York").) In furtherance of that scheme, a project manager at "the construction site was assaulted on October 18, 2004" by one of the conspirators. (Chavis Decl. at 3.)

DISCUSSION

1. Applicable Law

Federal Rule of Criminal Procedure 8 provides:

(a) Joinder of Offenses. The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged - whether felonies or misdemeanors or both - are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.

(b) Joinder of Defendants. The indictment or information may charge 2 or more defendants 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. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count.

Rule 14(a) reads:

(a) Relief. If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the ...


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