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holding that evidence of a racketeering enterprise's organization and mode of operation, including its use of violence to further narcotics trafficking and intimidate rivals, was admissible against an individual defendant as acts in furtherance of a conspiracy
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10-CR-657 (SJ) (RML)
03-07-2013
UNITED STATES OF AMERICA v. LARON SPICER, et al. Defendants.
APPEARANCES UNITED STATES ATTORNEY Loretta E. Lynch United States Attorney By: Matthew S. Amatruda Zainab Ahmad Attorneys for Plaintiff LAW OFFICE OF JOYCE LONDON By: Joyce C. London Attorney for Defendant James Dowtin FEDERAL DEFENDERS OF NEW YORK, INC. By: Michael K. Schneider Attorney for Defendant Tyquan Rogers LAW OFFICES OF MARK S. DEMARCO By: Mark Steven DeMarco Attorney for Defendant Dwayne Monroe HURWITZ STAMPUR & ROTH By: William J. Stampur Attorney for Defendant James Williams
ORDER ADOPTING
REPORT AND
RECOMMENDATION
APPEARANCES
UNITED STATES ATTORNEY
Loretta E. Lynch
United States Attorney
By: Matthew S. Amatruda
Zainab Ahmad
Attorneys for Plaintiff
LAW OFFICE OF JOYCE LONDON
By: Joyce C. London
Attorney for Defendant James Dowtin
FEDERAL DEFENDERS OF NEW YORK, INC.
By: Michael K. Schneider
Attorney for Defendant Tyquan Rogers
LAW OFFICES OF MARK S. DEMARCO
By: Mark Steven DeMarco
Attorney for Defendant Dwayne Monroe
HURWITZ STAMPUR & ROTH
By: William J. Stampur
Attorney for Defendant James Williams
JOHNSON, Senior District Judge,
Defendants James Dowtin ("Dowtin"), Dwayne Monroe ("Monroe"), Tyquan Rogers ("Rogers") and Rashawn Sharp ("Sharp") (collectively, the "Defendants") separately moved for severance pursuant to Rule 14 of the Federal Rules of Civil Procedure (collectively, the "Severance Motion"). By order dated March 22, 2012, this Court referred the Severance Motion to Magistrate Judge Robert M. Levy for a Report and Recommendation (the "Report"). After holding a hearing on the Severance Motion, inter alia. Magistrate Judge Levy issued the Report on November 20, 2012. In the Report, Magistrate Judge Levy recommended that Dowtin's motion to sever be denied, and that severance be granted as to Monroe, Rogers and Sharp.
Objections to the Report were due within fourteen (14) days or by no later than December 4, 2012. The Report indicated that a failure to file objections within the specified time waives the right to review. Dowtin was the only party that filed a timely objection to the Report on December 3, 2012. The government filed its objection over a month beyond the deadline on January 16, 2013, and thus, the Court will only consider Dowtin's timely objection.
The Court has reviewed de novo the portions of the Report to which Dowtin objects. For the reasons stated below, the Report is adopted in its entirety.
BACKGROUND
Defendants and eight other individuals (the "Co-defendants") were indicted on August 24, 2010 for their alleged membership in a racketeering enterprise (the "Spicer Enterprise") that was engaged in narcotics trafficking and various acts of violence, including several violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968. Defendants moved for severance, arguing, inter alia, that the Co-defendants are charged with numerous violent crimes that do not involve the movants; the evidence against the Co-defendants is more voluminous and inflammatory than the evidence against the movants; there is great potential for "spillover prejudice" from evidence of violent acts committed by the Co-defendants; the complexity of an unsevered trial would preclude jurors from properly assessing the evidence against each defendant; and curative instructions would inadequately address the potential prejudice from a joint trial.
In his objection to Judge Levy's recommendation that he not be severed from the Co-defendants, Dowtin contends, inter alia, that he is identically situated to the defendants for whom severance has been recommended and the reasons underscored in the Report for severance of those defendants are equally as compelling for him, Moreover, Dowtin argues that severance is even more warranted in his case because he is the brother of the alleged leader of the charged enterprise, Laron Spicer ("Spicer"). Defendant argues that his relationship to Spicer and the resulting prejudice is even further compounded by the fact that Spicer is charged with violent crimes including, inter alia, one murder, five attempted murders, a robbery and an assault in aid of racketeering.
DISCUSSION
I. Standard of Review
A district court judge may designate a magistrate judge to hear and determine certain motions pending before the Court and to submit to the Court proposed findings of fact and a recommendation as to the disposition of the motion. See 28 U.S.C. § 636(b)(1). Within 14 days of service of the recommendation, any party may file written objections to the magistrate's report. See id. If either party objects to the magistrate judge's recommendations, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See id.; see also United States v. Tortora. 30 F.3d 334, 337 (2d Cir. 1994). A de novo determination entails an independent review of all objections and responses to the magistrate's findings and recommendations. See, e.g., Tortora, 30 F.3d at 337-38; cf. Bristol-Myers Squibb Co. v. McNeil-P.P.C, Inc., 973 F.2d 1033, 1045 (2d Cir. 1992).
The Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the report and recommendation to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, failure to file timely objections may waive the right to appeal this Court's Order. See 28 U.S.C. § 636(b)(1); Small v. Sec'y of Health & Human Servs.. 892 F.2d 15, 16 (2d Cir. 1989).
II. Motion for Severance
a. Legal Standard
Rule 8(b) of the Federal Rules of Criminal Procedure provides that an indictment or information may charge multiple defendants who allegedly "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 Supreme Court has recognized and reaffirmed "a preference in the federal system for joint trials of defendants who are indicted together" because they promote efficiency and prevent the injustice of inconsistent verdicts. Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.E.2d 317 (1993). Joint trials also "limit inconvenience to witnesses, avoid delays in bringing defendants to trial and permit the entire story to be presented to a single jury." United States v. Rucker, 32 F. Supp. 2d 545, 547 (E.D.N.Y. 1999).
Nevertheless, if a court finds that a joint trial would prejudice a defendant or the government, the court may sever the defendants' trial pursuant to Federal Rule of Criminal Procedure 14(a) ("Rule 14(a)"). On a defendant's Rule 14(a) motion to sever, the court must balance the efficiency of a joint trial against the possibility of prejudice to a defendant. See United States v. Fevrer, 333 F.3d 110, 114 (2d Cir. 2003); see also United States v. Shellef, 507 F.3d 82, 98 (2d Cir. 2007); United States v. Turoff, 853 F.2d 1037, 1044 (2d Cir. 1998), For this analysis, "[t]he risks of prejudice attendant in a joint trial are presumptively outweighed by the conservation of time, money and scarce judicial resources that joint trial permits." United States v. Jimenez, 824 F. Supp. 351, 366 (S.D.N.Y. 1993). Such a risk may be heightened where, for example, "many defendants are tried together in a complex case and they have markedly different degrees of culpability . . . ." Zafiro, 506 U.S. at 539, 113 S.Ct. 933.
The most common basis on which severance is sought is prejudicial spillover, i.e., "evidence admissible against only one defendant is prejudicial to all defendants." United States v. DiNome, 954 F.2d 839, 843 (2d Cir. 1992); see also United States v. Salameh, 152 F.3d 88, 115 (2d Cir. 1998) (" 'Prejudice' occurs in joint trials when proof inadmissible against a defendant becomes part of his trial solely due to the presence of co-defendants as to whom its admission is proper.").
The determination of whether such prejudice exists is highly fact-specific and must be evaluated on a case-by-case basis. Id. Moreover, the decision of whether to sever a trial is committed to the sound discretion of the district court. United States v. Wilson, 11 F.3d 346, 353 (2d Cir. 1993). Notably, a defendant seeking severance under Rule 14 bears an " 'extremely difficult burden' of proving . . . that the prejudice would be so great as to deprive him of his right to a fair trial." United States v. Bellomo, 954 F. Supp. 630, 649 (S.D.N.Y. 1997) (quoting United States v. Casamento, 887 F.2d 1141, 1149 (2d Cir. 1989)).
b. Application
The court finds that Dowtin has failed to meet his heavy burden of proving that severance is warranted. First, the court finds unconvincing the contention that the introduction of evidence not directly related to Dowtin would cause so much "spillover prejudice" as to warrant severance. Evidence adduced against one alleged co-conspirator is "neither spillover nor prejudicial" if it would be admissible at a separate trial against the movant as an act of a co-conspirator in furtherance of a conspiracy due to the nature of conspiratorial illegal activity. United States v. Rosa, 11 F.3d315, 341 (2d Cir. 1993); see also United States v. Bari, 750 F.2d 1169, 1178 (2d Cir. 1984) (affirming joint trial where co-conspirator acts not involving the defendant were admissible against "the least active but nevertheless a fully implicated conspirator"). Thus, evidence of the Spicer Enterprise's organization and mode of operation, including the use of violence to further narcotics trafficking and to intimidate rivals, would be admissible against Dowtin as acts in furtherance of a conspiracy. See United States v. Spinelli, 352 F.3d 48, 55-56 (2d Cir. 2003).
This is true even when the co-conspirator's acts are of greater severity. See Rosa, 11 F.3d at 341-42 (affirmed denial of severance for narcotics conspirators not charged with acts of violence and held that violence of co-conspirators was admissible as proof of the conspiracy's modus operandi); see also United States v. Minaya, 395 F. Supp. 2d 28, 40 (S.D.N.Y. 2005) (denying motion to sever defendants not charged with violence from those indicted for murder because the homicide would be admissible as an act in furtherance of the charged narcotics conspiracy). Consequently, the government's introduction of evidence pertaining to the robbery and murder committed by the Co-defendants could be admissible against Dowtin as acts in furtherance of the charged conspiracy. As such, the court does not find Dowtin's allegation of "spillover prejudice" regarding the nature of the evidence and charges against him as compared to the Co-defendants to be a compelling basis to sever.
Second, Dowtin argues that his familial relationship with the leader of the enterprise, Laron Spicer, who has been charged with various violent acts, including murder, would result in him suffering "spillover prejudice." The court finds this basis equally unconvincing. Dowtin fails to cite any legal precedent (and the court is unaware of any) which supports his assertion that just because they are brothers they are entitled to separate trials under Rule 14(a). Moreover, denying Dowtin's motion to sever does not obviate his ability to seek exclusion of any such evidence at trial pursuant to Rule 403 of the Federal Rules of Evidence. Accordingly, this basis to sever the trial is also rejected.
Dowtin's remaining arguments are without merit.
CONCLUSION
For the foregoing reasons, Judge Levy's Report is adopted in its entirety. Accordingly, Dowtin's motion for severance is DENIED and severance with respect to defendants Rogers, Sharp and Monroe is GRANTED. SO ORDERED. DATED: March 7, 2013
Brooklyn, New York
________________________
Sterling Johnson Jr, U.S.D.J.