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United States v. Pirk

United States District Court, W.D. New York

January 15, 2018

DAVID PIRK, ANDRE JENKINS, a/k/a Little Bear, TIMOTHY ENIX a/k/a Blaze, FILIP CARUSO a/k/a Filly, JASON WILLIAMS a/k/a Toop, GREGORY WILLSON a/k/a Flip, ROBERT OSBORNE, JR., STANLEY OLEJNICZAK, JACK WOOD a/k/a Jake a/k/a Snake, THOMAS SCANLON a/k/a Tom, GLEN STACHARCZYCK a/k/a Turbo, and SEAN MCINDOO a/k/a Professor, Defendants.


          ELIZABETH A. WOLFORD, States District Judge


         The above-captioned matter involves eight remaining defendants[1] (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.

         This 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.


         In 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.[2] (Dkt. 490).

         In 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).

         In July 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).

         Defendants moved or renewed their motions for severance, pursuant to Federal Rules of Criminal Procedure 8 and 14, as listed below:

• David Pirk:

Motion to Change Venue Motion to Sever Defendant and Counts Renewed Motion to Sever Renewed Motion to Change Venue

Dkt. 434 Dkt. 435 Dkt. 789 Dkt. 833

• Filip Caruso:

Motion to Sever Defendant

Dkt. 776

• Jack Wood:

Motion to Sever Defendant

Dkt. 777

• Gregory Willson:

Motion to Sever Defendant

Dkt. 782

• Stanley Olejniczak:

Motion to Sever Defendant Amended Motion to Sever Defendant

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

Dkt. 785

• Robert Osborne:

Motion to Sever Defendant, Joinder

Dkt. 787

• Timothy Enix:

Motion to Sever Defendant

Dkt. 790

• Andre Jenkins:

Motion to Change Venue Motion to Sever Defendant Motion for Joinder

Dkt. 522 Dkt. 792 Dkt. 836

         On 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)).

         On 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.[3] 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.


         I. Defendants' Arguments in Support of Severance

         Caruso, 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).

         To 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).

         Scanlon 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).

         McIndoo 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. (Id.).

         Pirk 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).

         Enix 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).

         Jenkins 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).

         II. The Government's Arguments

         In its 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).

         The 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).

         The 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).

         Finally, 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).

         III. Rules Governing Joinder and Severance

         Rule 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).").

         Pursuant 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.

         The 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).

         There 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)).

         Notwithstanding 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 competence.").

         IV. Application

         As stated on the record on October 24, 2017, the Government did not object to severing Caruso, Williams, [4] and Wood from the main trial. ...

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