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United States v. Hawit

United States District Court, E.D. New York

May 22, 2017

UNITED STATES OF AMERICA,
v.
ALFREDO HAWIT, et al., Defendants. Counts Charged Crimes Continental Org'n Regional Org'n Nat'l Org'n Tournament Charged Defs.

          MEMORANDUM & ORDER DENYING SEVERANCE

          Pamela K. Chen United States District Judge.

         Defendants Manuel Burga, Jose Maria Marin, Juan Angel Napout, Costas Takkas, and Hector Trujillo (collectively, “Defendants”) are charged in the Superseding Indictment (“SI”, Dkt. 102) in this matter with involvement in conspiratorial racketeering, wire fraud, and money laundering allegedly undertaken to enrich themselves by virtue of their various positions in the Fédération Internationale de Football Association (“FIFA”), its continental, regional, and national affiliates, and certain sports marketing companies. Trial is scheduled to begin on November 6, 2017.

         Each of the five Defendants has moved to sever his trial from the other Defendants' trials.[1]Defendant Takkas is also seeking to sever his trial on Count 1 of the Superseding Indictment, which charges him and the other Defendants with racketeering conspiracy, from his trial on the wire fraud and money laundering conspiracy counts in which he is charged.[2] For the reasons set forth below, the Court denies all Defendants' motions to sever their trials and also denies Defendant Takkas's motion to sever his trial on the racketeering conspiracy count from his trial on the other counts in which he is charged.

         BACKGROUND

         I. Charges Against Defendants

         On November 25, 2015, the grand jury returned a 92-count superseding indictment charging twenty-seven defendants, including the five Defendants, with racketeering conspiracy pursuant to the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d), and wire fraud and money laundering conspiracies, among other crimes. These charges are based on the defendants' alleged participation in an overarching RICO conspiracy, as well as in various distinct bribery and kick-back schemes, carried out across the globe over the course of at least twenty-four years, all relating to the operations and governance of FIFA and its constituent confederations and associations.

         Defendants are charged as follows in the Superseding Indictment:[3]

Counts
Charged Crimes
Continental Org'n
Regional Org'n
Nat'l Org'n
Tournament
Charged Defs.
1
RICO Conspiracy
ALL
ALL
ALL
ALL
ALL
9 & 10
Wire Fraud & Money Laundering Conspiracy
CONMEBOL
Copa Libertadores Scheme #2
Napout Marin Burga
11 & 12
Wire Fraud & Money Laundering Conspiracy
CONMEBOL[4]
CBF
Copa do Brasil
Marin
42 - 48
Wire Fraud & Money Laundering Conspiracy
CONCACAF
UNCAF
UNCAF Region World Cup Qualifiers Schemes (FENAFUTG)
Trujillo
68 - 76
Wire Fraud & Money Laundering Conspiracy
CONCACAF
CFU
CFU World Cup Qualifiers Scheme #2
Takkas
83 & 84
Wire Fraud & Money Laundering Conspiracy
CONMEBOL/ CONCACAF
Copa América Centenario
Napout Marin Burga

         Each Defendant occupied one or more leadership roles within FIFA and/or its constituent confederations and associations:

1. Defendant Burga-(a) between about 2002 and 2014: president of the Peruvian soccer federation, which is a national member association of FIFA and CONMEBOL; and (b) at various times[5]: member of the FIFA development committee, continuing through the date of the indictment (id. ¶ 42);
2. Defendant Marin-(a) between about March 2012 and April 2015: president of the CBF, which is a national member association of FIFA and CONMEBOL, see supra n.3; (b) at various times: member of multiple FIFA standing committees, including the organizing committees for the Olympic football tournaments, the World Cup and the Confederations Cup; and (c) special adviser to the organizing committee for the Confederations Cup (id. ¶ 50);
3. Defendant Napout-(a) between May 29, 2015 and the date of the indictment (November 25, 2015): member of FIFA's executive committee and a FIFA vice president; (b) at various times: member of multiple FIFA standing committees, including the disciplinary committee and the organizing committee for the World Cup; (c) between about August 2014 and the date of the indictment: CONMEBOL president; (d) before August 2014: CONMEBOL vice president; and (e) between 2003 and 2013: vice president and later president of the Paraguayan soccer federation, a national member association of FIFA and CONMEBOL (SI ¶ 41);
4. Defendant Takkas-(a) at various times: general secretary of the Cayman Island Football Association (“CIFA”), a national member association of FIFA and CONCACAF; and (b) attaché to CONCACAF president Jeffrey Webb, when Webb assumed that role (id. ¶ 37)[6]; and
5. Defendant Trujillo-general secretary to Federación Nacional de Futbol de Guatemala (“FENAFUTG”), the Guatemalan soccer federation, which is a national member association of FIFA, CONCACAF, and UNCAF (id. ¶¶ 33, 38)[7].

         II. Procedural History

         Pursuant to the Court's scheduling order of January 17, 2017, Defendants Marin, Takkas, and Trujillo filed their severance motions on January 31, 2017. (Dkts. 529-534.)[8] Defendant Burga, who was only arraigned in this matter on December 2, 2016, did not file his own severance motion, but adopted the severance motion of Defendant Marin. (Dkt. 541.) The government filed its omnibus response to all five Defendants' motions on March 3, 2017. (Dkt. 546 (“Govt. Br.”).) Defendants filed replies on March 17, 2017. The Court held oral argument on the motions on April 6, 2017, at which, as previously noted, the Court orally denied Napout's speedy trial motion, for the reasons stated on the record. (Tr. 83-86.)

         DISCUSSION

         I. Legal Standard

         Federal Rule of Criminal Procedure 8(b) provides for joinder of 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.” Under this rule, “a non-frivolous conspiracy charge” is generally sufficient to support joinder. United States v. Nerlinger, 862 F.2d 967, 973 (2d Cir. 1988). If joinder is proper under Rule 8(b), a defendant may move for severance pursuant to Federal Rule of Criminal Procedure 14(a), under which a court may sever a defendant's trial “[i]f the joinder of offenses or defendants . . . appears to prejudice a defendant.” Fed. R. Crim. P. 14(a); United States v. Spinelli, 352 F.3d 48, 54 (2d Cir. 2003). Given the “preference in the federal system for joint trials of defendants who are indicted together, ” a severance should be granted only where “there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro v. United States, 506 U.S. 534, 537-39 (1993); see also United States v. Ventura, 724 F.2d 305, 312 (2d Cir. 1983) (“We have held repeatedly that, absent a showing of substantial prejudice, defendants who are jointly indicted should be jointly tried.”); United States v. Page, 657 F.3d 126, 129 (2d Cir. 2011) (“[T]he defendant [must] demonstrate[] that the failure to sever [would] cause[] him substantial prejudice in the form of a miscarriage of justice.”). In addition, even where a defendant shows a risk of prejudice, “less drastic ...


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