The opinion of the court was delivered by: Denise Cote, District Judge
Defendant Cyril Smith ("Smith") was indicted on September 1, 2005, and is charged in a nine-count superseding indictment ("Indictment") filed on August 23, 2006. Trial is due to begin on May 14, 2007. Smith moves to sever the trial on Counts Eight and Nine under Rule 8(a), Fed. R. Crim. P., or in the alternative under Rule 14. For the following reasons, the motion is denied.
The first seven counts of the Indictment are drug crimes and crimes of violence from the period 1998 to 2002. Count One charges Smith with participating in a conspiracy from at least 1998 to 2002, to distribute 50 grams and more of crack, one kilogram and more of heroin, and five kilograms and more of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846. In furtherance of the conspiracy, the Indictment alleges that co-conspirators sold quantities of cocaine and heroin in the vicinity of Monterey Avenue in the Bronx, that Smith participated in armed robberies and burglaries of suspected drug dealers, and that Smith murdered rival narcotics trafficker Sanford Malone. Counts Two and Three also relate to Malone's murder. Count Two charges Smith with the February 14, 2000 murder of Malone while engaged in the Count One conspiracy, in violation of 21 U.S.C. § 848(e)(1)(A). Count Three charges Smith with using a firearm to murder Malone during a drug trafficking crime, in violation of 18 U.S.C. § 924(j).
Counts Four through Seven charge Smith with offenses stemming from two other murders in July 1998. Counts Four and Six charge the defendant with murdering Jamal Kitt and Terrence Celestine, respectively, during drug conspiracies to distribute cocaine and crack, in violation of 21 U.S.C. § 848(e)(1)(A). Counts Five and Seven charge Smith with using a firearm to kill Kitt and Celestine, respectively, in furtherance of a conspiracy to distribute cocaine and crack, in violation of 18 U.S.C. § 924(j). The Government explains that the drug conspiracies in these counts are separate from that charged in Count One.
The two counts which Smith seeks to sever from the May trial arise from events years later, specifically in August 2005. Count Eight charges Smith with participating in a conspiracy in August 2005 to distribute 50 grams and more of crack, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846. In furtherance of the conspiracy, the Indictment alleges that in or about August 2005, Smith supplied packages of crack to others, who in turn sold the crack to customers in the vicinity of 188th Street and Webster Avenue in the Bronx. Also, on August 30, Smith and a co-conspirator sold a $10 bag of crack to an undercover officer in the same vicinity. Count Nine charges Smith with the single sale of crack on August 30, 2005, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C).
Rule 8(a), Fed. R. Crim. P., permits joinder of multiple offenses against a single defendant where the charged offenses "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."*fn1 The policy behind Rule 8(a) is that considerations of economy and speed may outweigh possible unfairness to the defendant and justify joinder of charges at trial. See United States v. Amato, 15 F.3d 230, 237 (2d Cir. 1994).
In deciding the appropriateness of joinder, no one characteristic can be singled out as providing the necessary similarity, and "each case depends largely on its own facts." United States v. Blakney, 941 F.2d 114, 116 (2d Cir. 1991). Joinder is usually proper under Rule 8(a) "where the same evidence may be used to prove each count." Id.; see also Amato, 15 F.3d at 236. Thus in Blakney, the Second Circuit determined that a gun and drug charge had been properly joined where the evidence demonstrated that the defendant "was selling both commodities to the same customers; in addition, on at least one occasion he sought to pay for guns by giving [the buyer] cocaine." Blakney, 941 F.2d at 116. The evidence "was thus interconnected, and the interests of judicial efficiency were served by having the counts tried together." Id.
Nonetheless, Rule 8(a) does not require "too precise an identity between the character of the offenses." United States v. Werner, 620 F.2d 922, 926 (2d Cir. 1980). Crimes that are of a "similar" character but not of the "same" character may be joined. Id. In Werner, the Second Circuit found sufficient similarity between two cargo thefts that occurred two years apart and only one of which was violent in nature. Joinder was justified, since "both offenses arose out of [defendant's] scheme to use his position as an insider with [his employer] to obtain money or property carried by it." Id. at 927. In contrast, robberies of a bank and an appliance store that were committed in close geographical and temporal proximity were not properly joined since they "used distinctly different methods" and "targeted distinctly different victims." United States v. Tubol, 191 F.3d 88, 95 (2d Cir. 1999).
The nine charges are properly joined under Rule 8. The 1998-2002 counts and the 2005 counts are of a sufficiently similar character and constitute parts of a common scheme or plan. Both sets of counts involve Smith's participation in street-level distribution of retail quantities of crack in the Bronx. The Government expects the proof at trial to show that retail crack distribution was the major source of Smith's income during this entire timeframe and that Smith committed the three murders in the earlier counts primarily to obtain quantities of narcotics that he could sell at the retail level, sales which he continued to make in August 2005. These factors constitute sufficient similarity and commonality to meet the "same or similar character" and "common scheme or plan" requirements of Rule 8(a).
Smith emphasizes the time gap and the violence in the first set of counts to argue that joinder is improper. He cites Tubol, 191 F.3d 88, and United States v. Martinez, 92 Cr. 839 (SWK), 1993 WL 322768 (S.D.N.Y. Aug. 19, 1993), to support his severance claim. Tubol is distinguishable. In contrast to Tubol, which is described above, Smith's modus operandi and his victims in the two sets of counts are the same. Smith was engaged in street level sales of crack to victims in the Bronx in both periods covered by the Indictment's charges. In Martinez, the District Court severed a drug conspiracy from a firearm possession charge because there was no causal link or any other connection between the two. Martinez, 1993 WL 322768, at *9-10. The gun was seized four months after the drug conspiracy ended with the co-conspirators' arrests. Id. at *9. In Smith's case, however, even ...