Opinion
Cause No. NA01-0004-CR-01-B/N.
July 12, 2001
John Dowd, Asst. U.S. Attorney, Indianapolis, IN., For Plaintiff.
Armand Judah, Louisville, KY., For Defendant.
ORDER FINDING PROPER JOINDER, DENYING SEVERANCE OR ELECTION, AND DENYING MOTIONS TO DISMISS THE INDICTMENT
On May 8, 2001, the grand jury returned a superseding indictment against Defendant Wendell Copeland. Counts I-IV of the indictment charge that Mr. Copeland knowingly and intentionally distributed a mixture containing a detectable amount of cocaine base on four separate occasions in February, March, and April of 1998 in violation of 21 U.S.C. § 841(a)(1). In count V, the government accuses Mr. Copeland of violating the same statutory provision by knowingly and intentionally possessing with intent to distribute a mixture containing detectable amounts of cocaine base on January 21, 2001. Count VI charges Mr. Copeland with a violation of 18 U.S.C. § 924(c)(1) for knowingly possessing a firearm in furtherance of a drug trafficking crime, also on January 21, 2001.
Because the Court finds that Mr. Copeland is not improperly prejudiced by the government's decision to wait until now to prosecute the crimes allegedly committed in 1998, we DENY Defendants' Motion for Relief from Misjoinder and for a Severance or Election ("Defendant's Motion for Severance"), and we DENY Defendant's Motion to Dismiss Indictment Based on Pre-Indictment Prosecutorial Delay ("Defendant's First Motion to Dismiss"). Because Mr. Copeland cannot show that the government is punishing him for exercising a right to which he is plainly entitled, Defendant's Motion to Dismiss Indictment Based on Prosecutorial Vindictiveness ("Defendant's Second Motion to Dismiss") must also beDENIED.
As noted in the government's response to Defendant's various pre-trial motions, all of these motions were filed long after fifteen days following the return of the Superseding Indictment had passed. Government's Response in Opposition to Defendant's Motion to Dismiss Indictment Based On Pre-Indictment Prosecutorial Delay and Defendant's Motion to Dismiss Indictment Based on Prosecutorial Vindictiveness and Government's Motion to Strike Both Motions as Untimely Filed ("Government's Second Response") at ¶ 2. The delay in filing these motions violated the Court's February 16, 2000 order on pretrial motions. In the interest of justice, the Court addresses the motions on their merits but reminds counsel that the motions could have been denied for untimeliness.
Misjoinder and Severance
Proper Joinder of Offenses under Rule 8Under Federal Rule of Criminal Procedure 8, Mr. Copeland moves for relief from misjoinder of Counts I-IV with Counts V and VI. Rule 8 permits joinder of offenses in a number of circumstances, including when all of the offenses "are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." Fed.R.Crim.P. 8(a). The first of these possibilities, where the offenses "are of the same or similar character," is the "broadest of the possible bases for joinder under Rule 8(a)." United States v. Alexander, 135 F.3d 470, 476 (7th Cir. 1998). The government rests its argument against Defendants' misjoinder motion on this wide basis, which makes Defendant's task difficult. Adding to Mr. Copeland's hurdle in constructing a winning argument is the Seventh Circuit's "strong policy preference in favor of the joinder of qualifying charges." Id.
For the purposes of joinder, offenses "are of the same or similar character" if they have any of a number of shared traits. Most clearly, "joinder is permitted if the counts refer to the same type of offenses occurring over a relatively short period of time, and the evidence as to each count overlaps." United States v. Coleman, 22 F.3d 126, 131 (7th Cir. 1994) (internal quotations omitted). As Defendant points out, if the above standard were the only criterion under which joinder could occur, the government's indictment likely would violate Rule 8(a). Defendants' Motion to Sever at 2. Almost three years, arguably not "a relatively short period of time," elapsed between the alleged offenses committed in 1998 and those crimes charged as taking place only a few months ago. In addition, Defendant was incarcerated by the Indiana Department of Corrections for most of the time between the 1998 events and the offenses in January of 2001. Mr. Copeland's incarceration makes it highly unlikely that the government's event-based evidence for the 1998 drug distribution charges and the 2001 drug and gun possession charges would overlap.
However, the Seventh Circuit uses alternative criteria for determining whether offenses "are of the same or similar character." In Coleman, 22 F.3d at 134, the Seventh Circuit articulated the basic inquiry broadly, stating that "[t]his language in Rule 8(a) is a rather clear directive to compare the offenses charged for categorical, not evidentiary, similarities." The court in Coleman likewise downplayed the significance of a lack of temporal similarity. Id. Since Coleman, the Seventh Circuit has applied this interest in like "categories" to situations much like the case before us. In United States v. Turner, 93 F.3d 276, 279 (7th Cir. 1996), the defendant was charged with conspiracy to possess methamphetamine with intent to distribute and with conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846 and with possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The conspiracy was alleged to have lasted from October 1991 to January 1992. Id. at 280. The possession charge arose from conduct alleged to have occurred on April 13, 1993-over a year after the end of the charged conspiracy. Id. In ruling that joinder was proper, the Seventh Circuit reasoned that "[t]he indictment alleges the violation of two closely-related statutory prohibitions, and each count involves the same controlled substance." Id. at 283-84.
The case before us is not distinguishable in Mr. Copeland's favor. Counts I-IV and Count V relate to the same controlled substance, namely "a mixture or substance containing a detectable amount of cocaine base, a Schedule II, Narcotic Controlled Substance." Superseding Indictment, Counts I-V. Furthermore, these counts allege violation of the same statutory provision, 21 U.S.C. § 841(a)(1). These offenses, quite simply, "are of like class, although not connected temporally or evidentially," and as such, their joinder does not violate Rule 8(a).Coleman, 22 F.3d at 133 (upholding joinder of four counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) even though offenses allegedly occurred sporadically over two-year period and were witnessed by separate sets of witnesses). That Counts I-IV allege distribution while Count V alleges only possession with intent to distribute will not aid Defendant's argument. See Turner, 93 F.3d at 283-84 (upholding joinder of count of conspiracy to distribute with count of possession with intent to distribute on grounds that statutory prohibitions were closely related and both counts related to same controlled substance even though events giving rise to both counts took place more than year apart).
It also does not help Defendant to point out that Count VI is not a drug possession or distribution charge under 21 U.S.C. § 841(a) but a firearm possession charge under 18 U.S.C. § 924(c)(1). Count VI is a specific intent crime dependent upon the occurrence of the Count V charge since an element of the crime charged in Count VI is that the possession of the firearm be in furtherance of a drug trafficking crime. 18 U.S.C. § 924(c)(1). As quoted above, Rule 8(a) permits joinder of offenses when the offenses are based on "two or more acts or transactions connected together or constituting parts of a common scheme or plan." Fed.R.Crim.P. 8(a). In United States v. Windom, 19 F.3d 1190, 1196-97 (7th Cir. 1994) (citation omitted), the Seventh Circuit noted that "[t]wo crimes are `connected together' if the proof of one crime constitutes a substantial portion of the proof of the other." Because proof of a drug trafficking crime is substantial proof of a violation of 18 U.S.C. § 924(c)(1), Counts V and VI are properly joined. Id. at 1197 (district court properly joined count under 18 U.S.C. § 924(c)(1) to counts under 21 U.S.C. § 841(a)(1)).
Joinder not Prejudicial under Rule 14
In a related issue, pursuant to Federal Rule of Criminal Procedure 14, Defendant also asks the Court to sever trial on the counts based on acts allegedly occurring in 1998 (Counts I-IV) from trial on the counts based on acts allegedly occurring in 2001 (Counts V and VI). Alternatively, Mr. Copeland moves the Court to require the United States to elect to proceed to trial either on Counts I-IV or Counts V and VI. Severance is controlled by Rule 14 after, as here, the requirements of Rule 8 have been satisfied. United States v. Lane, 474 U.S. 438, 447 (1986). Rule 14 establishes that "[i]f it appears that a defendant or the government is prejudiced by a joinder of offenses . . ., the court may order an election or separate trials of counts . . . or provide whatever other relief justice requires." Fed.R.Crim.P. 14. Severance is necessary "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." Zafiro v. United States, 506 U.S. 534, 541 (1993). Consequently, meeting the standard set by Rule 14 is a difficult task for defendants. See also United States v. Pulido, 69 F.3d 192, 207-8 (7th Cir. 1995) (upholding district court's denial of severance because defendant could not show that denial of severance made "a fair adjudication of the charges against him impossible."). However, "where joinder is based upon the `similar character' of the indictment's charges, the risk of potential prejudice to the defendant from a joint trial is enhanced, and the district court must therefore be especially vigilant in monitoring the proceedings for developing unfairness."Alexander, 135 F.3d at 477.
Our analysis of Rule 14 will be discussed in terms of severance rather than election. Rule 14 grants the trial court discretion as to relief if prejudice is found. Since we do not find the risk of prejudice to warrant severance, the more drastic remedy of election need not be considered.
Prejudice in a joint trial can arise from a number of sources. United States v. Myrick, 1997 WL 564673, at *9 (N.D.Ill. Sept. 3, 1997) (listing sources for prejudice in joint trials). Defendants most often argue that prejudice arises from juror confusion due to "spillover" evidence on the multiple counts and from improper "criminal disposition" inferences.See, e.g., United States v. Freland, 141 F.3d 1223, 1227 (7th Cir. 1998). Mr. Copeland's concerns also center on these possible sources of prejudice. Specifically, Defendant argues that the similarity between the two sets of counts and the similarity of the 2001 counts with the cocaine distribution and possession convictions against Mr. Copeland in state court in 1998 would improperly confuse and influence the jury. Defendant's Motion to Sever at 13.
The Court finds that joinder here does not create an unnecessary risk of juror confusion. We begin our evaluation with "the dual presumptions that a jury will capably sort through the evidence and will follow limiting instructions from the court to consider each count separately."Turner, 96 F.3d at 284 (citation omitted); Freland, 141 F.3d at 1227. Counts I-IV involve historical events completely separate from those charged in Counts V-VI. In such situations, the Seventh Circuit is reluctant to find that a jury would confuse the incidents. Id. ("The proof at trial involved discrete historical events, and the evidence as to each count was anything but excessive or confusing.") (internal quotations omitted). In addition, the crimes charged and the contested elements for each set of counts (distribution or possession with intent to distribute of cocaine-base mixtures) are likely to be quite similar so that "the jury [will] not have to grapple with the application of widely variant legal principles." Coleman, 22 F.3d at 135. The limited range of legal principles for the jury to consider lessens the possibility of juror confusion.
Mr. Copeland's argument concerning improper "propensity" inferences is stronger than his argument concerning jury confusion. Nevertheless, this argument is ultimately unconvincing. Defendant contends that the "Court must sever the first four counts from the fifth and sixth counts to ensure that the U.S. does not use evidence of events in 1998 to prove events in 2001 when the U.S.'s only basis for doing so is to show Defendant's propensity to commit crimes charged in violation of FRE 404(b)." Defendant's Motion to Sever at 11. In his brief, Mr. Copeland is referring to both the 1998 crimes for which he served time in state prison and also the 1998 crimes for which the federal government now prosecutes him. This concern does not create sufficient prejudice to necessitate severance.
First, we note that evidence of his 1998 convictions in state court clearly would be admissible in a trial only on Counts I-IV. While not admissible "to prove the character of a person in order to show action in conformity therewith," such evidence of prior bad acts would be admissible "as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed.R.Evid. 404(b). The 1998 crimes for which Mr. Copeland is now indicted occurred on various dates interspersed with the dates for crimes for which he was convicted in state court in 1998. Both sets of 1998 crimes related to the same act (distribution) of similar substances (cocaine or cocaine-based mixtures). Because of the close connection in time and the very similar character between the charged crimes and the convicted crimes, the government intends to use the evidence of the 1998 convictions to show motive, intent, and knowledge for the 1998 crimes charged in this indictment. Government's Response, ¶ 3. In the circumstances, such use is clearly within the bounds of the rules of evidence. See United States v. Cooper, 942 F.2d 1200, 1205 (7th Cir. 1991) ("Evidence of a prior drug transaction is admissible under 404(b) to show a defendant's intent to take part in a conspiracy, his opportunity to acquire and distribute cocaine, and his knowledge of the distribution network.").
Mr. Copeland argues for severance on the ground that his "guilty plea to drug charges in 1998 cannot establish his motive to commit drug crimes in 2001, especially when he was incarcerated for most of the three years between the guilty plea and the later charges." Defendant's Motion to Sever at 12. As such, according to Defendant, the only possible reason the government could have for indicting the 1998 and 2001 charges together is to use the 1998 convictions to impermissibly establish Defendant's "criminal character." The argument continues that because the 1998 convictions are admissible as to the 1998 acts, but not as to the 2001 acts, the 1998 acts and the 2001 acts in the new indictment cannot be tried together. This reasoning fails to convince the Court because the first premise is fallacious. Mr. Copeland does not elaborate on a reason why the fact of incarceration and the passage of three years would break the link between the events of 1998 and those of 2001 in terms of motive. Furthermore, Defendant's argument does not address the government's planned use of the conviction evidence for the purposes of demonstrating intent and knowledge. Because the evidence of the 1998 state convictions is admissible at to both the newly-charged 1998 counts and also the 2001 counts, the fact of the 1998 convictions does not create prejudice sufficient to merit trying the two sets of counts separately.
In addition, because the range of Mr. Copeland's arguments is far from crystal clear, the Court feels compelled to point out one relevant precedent. Two sets of counts, here the 1998 charges and the 2001 charges, can be tried together without running an impermissible risk of creating an improper impression of criminal propensity in the minds of the jurors. In Windom, 19 F.3d at 1198, the Seventh Circuit rejected precisely this argument when it ruled that evidence of earlier crimes would be admissible in a trial on later crimes under Rule 404(b) and that, therefore, "prejudice requiring severance is not shown if evidence on the severed counts would be admissible in the trial of the remaining counts." For these reasons, severance under Rule 14 is not warranted in this case.
Pre-Indictment Prosecutorial Delay
In his Motion to Dismiss Indictment Based on Pre-Indictment Prosecutorial Delay, Defendant argues that waiting until May 8, 2001 to issue an indictment for acts allegedly occurring in February, March, and April of 1998 violated the due process rights granted to him by the Fifth Amendment of the United States Constitution. The primary line of defense against prosecutorial delay lies in statutes of limitations. United States v. Canoy, 38 F.3d 893, 901 (7th Cir. 1994). "The Due Process Clause plays a limited role in protecting a defendant from undue prosecutorial delay." United States v. Smith, 80 F.3d 1188, 1191 (7th Cir. 1996). The small part played by due process claims is highlighted by the elevated bar the Seventh Circuit sets for making out such a claim.See United States v. Sabath, 990 F. Supp. 1007, 1013 (N.D.Ill. 1998) ("The Seventh Circuit has yet to review a case . . . that meets the acknowledged dual standard [for succeeding in a due process claim based on prosecutorial delay].").
First, a defendant must show that the delay caused him "actual and substantial prejudice." United States v. Sowa, 34 F.3d 447, 450 (7th Cir. 1994). Once this hurdle is cleared (and it rarely is), then "the government must come forward and provide its reasons for the delay," which are balanced against the prejudice suffered by defendant to determine if there has been a due process violation. Id. at 451. The reason so few defendants succeed on these due process claims is because the "obligation to show actual and substantial prejudice is an exacting one." Canoy, 38 F.3d at 902. "The allegations of prejudice must be specific, concrete and supported by the evidence-vague, speculative or conclusory allegations will not suffice." Windom, 19 F.3d at 1195. In addition, the prejudice suffered must be "substantial." Canoy, 38 F.3d at 902. "[A] defendant is not deprived of due process if he is only somewhat prejudiced by the lapse of time." Id. (internal quotation omitted).
Here, the main thrust of Defendant's claim of prejudice is the same as the argument used in support of his motion for severance. Mr. Copeland once again contends that he will suffer prejudice from the introduction of evidence about the 1998 crimes into deliberations about the 2001 crimes. He argues that the jury will be convinced that he "acted in conformity with his criminal character" and that the jury will not be able to connect the evidence from the various dates of alleged criminal activity with the proper count and only with the proper count. Defendant's First Motion to Dismiss Indictment at 6-7. For the same reasons that we found that any prejudice arising from this situation was insufficient to warrant severance, we also find that Defendant will not suffer actual and substantial prejudice from the delay in prosecution such that his due process rights were violated.
An example from a typical case illustrates why the circumstances here do not rise to the level of actual and substantial prejudice. In United States v. Fuzer, 18 F.3d 517, 520 (7th Cir. 1994), the defendant argued that he was prejudiced by the delay in federal indictment because the delay made it impossible to serve his state and federal sentences concurrently. The Seventh Circuit ruled that the defendant did not suffer actual and substantial prejudice because there is no right to serve federal and state sentences concurrently. Id. As such, any prejudice to defendant was merely speculative. Id. The allegations of prejudice in Mr. Copeland's case barely rise even to the level of conjecture. As explained in the discussion on severance, evidence about the 1998 crimes is admissible under Rule 404(b) in a trial on the 2001 crimes, and the jury is presumed capable of following instructions to consider counts separately. It is contrary to the rules of evidence and to the presumption of jury competence to argue that if Mr. Copeland had been tried in 1998 for all of the crimes allegedly occurring in 1998, then a jury hearing the charges concerning the 2001 crimes would reach a different decision. Because we find that there is no actual or substantial prejudice here, we do not balance whatever reason the government may have for the delay in prosecution against prejudice to Defendant. Defendant's Motion to Dismiss the Indictment Based on Pre-Indictment Prosecutorial Delay is DENIED.
Absence of Prosecutorial Vindictiveness
Finally, Defendant argues that the superseding indictment against him arose out of prosecutorial vindictiveness amounting to a violation of his due process rights under the Fifth Amendment. Mr. Copeland asks the Court to dismiss the indictment on this basis. "A prosecution is vindictive and a violation of due process if undertaken to punish a person because he has done what the law plainly allows him to do." United States v. Bullis, 77 F.3d 1553, 1558 (7th Cir. 1996) (internal quotations omitted). Defendant claims that the government issued the superseding indictment as punishment for Defendant's refusal to accept the plea offer on the original indictment which included only charges for the events allegedly occurring in 2001. Defendant's Second Motion to Dismiss Indictment at 2-3.
Because "[w]e presume that a prosecutor's decision to seek increased charges in a superseding indictment is valid," Mr. Copeland is not entitled to a presumption of vindictiveness. Bullis, 77 F.3d at 1559. Instead, Mr. Copeland must come forward with objective evidence of "actual vindictiveness." Id. This task he cannot do. Defendant exercised his procedural right to demand a jury trial on the charges against him, which imposes on the government the standard burden of proving its case. Such a burden does not rise to the level of "objective evidence that the prosecutorial conduct at issue was motivated by some form of prosecutorial animus, such as a personal stake in the outcome of the case or an attempt to seek self-vindication." Id. (citing United States v. Goodwin, 457 U.S. 368, 384 (1982)). "[T]he fact that a defendant exercises a procedural right and, as a result, imposes a modest burden upon a prosecutor is not sufficient to show actual vindictiveness." Id. In addition, even if Mr. Copeland had been entitled to a presumption of vindictiveness or had brought forth objective evidence of vindictiveness, the government would have the opportunity to "present sufficient evidence that the superseding indictment was motivated by permissible factors." Id. Even though not required to explain its decision to bring the superseding indictment, the government can show that permissible factors motivated its decision. The government states that it first learned of the unfiled state charges relating to 1998 incidents in March of 2001 while preparing for the trial, which was originally scheduled that month. Government's Second Response, ¶ 5. The superseding indictment is dated May 8, 2001; whereas, the plea negotiations on the original indictment failed in January of 2001. The discovery of additional information is an acceptable reason to increase the charges against a defendant. Bullis, 77 F.3d at 1559-60.
Conclusion
For the reasons set forth above, the Court DENIES Defendant's Motion for Relief from Misjoinder and for a Severance or Election. The Court also DENIES Defendant's Motion to Dismiss Indictment Based on Pre-Indictment Prosecutorial Delay and Defendant's Motion to Dismiss Indictment Based on Prosecutorial Vindictiveness.