Crim. No. 04-169 (01-03) (PAM/RLE).
July 19, 2004
MEMORANDUM AND ORDER
This matter is before the Court on Defendants' Objections to the Report and Recommendation of Magistrate Judge Raymond L. Erickson dated June 10, 2004, and Defendants' Appeals from the Order of Magistrate Judge Raymond L. Erickson dated June 10, 2004.
Defendants David Jorgensen, Kerry Baubie, and Raymond Wirtz are charged with conspiracy to defraud various commercial airlines, in violation of 18 U.S.C. § 371. All Defendants seek to Dismiss the Indictment on two grounds: (1) it is duplicitous; and (2) it is barred by the statute of limitations. Magistrate Judge Erickson denied these Motions and Defendants now ask the Court to reverse the Magistrate Judge.
As noted in Magistrate Judge Erickson's Report and Recommendation, the Court granted Defendant Jorgensen's Motion to join in certain motions of his co-defendants. Defendant Jorgensen joined in Defendant Baubie's Motion to Dismiss the Indictment. Defendant Wirtz filed a separate Motion to Dismiss the Indictment.
Magistrate Judge Erickson also ruled on numerous non-dispositive Motions. Defendants Baubie and Jorgensen maintain that Magistrate Judge Erickson erred in denying their Motion for Bill of Particulars and Motion to Sever. Further, although Magistrate Judge Erickson granted all three Defendants' Motions for Disclosure and ordered Rule 404(b) evidence to be disclosed, Defendants object to Magistrate Judge Erickson's requirement that such disclosures be made "no later than fourteen (14) days before the Trial date." (June 10, 2004, Order at 13.)
Defendant Jorgensen joined in Defendant Baubie's non-dispositive Motions, and likewise joined in Defendant Baubie's appeal from Magistrate Judge Erickson's Order on these Motions. Defendant Wirtz filed a separate appeal from Magistrate Judge Erickson's Order, relating solely to the disclosure of 404(b) evidence.
A. Standard of Review
The Court reviews the Magistrate Judge's recommendations on dispositive matters de novo. 28 U.S.C. § 636(b)(1)(B); D. Minn. L.R. 72.1(c)(2). The Court reviews the Magistrate Judge's determinations on non-dispositive matters under a clearly erroneous standard. See 28 U.S.C. § 636(b)(1)(A); D. Minn. L.R. 72.1(b)(2).
B. Motion to Dismiss the Indictment
Defendants contend that the Government has improperly charged three separate conspiracies as one conspiracy. The Indictment alleges that Defendants defrauded various airlines by (1) improperly using adhesive stickers to make unauthorized changes to their tickets; (2) improperly purchasing Saturday night stay fares; and (3) improperly upgrading to first-class. (See Indictment.) Defendants maintain that each of these allegations constitutes an independent conspiracy, and that charging the three separate conspiracies as one conspiracy is duplicitous. Magistrate Judge Erickson found that the Indictment charged a single conspiracy "to defraud the airlines." (RR at 10.) Magistrate Judge Erickson further found that the jury should ultimately determine whether the evidence at trial establishes more than a single conspiracy. (Id. at 11.)
"Duplicity is the joining of a single count of two or more distinct and separate offenses." United States v. Street, 66 F.3d 969, 974 (8th Cir. 1995). Duplicitous counts should be dismissed to prevent the jury from convicting a defendant without unanimously agreeing on a defendant's guilt as to the specific offense. See id. However, whether the proof establishes a single conspiracy or multiple conspiracies is a question of fact for the jury to determine. United States v. Morales, 113 F.3d 116, 118 (8th Cir. 1997). Here, the Indictment asserts a single conspiracy to defraud the airlines and is not on its face duplicitous.
Defendants further maintain that the Indictment is barred by the statute of limitations. However, this argument is premised on Defendants' theory that the Indictment is duplicitous. Because the Court agrees with Magistrate Judge Erickson that the Indictment is not duplicitous on its face, this argument fails. Thus, Defendants' Objections to the Report and Recommendation of Magistrate Judge Erickson are denied.
C. Defendants' Motion for Bill of Particulars
Defendants Baubie and Jorgensen contend that Magistrate Judge Erickson erred in denying their Motion for Bill of Particulars. According to Baubie and Jorgensen, nine different aspects of the Indictment require elaboration. However, the Government represented that all of this requested information would be provided through discovery. Moreover, the Magistrate Judge reviewed the Indictment and concluded that it was sufficient. As noted above, the Court reviews the decision only for clear error. Magistrate Judge Erickson's conclusion that a Bill of Particulars is not warranted in this case is not clearly erroneous.
D. Defendants' Motion for Severance and a Separate Trial
Defendants Baubie and Jorgensen further argue that severance of Defendants' trials is appropriate. Rule 8(b) of the Federal Rules of Criminal Procedure permits that an indictment "may charge two or more 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. The defendants may be charged in one or more counts together or separately." Even though joinder of Defendants may be proper, Rule 14 provides relief if specific prejudice is claimed to arise from a joint trial. See Fed.R.Crim.P. 14. Severance should be granted 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." Zafro v. United States, 506 U.S. 534, 539 (1993)
Defendants Baubie and Jorgensen maintain that the daunting nature of the evidence will prevent the jury from compartmentalizing the evidence as to each Defendant. They further contend that each Defendants' alleged involvement in the three transactions varies so much that it prejudices all of the Defendants. Finally, they contend that because each of their co-Defendants may provide exculpatory testimony as to their own individual conduct, severance is required.
The Court is unpersuaded. Bald assertions that the jury will be unable to separate the evidence or that the evidence will be so complex as to confuse a jury are insufficient to warrant severance. A mere allegation that exculpatory evidence exists is insufficient; Defendants Baubie and Jorgensen must each "present actual proof that a given codefendant has committed himself to testify, and that the testimony is exculpatory and material to the defense." United States v. Alexander, 736 F. Supp. 968, 1004 (D. Minn. 1990) (Rosenbaum, J.) (citing United States v. Garcia, 785 F.2d 214 (8th Cir. 1986)); United States v. Starr, 584 F.2d 235, 238 (8th Cir. 1978)). Moreover, the mere existence of such allegedly exculpatory evidence does not automatically warrant severance. See United States v. Foote, 920 F.2d 1395, 1399-1400 (8th Cir. 1990). Defendants Baubie and Jorgensen failed to submit evidence of severe prejudice. See United States v. Rodgers, 732 F.2d 625, 629 (8th Cir. 1984). The Court reviews the Magistrate Judge's decision for clear error, and concludes that Magistrate Judge Erickson's determination that severance was unwarranted is not clearly erroneous.
E. 404(b) Disclosures
Defendants Baubie, Wirtz and Jorgensen object to the Magistrate Judge's Order that requires the Government to disclose Rule 404(b) evidence no later than 14 days before trial. Defendants maintain that the Magistrate Judge should have ordered the Government to provide this evidence sooner. Defendants do not cite to any authority that supports the assertion that the Magistrate Judge is in error.
Moreover, the Magistrate Judge's Order presumes that counsel are officers of the Court and will act accordingly. This Court will make the same assumption. The Government's duty is to assure that Defendants receive a fair trial. Thus, the Court assumes that the Government will provide Defendants with 404(b) evidence as that evidence becomes available to the Government, but in any event no later than fourteen days before trial. Should the Court's assumption prove incorrect, Defendants may renew their Motion for disclosure of such evidence. The Magistrate Judge's Order on this point is likewise affirmed.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendants' Objections to the Report and Recommendation of Magistrate Judge Erickson dated June 10, 2004 (Clerk Doc. Nos. 51 and 54) are DENIED;
2. The Report and Recommendation dated June 10, 2004 (Clerk Doc No. 50) is ADOPTED;
3. Defendants' Appeals of the Order of Magistrate Judge Erickson dated June 10, 2004 (Clerk Doc. Nos. 51 and 56) are DENIED; and
4. The Order dated June 10, 2004 (Clerk Doc. No. 49) is AFFIRMED.