Opinion
Criminal No. 2005-76.
February 1, 2007
Delia L. Smith, AUSA, St. Thomas, U.S.V.I., For the Plaintiff. Robert L. King, Esq., St. Croix, U.S.V.I., For the defendant Gelean Mark, Stephen A. Brusch, Esq., St. Thomas, U.S.V.I., For the defendant Vernon Fagan, Bernard VanSluytman, Esq., St. Thomas, U.S.V.I., For the defendant Allen Dinzey, Karin A. Bentz, Esq., St. Thomas, U.S.V.I., For the defendant Dave Blyden, Douglas C. Beach, Esq., St. Thomas, U.S.V.I., For the defendant Keith Francois, Judith L. Bourne, Esq., St. Thomas, U.S.V.I., For the defendant Alexci Emmanuel, Leonard B. Francis, Esq., St. Thomas, U.S.V.I., For the defendant Royd Thompson, Claudette Ferron, Esq., St. Thomas, U.S.V.I., For the defendant Andrew Williams, George H. Hodge, Jr., Esq., St. Thomas, U.S.V.I., For the defendant Tyrone Alexander Prince, Clive C. Rivers, Esq., St. Thomas, U.S.V.I., For the defendant Leon Boodoo.
ORDER
Before the Court is the motion of the defendant, Alexci Emmanuel ("Emmanuel") to sever Count Nineteen of the Second Superseding Indictment (the "Indictment") from the trial of the remaining Counts in the Indictment.
Counts One, Eighteen, and Nineteen of the Indictment involve Emmanuel. Count One charges Emmanuel and all of his co-defendants with conspiracy to possess with intent to distribute cocaine, crack, and marijuana. The conspiracy allegedly occurred between November, 2004, and November, 2005. Count Eighteen charges Emmanuel and co-defendants Gelean Mark, Vernon Fagan, and Allen Dinzey with conspiracy to import controlled substances into the United States. The conspiracy in Count Eighteen was based on the same factual allegations, and occurred during the same time frame as Count One. Count Nineteen alleges that Emmanuel, who had previously been convicted of felony Grand Larceny, unlawfully possessed firearm ammunition on October 5, 2005. Emmanuel contends that the joinder of Count Nineteen was improper because his alleged possession of ammunition was a crime separate and apart from the narcotics charges.
Federal Rule of Criminal Procedure 8(b) ("Rule 8(b)") provides that multiple defendants may be joined in a single criminal action 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. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count.
Fed.R.Crim.P. 8(b) (2002).
Though each defendant need not be charged with every offense in the indictment, all of the offenses must be part of the same series of acts or transactions in order for joinder to be permissible under Rule 8(b). See United States v. Irizarry, 341 F.3d 273, 287 (explaining that Rule 8(b) permits joinder of offenses only if they are part of the same act or transaction). To be considered part of the same series of acts or transactions, there must be some factual connection between the separate crimes charged in a multi-defendant case. See United States v. Davis, 397 F.3d 173, 182 (3d Cir. 2005) (finding that weapons and drug charges involved the same act or transaction where guns and drugs were recovered at the same time from the same car); United States v. McGill, 964 F.2d 222, 241 (3d Cir. 1992) (finding that tax evasion and bribery charges were part of the same act or transaction where the defendant used bribery proceeds to fund accounts used for tax evasion).
In determining whether separate offenses joined in a multi-defendant case share a sufficient factual connection, it is generally inappropriate to look beyond the allegations in the indictment. United States v. Eufrasio, 935 F.2d 553, 567 (3d Cir. 1991). But in limited circumstances, "[w]here representations made in pretrial documents other than the indictment clarify factual connections between the counts, reference to those documents is permitted." McGill, 964 F.2d at 424. The appropriateness of joinder is not dependant on evidence subsequently discovered during trial. Eufrasio, 935 F.2d at 567.
The Indictment in this case charges ten defendants in nineteen criminal counts, all of which relate to the narcotics conspiracies except one. Count Nineteen charges Emmanuel alone with being a felon in possession of ammunition. The government has not alleged that ammunition or firearms were in any way part of the object of the conspiracies, or the manner or means in which the conspiracies were committed. There are no allegations that ammunition or firearms were involved in any of the acts in furtherance of the conspiracies. Nor does the Indictment allege that Emmanuel participated in any overt act or substantive offense related to the conspiracies.
The Indictment does allege that Emmanuel possessed the ammunition on October 5, 2005, while the conspiracies occurred from November, 2004, through November, 2005. However, the Indictment states that the last of the acts or transactions underlying the conspiracies occurred on June 8, 2005, months before Emmanuel possessed the ammunition. Without more, Emmanuel's possession of ammunition on one day that fell within the year-long period of the drug conspiracies does not suggest that these crimes were related. See United States v. Hubbard, 61 F.3d 1261, 1270-71 (7th Cir. 1995) ("The unlawful possession of a firearm is, of course, an offense wholly distinct from the distribution of narcotics, established on proof of elements unique to that offense.").
Since the government has not alleged any connection between the ammunition and the drugs, the Court cannot conclude that Emmanuel possessed the ammunition as part of the same series of acts or transactions involved in the drug conspiracies. See United States v. Terry, 911 F.2d 272, 276 (9th Cir. 1990) (finding improper joinder where drugs were found in the defendant's car and a gun was found in his home thirteen days later, because no connection was alleged between the drugs and the gun); see also United States v. Chavis, 296 F.3d 450, 457-66 (6th Cir. 2002) (finding improper joinder of gun and drug crimes committed two years apart, despite the allegation that the drugs were exchanged for the sale of firearms); Hubbard, 61 F.3d at 1270-71 (finding that the presence of a gun in a compartment where drugs had been stored created an insufficient connection between otherwise unrelated charges). Joinder of Count Nineteen with the other Counts in the Indictment is therefore improper. See United States v. Gorecki, 813 F.2d 40, 42 (3d Cir. 1987) (recognizing that joinder of weapons and narcotics charges may be improper where they are not sufficiently connected temporally or logically).
Finally, the government argues that Emmanuel cannot achieve severance of Count Nineteen because he has failed to show that he is prejudiced by the joinder of Count Nineteen. "Rule 8(b), however, requires the granting of a motion for severance unless its standards are met, even in the absence of prejudice." United States v. Lane 474 U.S. 438, 449 (1986). Accordingly, because joinder of the ammunition charge with the drug-related charges is improper, it is hereby
The government confuses the standard for severance based on improper joinder with the standard for severance where joinder is proper but results in prejudice to the defendant. See Fed.R.Crim.P. 8 (providing the standard for proper joinder); Fed.R.Crim.P. 14 (permitting severance of properly joined offenses or defendants where justice requires separate trials).
ORDERED that Emmanuel's motion for severance is GRANTED; it is further
ORDERED that Count Nineteen will be severed from Counts One through Eighteen of the Indictment; and it is further
ORDERED that Emanuel's trial on Count Nineteen shall be separate from the trial of Counts One through Eighteen of the Indictment in this matter.