United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETH A. WOLFORD, States District Judge
above-captioned matter involves eight remaining
defendants (collectively, "Defendants")
named in a 46-count Second Superseding Indictment (Dkt. 33)
("Indictment") returned on March 16, 2016, alleging
various crimes, including a conspiracy in violation of the
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.
§§ 1961 et seq. ("RICO"), in
connection with the operation of the Kingsmen Motorcycle Club
("KMC"). Among the overt acts of the alleged
conspiracy are the execution-style murders of two KMC
members-Paul Maue ("Maue") and Daniel "D
J" Szymanski ("Szymanski")-that occurred
outside the KMC North Tonawanda Chapter clubhouse during the
early morning hours of September 6, 2014. (See Dkt.
33, Count 1, Overt Acts ¶¶ 41-66). Defendant Andre
Jenkins was convicted for the murders in state court,
following a jury trial.
Decision and Order addresses the motions for severance and
for change of venue filed by defendants David Pirk
("Pirk") (Dkt. 434; Dkt. 435; Dkt. 789; Dkt. 833);
Filip Caruso ("Caruso") (Dkt. 776); Jack Wood
("Wood") (Dkt. 777); Stanley Olejniczak
("Olejniczak") (Dkt. 781; Dkt. 784); Gregory
Willson ("Willson") (Dkt. 782); Sean McIndoo
("McIndoo") (Dkt. 783); Glen Stacharczyck
("Stacharczyck") (Dkt. 785); Robert Osborne, Jr.
("Osborne") (Dkt. 787); Timothy Enix
("Enix") (Dkt. 790); Thomas Scanlon
("Scanlon") (Dkt. 791); and Andre Jenkins
("Jenkins") (Dkt. 522; Dkt. 792; Dkt. 836). For the
reasons set forth below, the Court severs Caruso, Wood,
Stacharczyck, and Jason Williams ("Williams") from
the trial commencing on January 16, 2018, and determines that
that trial will take place in Buffalo, New York.
December 2016, four defendants-Scanlon, Osborne, Olejniczak,
and Williams-moved for severance. (Dkt. 384; Dkt. 387; Dkt.
394; Dkt. 400). In a Decision and Order dated February 9,
2017, the Court denied those motions without prejudice,
reasoning that severance was premature at that
time. (Dkt. 490).
January 2017, Pirk moved to sever his trial from his
co-defendants and to change the location of his trial from
Buffalo, New York, to Rochester, New York. (See Dkt.
434 at 21-27 (motion to change venue); Dkt. 435 (Severance
Motion)). Jenkins' pretrial omnibus motion, filed in
March 2017, requested a change of venue to another district,
or, alternatively, from Buffalo, New York, to Rochester, New
York. (Dkt. 522 at ¶¶ 140-46).
2017, the Court issued a Decision and Order on certain
aspects of Defendants' pretrial omnibus motions. (Dkt.
688). However, in that Decision and Order, the Court did not
address Pirk's motions for severance and to change venue
(Dkt. 435; Dkt. 435) or Jenkins' motion for change of
venue (Dkt. 522), choosing instead to resolve those motions
closer to the time of trial. (Dkt. 688 at 2. n.4). In August
2017, the Court issued a Pretrial Order, which set a deadline
of September 15, 2017, for Defendants to file or renew
previously filed severance motions. (Dkt. 739 at 2).
moved or renewed their motions for severance, pursuant to
Federal Rules of Criminal Procedure 8 and 14, as listed
• David Pirk:
Motion to Change Venue Motion to Sever Defendant and
Counts Renewed Motion to Sever Renewed Motion to
Dkt. 434 Dkt. 435 Dkt. 789 Dkt. 833
• Filip Caruso:
Motion to Sever Defendant
• Jack Wood:
Motion to Sever Defendant
• Gregory Willson:
Motion to Sever Defendant
• Stanley Olejniczak:
Motion to Sever Defendant Amended Motion to Sever
Dkt. 781 Dkt. 784
• Thomas Scanlon:
Motion to Join in Request for Separate Trial Motion
to Sever Defendant
Dkt. 783 Dkt. 791
• Glen Stacharczyck:
Motion to Sever Defendant
• Robert Osborne:
Motion to Sever Defendant, Joinder
• Timothy Enix:
Motion to Sever Defendant
• Andre Jenkins:
Motion to Change Venue Motion to Sever Defendant
Motion for Joinder
Dkt. 522 Dkt. 792 Dkt. 836
September 29, 2017, the Government filed a consolidated
response to Defendants' motions for severance. (Dkt.
803). Some defendants filed replies in further support of
their motions. (Dkt. 808 (Pirk); Dkt. 809 (Scanlon); Dkt. 810
(Stacharczyck); Dkt. 811 (Enix); Dkt. 812 (Jenkins)).
October 24, 2017, the Court held oral argument on the motions
for severance and for change of venue cataloged above. (Dkt.
844). After the oral argument concluded, the Court orally
announced its decision to sever Caruso, Wood, Stacharczyck,
and Williams from the trial commencing on January 16, 2018,
to defer ruling on Jenkins' motion for severance, and to
deny all other motions for severance. The Court also announced its
decision to hold the trial commencing on that date in
Buffalo, New York. On October 26, 2017, the Court issued a
Text Order summarizing its oral decision and indicating that
a forthcoming Decision and Order would memorialize the
Court's reasoning in further detail. (Dkt 840). This
Decision and Order sets forth that reasoning.
Defendants' Arguments in Support of Severance
Wood, Willson, Olejniczak, Stacharczyck, and Osborne each
argues, in the main, that he should not be tried with
co-defendants who are charged with committing or ordering
acts of violence, and particularly, those charged with the
overt acts of the murders. (See Dkt. 776 at
¶¶ 32-39 (Caruso); Dkt. 777 at ¶ 9 (Wood);
Dkt. 782 at ¶ 28 (Willson); Dkt. 784 at ¶¶ 8,
12, 14, 19-21 (Olejniczak); Dkt. 785 at ¶ 4
(Stacharczyck); Dkt. 787 at ¶ 5 (Osborne)). These
defendants also argue that the admission into evidence of
Jenkins' prior state court conviction for the murders
would prejudice their rights to a fair trial. (See
Dkt. 776 at ¶ 28; Dkt. 782 at ¶ 27; Dkt. 784 at
¶ 10; see also Dkt. 783).
those ends, Caruso and Willson both ask to be severed from
Pirk, Enix, and Jenkins, arguing that these defendants are
the only ones charged in the murders. (Dkt. 776 at ¶ 32
("[O]nly these defendants [Pirk, Enix, and Jenkins] are
charged in the overt acts of murder which would substantially
prejudice the right to a fair trial by Caruso who is not
charged in those acts."); Dkt. 782 at ¶ 28
("The prejudice stemming from the introduction of
evidence against Pirk, Enix, and Jenkins-those charged in the
murder-would substantially impede the jury's ability to
make a reliable judgment."))- Olejniczak asks not to be
tried with Pirk and Jenkins, arguing that, in contrast to
those co-defendants, he is not named in the overt acts of
violence contained in the introduction to the RICO conspiracy
count. (Dkt. 784 at ¶ 8, 12, 14, 19-21). Stacharczyck
argues that the risk of prejudicial spillover would be too
great if he were to be required to stand trial with certain
co-defendants (Jenkins, Caruso, Enix, McIndoo, Olejniczak,
Pirk, and Willson) who are accused of crimes and acts of
violence, including murder. (Dkt. 785 at ¶¶ 4-7).
Osborne argues that his alleged participation in Count 1 is
"minimal, " as the Indictment attributes only five
overt acts to him. (Dkt. 787 at ¶ 5). He argues that, as
a "peripheral figure, " he should be severed from
his co-defendants, or alternatively, that the Court should
adopt the "groupings" suggested by Scanlon.
(Id. at ¶¶ 8-9).
proposes three trial groups as follows: Group A, consisting
of Pirk, Willson, Olejniczak, McIndoo, Caruso, and Enix;
Group B, consisting of Williams, Osborne, Wood, Scanlon, and
Stacharczyck; and Group C, consisting of Jenkins. (Dkt. 791
at 8). According to Scanlon, Group A consists of those
accused of ordering or carrying out violent acts, whereas
Group B consists of those accused mainly of obstruction of
justice and various possession offenses related to narcotics
trafficking. (Id.). Finally, he proposes isolating
Jenkins to Group C in order to ensure that Jenkins' state
court murder conviction does not unduly prejudice the
defendants in Group A, as well as to allow time for
Jenkins' state and federal appeals to be resolved.
(Id. at 9). In support of his proposal, Scanlon
argues that a trial of 12 defendants would be unmanageable
and in excess of the benchmarks described in United
States v. Casamento, 887 F.3d 1141, 1141-42 (2d Cir.
1989). Id. at 10-12. He disagrees with the notion
that the overarching conspiracy count warrants a single
trial, pointing out that the Indictment contains several
counts that are irrelevant to the RICO conspiracy and charge
only certain defendants, and that not all technically
relevant evidence is admissible, as it may be cumulative or
unduly prejudicial. (Id. at 12-13). Like his
co-defendants, Scanlon also argues that the admission of
Jenkins' certificate of conviction would be extremely
prejudicial. (Id. at 15-18). According to Scanlon,
separating defendants who are charged with serious violence
from those who are not would address the foregoing concerns.
(Id. at 19-23).
argues that "there needs to be at least two separate
trials, and that actually Mr. Jenkins should be tried
separately from all the others." (Dkt. 783). McIndoo
disagrees with Scanlon's proposal that McIndoo belonged
in the first trial of defendants accused of ordering or
carrying out acts of violence, arguing that the violence in
which he was allegedly involved was overstated.
argues that he should be tried separately from Caruso because
Caruso and Pirk have each claimed that the other either
committed or caused the murders of Maue and Szymanski, and
each claims that the other intended to kill or injure the
other. (Dkt. 789 at 3). Pirk also argues that he should not
have a joint trial with Caruso because "the government
has specifically accused [Caruso of] engineering an
assaultive confrontation with Mr. Pirk on August 3, 2014 as
an overt act of the RICO conspiracy." (Id. at
4). Pirk further argues that a trial with Caruso would
violate the principles set forth in Bruton v. United
States, 391 U.S. 123 (1968). (Id. at 5). Pirk
maintains that he should be tried separately from Jenkins
because the Government's use of Jenkins' state court
murder conviction will prejudice Pirk. (Id. at 6-9).
Like Scanlon, Pirk argues that the Court should not conduct a
single trial in light of the number of defendants.
(Id. at 9-13).
requests that the Court sever the defendants into two or more
separate trial groups, as follows: Group 1, consisting of
Enix, Williams, Osborne, Wood, Scanlon, and Stacharczyck;
Group 2, consisting of Willson, Olejniczak, McIndoo, and
Caruso; and Group 3, consisting of Jenkins and Pirk. (Dkt.
790 at ¶ 7). According to Enix, this proposal would
avoid Enix being tried with co-defendants accused of engaging
in or ordering violence. (Id.). Enix maintains that
some co-defendants erroneously read the Indictment to include
Enix in the overt acts concerning the murders, but he
contends that he is not alleged to have engaged in or ordered
violence, including the murders. (Dkt. 790-1 at 3 & n.l).
Like Pirk, Enix argues that Jenkins' murder convictions
are inadmissible against Enix, and that Caruso should be
tried separately from Enix and Pirk because of
Bruton concerns. (Id. at 7-10).
argues that, under Bruton, the Court should sever
his trial from certain co-defendants who purportedly made
statements implicating him in the charged offenses. (Dkt. 792
at ¶ 5). Alternatively, he asks that the Court bar
admission into evidence of any post-arrest statements, made
by non-testifying co-conspirators, that may implicate him.
(Id.). He identifies statements by Pirk, Enix,
Caruso, Williams, Osborne, Wood, Scanlon, Stacharczyck, and
McIndoo as implicating him and running afoul of Bruton.
(Id. at ¶¶ 9-12).
The Government's Arguments
consolidated response, the Government argues that severance
is not necessary because of the nature of the charged RICO
conspiracy, a crime of violence with predicate racketeering
activities such as murders, kidnapping, robbery, assaults,
drug offenses, obstruction of justice, witness tampering, and
sales of untaxed cigarettes. (Dkt. 33, Count 1 at ¶ 28).
The Government argues that, because the Indictment charges
all Defendants with the RICO conspiracy, the notion that some
defendants are more culpable than others is without merit;
moreover, in its view, no defendant is a minor player in the
conspiracy. (Dkt. 803 at 1-2).
Government's response also includes some concessions. It
consents to the severance of Caruso and Williams but
maintains that the "main trial"-to commence before
any trial of Caruso and Williams-should include the remaining
ten defendants. (Id. at 5-7). The Government also
indicates that, if the Court "prefer[red] two more
evenly balanced groups for trial, " the Government would
consent to Wood being severed from the main trial.
(Id. at 37). The Government also states that it
would forgo introducing Jenkins' state court conviction
during its case-in-chief in order to protect against
spillover prejudice and allow Jenkins to be tried jointly
with his co-defendants. (Id. at 11).
Government further argues that certain statements cited by
Defendants do not implicate Bruton, namely, the
interview between Enix, Pirk, and the FBI on December 11,
2014. (Dkt. 803 at 16-25). The Government maintains that
"all the evidence against Pirk and Jenkins is admissible
against Enix, and vice-versa, " and as a result,
"there is no spillover prejudice, and no reasonable view
of the evidence, that should separate defendant Enix from
defendants Jenkins and Pirk at trial." (Id. at
28). The Government disagrees with Jenkins that there are any
valid Briiton concerns arising out of statements by
Pirk, Enix, Caruso, Williams, Wood, Osborne, Scanlon,
Stacharczyck, and McIndoo. (Id. at 28-31).
the Government argues that the number of defendants and
length of trial do not require a severance, and that its
proposed main trial complies with the benchmarks in
Casamento. (Id. at 38-42).
Rules Governing Joinder and Severance
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." Fed. R. Crim. P. 8(b)
("The defendants may be charged in one or more counts
together or separately. All defendants need not be charged in
each count."). The Indictment plainly alleges a common
scheme and conspiracy involving KMC, with all defendants
named in the RICO conspiracy count, among others.
(See Dkt. 33). Thus, Defendants are properly joined
pursuant to Fed. R. Crim. P. 8(b). See United States v.
Nerlinger, 862 F.2d 967, 973 (2d Cir. 1988) (It is an
"established rule . . . that a non-frivolous conspiracy
charge is sufficient to support joinder of defendants under
Fed. R. Crim. P. 8(b).").
to Rule 14, "[i]f 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
defendants' trials, or provide any other relief that
justice requires." Fed. R. Crim. P. 14(a). The decision
to sever a trial pursuant to Rule 14 is "confided to the
sound discretion of the trial court." United States
v. Feyrer, 333 F.3d 110, 114 (2d Cir. 2003). A trial
court's decision concerning severance is considered
"virtually unreviewable, " and the denial of such a
motion "will not be reversed unless appellants establish
that the trial court abused its discretion." United
States v. Cardascia, 951 F.2d 474, 482 (2d Cir. 1991).
In order to successfully challenge the denial of a request
for severance, a defendant "must establish prejudice so
great as to deny him a fair trial." Id.
party requesting severance must demonstrate substantial
prejudice: "When defendants properly have been joined
under Rule 8(b), a district court should grant a severance
under Rule 14 only if 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." United States v.
Astra Motor Cars, 352 F.Supp.2d 367, 369-70 (E.D.N.Y.
2005) (quoting Zaflro v. United States, 506 U.S.
534, 539 (1993)); see also Cardascia, 951 F.2d at
482 (in order to successfully challenge the denial of a
request for severance, a defendant "must establish
prejudice so great as to deny him a fair trial");
United States v. Friedman, 854 F.2d 535, 563 (2d
Cir. 1988) ("[T]he defendant must show that he or she
suffered prejudice so substantial as to amount to a
'miscarriage of justice.'"). "[Differing
levels of culpability and proof are inevitable in any
multi-defendant trial and, standing alone, are insufficient
grounds for separate trials." United States v. Chang
An-Lo, 851 F.2d 547, 557 (2d Cir. 1988) (citation
omitted). "That the defendant would have had a better
chance of acquittal at a separate trial does not constitute
substantial prejudice." United States v.
Carson, 702 F.2d 351, 366 (2d Cir. 1983).
is a powerful presumption in favor of joint trials of
defendants indicted together based upon the underlying
policies of efficiency, avoiding inconsistent verdicts,
providing a "more accurate assessment of relative
culpability, " avoiding victims and witnesses having to
testify repeatedly, and avoiding the random favoring of
"the last-tried defendants who have the advantage of
knowing the prosecutor's case beforehand."
Richardson v. Marsh, 481 U.S. 200, 210, 219 n.7
(1987); see also Cardascia, 951 F.2d at 482
("The deference given by an appellate court to a trial
court's severance decision reflects the policy favoring
joinder of trials, especially when the underlying crime
involves a common plan or scheme and defendants have been
jointly indicted."). The Second Circuit has instructed
that "[considerations of efficiency and consistency
militate in favor of trying jointly defendants who were
indicted together, " and "[j]oint trials are often
particularly appropriate in circumstances where the
defendants are charged with participating in the same
criminal conspiracy. . . ." United States v.
Spinelli, 352 F.3d 48, 55 (2d Cir. 2003) (citations
omitted); see also United States v. Van Sichem, No.
SS 89 CR. 813 (KMW), 1990 WL 41746, at *1 (S.D.N.Y. Apr. 2,
1990) ("There is a strong presumption in favor of joint
trials for jointly indicted defendants, particularly where,
as here, the 'crimes charged involve a common scheme or
plan.'" (quoting United States v. Girard,
601 F.2d 69, 72 (2d Cir. 1979)). Indeed, "[j]oint trials
serve the interests of the government, the accused, and the
public by eliminating the additional expense and repetition
associated with successive prosecutions." Van
Sichem, 1990 WL 41746, at *1 (citing United States
v. McGrath, 558 F.2d 1102, 1106 (2d Cir. 1977)).
Moreover, it is well settled that a "RICO count itself,
'virtually by definition, ' constitutes 'a
"series of acts or transactions" sufficiently
inter-related to permit a joint trial of all
defendants."' United States v. Rastelli,
653 F.Supp. 1034, 1041 (E.D.N.Y. 1986) (quoting United
States v. Bagaric, 706 F.2d 42, 69 (2d Cir. 1983)).
the presumption in favor of joint trials, the Second Circuit
has instructed that, in cases involving lengthy trials of
more than four months and more than ten defendants, a
district judge should abide by certain "benchmarks"
in exercising her discretion to sever the trial. See
United States v. Casamento, 887 F.2d 1141, 1151-52 (2d
Cir. 1989); see also United States v. DiNome, 954
F.2d 839, 842 (2d Cir. 1992) ("There is no support in
caselaw or in logic for the proposition that a lengthy trial,
a large number and variety of charges, and numerous
defendants violate due process without a showing that the
issues were actually beyond the jury's
stated on the record on October 24, 2017, the Government did
not object to severing Caruso, Williams,  and Wood from the
main trial. ...