UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
July 20, 2011
UNITED STATES OF AMERICA
MOHAMMAD YOUNIS, DEFENDANT.
The opinion of the court was delivered by: John F. Keenan, United States District Judge:
Memorandum Opinion and Order
Before the Court is Defendant Mohammad Younis' ("Younis" or "Defendant") motion to sever two overt acts alleged in connection with the charge of conspiracy to operate an illegal money transmitting business. For the reasons that follow, the motion is denied.
In a two-count Indictment dated September 15, 2010, Younis is charged with conspiracy to operate an unlicensed money transmitting business, in violation of 18 U.S.C. § 371, and operating and aiding and abetting the operation of an unlicensed money transmitting business, in violation of 18 U.S.C. § 1960, 2. The conspiracy count alleges two overt acts -- hawala transactions whereby Younis and a co-conspirator in Pakistan facilitated the transfer of money to two customers in the United States. First, on April 10, 2010, Younis allegedly effectuated the transfer of thousands of dollars to Faisal Shahzad, the so-called "Times Square bomber," at a meeting in Long Island.
(Indictment ¶ 3(a)-(b)). Second, on the same day as the Shahzad transaction, Younis allegedly met with another individual, identified as "Customer-1," in Long Island and again delivered to that individual thousands of dollars. (Id. ¶ 3(c)). Defendant now moves pursuant to Rules 8 and 14 of the Federal Rules of Criminal Procedure to sever and try separately the two overt acts charged in Count One of the Indictment.
Rule 8 permits joinder of offenses that 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." Fed.
R. Cr. P. 8(a). Where such joinder prejudices the defendant, the court
may, in its discretion, "order separate trials of counts." Fed. R. Cr.
P. 14(a). Plainly, neither Rule 8 nor Rule 14 provides for the
severance of overt acts charged in furtherance of a single count of an
indictment. Indeed, the Court has unearthed no legal authority
whatsoever in support of Defendant's extraordinary request that he, in
effect, be tried for the same conspiracy twice. While the motion could
be denied on this ground alone, the Court notes that even if Rule 8
did apply, the so-called "joinder" of overt acts here is proper. Each
of the overt acts concerns a hawala transaction Defendant allegedly
committed with the same co-conspirator, on the same day, in the same
geographical area, in connection with the same
unlicensed money remitting business. In an attempt to prove the
divergence of the overt acts, Defendant proffered phone records to
show that Faisal Shahzad and "Customer-1" did not call each other
during the first two weeks of April 2010. Since the two recipients
referenced in the Indictment purportedly have no direct ties to each
other, Defendant claims that he will need to present two different
defenses to the conspiracy charge. The lack of interaction between two
customers of a money transmitting business is simply irrelevant to the
question of whether Defendant and his co-conspirator in Pakistan --
the alleged operators -- facilitated the transfer of money to each
person in New York. Thus, there is no basis for Defendant's baffling
contention that the two overt acts are so dissimilar as to have been
Moreover, severance of the overt acts is unwarranted. Defendant argues that it would be prejudicial to present two hawala transactions in one trial where one of the transactions involved Faisal Shahzad. Under Rule 14(a), a defendant seeking severance must demonstrate "not simply some prejudice but substantial prejudice" as a result of the joinder. United States v. Sampson, 385 F.3d 183, 190 (2d Cir. 2004); see United States v. Amato, 15 F.3d 230, 237 (2d Cir. 1994) ("Given the balance struck by Rule 8, which 'authorizes some prejudice' against the defendant, a defendant who seeks separate trials
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