IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
: Cr. No. (9x-351-02)(CKK)
:
v. : :
:
xxxxxxxxxxxxxxx, :
:
:
Defendant. :
MOTION TO SEVER DEFENDANTS AND COUNTS
Defendant xxxxx, through counsel, respectfully moves this court to sever his trial from that of co-defendant xxxxxx, and to sever the count of the indictment in which he is charged from all other counts in the indictment, and as grounds, shows the court:
1. On September 10, 1997, Mr. xxxxxxxxx was arraigned on a nine-count indictment charging co-defendant xxxxxxx and him with various offenses. Mr. xxxx is charged in each count in the indictment. Mr. xxxxxxxxx is charged only in Count Seven. That count alleges that Mr. xxxxxxxxx, Mr. Stokes and others conspired to defraud the District of Columbia, in violation of 22 D. C. Code § 105(a). According to the indictment, the goal of the conspiracy was that Mr. xxxxxxxxx, his business partner, referred to in the indictment as Taxi Owner B, and Mr. xxxxx would enrich themselves by various means. Mr. xxxxxxxxx is alleged to have furthered the goals of the conspiracy by accepting money from purchasers of taxicab licenses, some portion of which was paid to xxxx to issue the licenses, and some portion of which was retained by xxxxxxxxx and his partner. Mr. xxxxxxxxx is not alleged to have committed any overt act in furtherance of the conspiracy.
2. Counts One through Six of the indictment charge that Mr. Stokes accepted gratuities from an individual referred to as Taxi Owner A, in return for certain services in connection with his position as the Chief of the Office of Taxicabs of the District of Columbia. The indictment does not allege any connection between Mr. xxxxxxxxx and Taxi Owner A.
3. Counts Eight and Nine allege that Taxi Owner B paid money to co-defendant Stokes on two separate occasions to enter false information into the computer system maintained by the Office of Taxicabs. Mr. xxxxxxxxx is not alleged to have had any role in these payments.
Argument
1. Misjoinder
Rule 8(b) of the Federal Rules of Criminal Procedure provides that:
Two or more defendants may be charged in the same
indictment or information 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. Such
defendants may be charged in one or more counts
together or separately and all of the defendants
need not be charged in each count.
Rule 8(b) is the provision governing joinder when more than one defendant is charged. United States v. Nicely, 922 F.2d 850, 853 (D.C. Cir. 1991). In multi-defendant cases, Rule 8(a) provision for joinder of offenses of the "same or similar character" is eliminated. Id. at 853.
In the instant case, the conspiracy with which Mr. xxxxxxxxx is charged is not properly joined with the offenses charged in counts One through Six of the Indictment. Those offenses involve alleged payments of gratuities to co-defendant Stokes by Taxi Owner A, with whom Mr. xxxxxxxxx has no affiliation. Mr. xxxxxxxxx is not alleged to have been involved in those payments in any way. Those offenses are not part of the conspiracy with which Mr. xxxxxxxxx is charged. Rule 8(b) "may not be read to embrace similar or even identical offenses, unless those offenses are related. . . . [T]here must be a logical relationship between the acts or transactions within the series." United States v. Nicely, 922 F.2d at 853. Joinder of defendants under Rule 8(b) requires "some common activity involving all of the defendants which embraces all the charged offenses even though every defendant need not have participated in or be charged with each offense. . . . [t]o be part of `the same series of acts,' the offenses charged must be part of one overall scheme about which all joined defendants knew and in which they all participated." United States v. Sazenski, 833 F.2d 741, 745 (8th Cir. 1987) (citations omitted). The indictment does not allege that Mr. xxxxxxxxx knew of the activities set out in Counts One through Six or that the acts in those counts had any relationship to the conspiracy or to the acts set forth in Counts Eight and Nine.
Likewise, with regard to the offenses set forth in Counts Eight and Nine, Mr. xxxxxxxxx is not named as a participant, the offenses are not connected to the conduct in Counts One through Six, and the offenses do not appear to be substantive offenses of the conspiracy alleged in Count Seven (the indictment refers to numerous payments of funds to Stokes for licenses but only two incidents of payment to alter information in the computer; apparently the conduct charged in Counts Eight and Nine is unrelated to the purchase of illegal licenses). These offenses are therefore improperly joined with Count Seven and with Counts One through Six.
2. Severance of Counts
Even if the offenses charged in Counts One through Six and Counts Eight and Nine were properly joined with the conspiracy charged in Count Seven, these counts should still be severed for trial because of the prejudice which Mr. xxxxxxxxx would face if the counts were tried together. Even though the government would introduce no evidence linking Mr. xxxxxxxxx to the offenses in Counts One through Six, the jury could cumulate this evidence and evidence against Mr. xxxxxxxxx on Count Seven to find Mr. xxxxxxxxx guilty of the conspiracy. The conduct charged in Counts One through Six and Counts Eight and Nine is sufficiently similar to the acts which allegedly occurred in furtherance of the conspiracy that the jury may well confuse the evidence on the various counts. These multiple counts may also engender hostility in the jury and cause them to convict on the conspiracy count when they might not do so if Mr. xxxxxxxxx was tried on that count alone. All of these reasons support the severance of Counts One through Six and Counts Eight and Nine from Count Seven. Drew v. United States, 331 F.2d 85, 88 (1964).
3. Severance of Defendants
Mr. xxxxxxxxx is entitled to be tried separately from Mr. xxx on Count Seven, because the weight of the evidence against him is de minimis compared to the weight of the evidence against co-defendant Stokes. According to the indictment, the only evidence of Mr. xxxxxxxxx's participation in the conspiracy is that he funnelled money to Mr. Stokes on behalf of persons seeking taxicab licenses and retained a portion of the money for himself. By contrast, there is evidence that Mr. Stokes accepted gratuities for performing various functions of his office as Chief of the Office of Taxicabs, that he sold taxicab licenses and registrations, and that he altered computer records to benefit phony licensees. The prospect that the jury will be confused by the testimony about the various offenses with which Mr. Stokes is charged, making it difficult to compartmentalize that evidence and keep it separate from evidence against Mr. xxxxxxxxx, is a very real one.
If it becomes apparent that the evidence against one defendant is far more damaging than against another, raising the spectre of guilt by association, severance is necessary. United States v. Mardian, 546 F.2d 973, 979-81 (D.C. Cir. 1976); United States v. Sampol, 636 F.2d 621, 642-51 (D.C. Cir. 1980).
For these reasons, and any that may appear at a hearing on this Motion, defendant xxxxxxxxx respectfully moves the court to sever his trial from that of co-defendant xxxxxxx, to sever the counts in the indictment so that he is tried on Count Seven alone, and for any other appropriate relief.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
_________________________
Reita Pendry
Assistant Federal Defender
625 Indiana Avenue, N.W. #550
Washington, D. C. 20004
202/208-7500