Opinion
S1 01 Cr. 874 (JFK)
April 8, 2002
James B. Comey, United States Attorney for the Southern District of New York, Marcus A. Asner, Assistant United States Attorney, for the United States of America.
Charles A. Ross, Jennifer A. Liang, Brafman Ross, P.C., New York, New York, for Defendant.
OPINION AND ORDER
Background
Defendant, David Aguiar, moves to sever his trial from the trial of his co-defendants, claiming that a joint trial "will become virtually impossible to manage since Mr. Aguiar's defense is substantially antagonistic to the defenses of his co-defendants." (Defense Brief p. 3). David Aguiar has been indicted with five others in an eight-count indictment for his alleged role in two robberies and an attempted kidnaping. The victims of one of the robberies were Aguiar's godfather and the godfather's family; the victim of both the kidnaping attempt and the second robbery was Aguiar's great-uncle.
Analysis
The basis for Aguiar's severance argument is that he and his co-defendants will blame each other for the crimes charged in the indictment. Aguiar, claiming "he had absolutely no involvement in any of the charged crimes," (Defense Brief p. 3), fails to explain why "it will be imperative for (him) to not only distance himself from the crimes alleged . . . but to help prove up some of those criminal acts against his co-defendants." (Defense Brief p. 3). On the same page of his brief, he goes on:
"In response to Mr. Aguiar's defense theory, counsel anticipates that Mr. Aguiar's co-defendants will attempt to incriminate Mr. Aguiar and portray him as the mastermind behind a scheme that did not involve them.
At a joint trial, neither Mr. Aguiar nor his co-defendants would be able to fully explore every possible area of defense available without undermining the other's right to a fair trial. Accordingly, a severance is warranted."
None of these arguments holds water. Aguiar does not explain why he has to prove his co-defendants' guilt when he denies his implication in the crimes charged and the suggestion that the co-defendants will try to implicate him as "the mastermind" is speculative at best and not determinative in any event.
Writing for the Court in Zafiro v. United States, 506 U.S. 534, 537 (1993), Justice O'Connor stated:
"Rule 8(b) states that `[t]wo 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.' There is a preference in the federal system for joint trials of defendants who are indicted together. Joint trials `play a vital role in the criminal justice system.' Richardson v. Marsh, 481 U.S. 200, 209, 107 S.Ct. 1702, 1708, 95 L.Ed.2d 176 (1987). They promote efficiency and `serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.' Id., at 210, 107 S.Ct., at 1708. For these reasons, we repeatedly have approved of joint trials."
This strong preference for joint trials was reemphasized in Judge Sand's decision in United States v. Bin Laden, 109 F. Supp.2d 211, 214 (S.D.N.Y. 2000). There is no need for "scandal" in the Aguiar case.
Mr. Aguiar's willingness "to stipulate to the commission of the charged crimes by (his) co-defendants" is equally unavailing. See Old Chief v. United States, 519 U.S. 172, 186, 187 (1997) and Parr v. United States, 255 F.2d 86 (5th Cir. 1958), cert. denied, 358 U.S. 824 (1958).
The motion for a severance is denied.
SO ORDERED.