Opinion
S1 01 Cr. 984 (JFK)
April 19, 2002
JAMES B. COMEY, United States Attorney for the Southern District of New York, Joshua Levine, Lauren Goldberg, Assistant United States Attorneys, New York, New York, For the United States of America.
Mitchell A. Golub, Golub Golub, LLP, New York, New York, For Defendant Victor Estrella.
Joseph A. Grob, Esq., Moskowitz Brook, LLP, New York, New York, For Defendant Diego Felix.
OPINION and ORDER
Background
On June 21, 2001, these defendants and one Feliz were arrested and charged with participating in a narcotics conspiracy. A one-count indictment was filed on October 18, 2001, charging the three defendants with conspiring to distribute, and possess with intent to distribute, a controlled substance, in violation of Title 21, United States Code, Section 846. On December 11, 2001, the Grand Jury returned a two-count Superseding Indictment. Count One charged the defendants, Rafael Feliz, Victor Estrella and Diego Felix, with narcotics conspiracy. Count Two charged defendant Felix, alone, with illegally reentering the United States after having been deported, in violation of Title 8, United States Code, Section 1326. On December 18, 2001, Mr. Feliz pleaded guilty to a Superseding Information leaving Messrs. Felix and Estrella as co-defendants. On April 16, 2002, Estrella failed to appear for a scheduled conference. His bail was forfeited and a bench warrant was issued for his arrest. As of this writing, he is still unapprehended.
Felix moves for an order severing the two counts of the indictment under Federal Rule of Criminal Procedure 8(a), 8(b) and 14. Defendant Estrella seeks (I) severance from his co-defendant; and (2) disclosure of similar act evidence intended to be introduced pursuant to Rule 404(b). I will decide both defendants' motions even though Estrella is a fugitive.
Discussion
The only published decisions in this Circuit that have addressed the issue presented here — whether an illegal reentry count is properly joined with a count charging criminal activity occurring after the alleged illegal reentry are United States v. Brown, 744 F. Supp. 558 (S.D.N.Y. 1990), and United States v. Espinal-Mejia, 852 F. Supp. 3 (N.D.N.Y. 1994). Both cases held that joinder of such counts is proper under Rule 8(b). Brown, 744 F. Supp p. 563; Espinal-Mejia, 852 F. Supp. p. 4-5. Brown is directly on point.
In Brown, both defendants were charged with various narcotics offenses and Brown was also charged with illegally reentering the United States after having been deported. The Court rejected Brown's claim that the illegal reentry count was not sufficiently related to the narcotics charges under Rule 8(b). The Court concluded that the illegal reentry count satisfied the Rule 8(b) requirement that it be part "of the same series of acts or transactions" as the other offenses charged:
It would have been impossible for Brown to have committed the narcotics offenses charged without actually being present in the United States. Since it is alleged that Brown's presence in the United States was, itself, a crime, the substantive narcotics offenses and the illegal reentry count are sufficiently related for purposes of joinder under Rule 8(b).Brown, 744 F. Supp. at 563. See also Espinal-Mejia, 852 F. Supp. at 4-5 (illegal reentry count properly joined where Government argued that defendant "could not have accomplished the other offenses without being present in the United States," and that reentry was therefore "a critical act" leading to the commission of other crimes).
The two counts of the superseding indictment are properly joined under Rule 8(b) and also under Rule 8(a).
Rule 14 permits the Court to order separate trials of counts where "it appears that a defendant . . . is prejudiced by a joinder of offenses . . . ." To succeed on a motion to sever under Rule 14, the defense "must show not simply some prejudice but substantial prejudice,"United States v. Werner, 620 F.2d 922, 928 (2d Cir. 1980) (emphasis in original). Felix claims that the illegal reentry charge will result in "prejudicial spillover," because it will notify the jury that Felix had previously been convicted of an "aggravated felony" involving narcotics.
The commission of an aggravated felony prior to deportation is merely a sentencing factor, not an element of the crime of illegal reentry.Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 239, 247 (1998). The fact of the "aggravated felony" need not be submitted to the jury. United States v. Latorre-Benavides, 241 F.3d 262, 264 (2d Cir.),cert. denied, 121 S.Ct. 2013 (2001). The Government has agreed that a redacted copy of the indictment can be supplied to the jury to remove any reference to Felix's prior drug felony. This eliminates any potential prejudice caused by the "aggravated felony."
Assuming Estrella is no longer a fugitive, he wants to be severed from Felix claiming that the illegal reentry charge will cause prejudicial spillover to him.
Estrella's joinder is proper under both Rules 8 and 14. He and Felix are charged with participating in the same narcotics conspiracy which is the same act or transaction under Rule 8(b).
As my colleague, Judge Leisure, wrote in Brown, p. 561:
Generally, where defendants . . . "are jointly indicted [they] should be jointly tried." United States v. Ventura, 724 F.2d 305, 312 (2d Cir. 1983). This is particularly true where the crimes charged involves a common scheme or plan. See United States v. Turoff, 853 F.2d 1037, 1042-43 (2d Cir. 1988); United States v. Girard, 601 F.2d 69, 72 (2d Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979). The Supreme Court has unequivocally stated that "[j]oint 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).
The Federal Rules of Criminal Procedure reflect the federal system's "preference . . . for joint trials of defendants who are indicted together." Zafiro v. United States, 506 U.S. 534, 537 (1983). The Supreme Court has ruled that "[j]oint trials `play a vital role in the criminal justice system'" in that "[t]hey promote efficiency and `serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.'" Id. (quoting Richardson v. Marsh, 481 U.S. 200, 209-10 (1987)).
Limiting instructions to the jury at trial will prevent any potential prejudice to Estrella because of the illegal reentry evidence against Felix. This is not that complicated a case.
As to Federal Rule of Evidence 404(b), the Government is directed to supply defense counsel and the Court with notice of the proposed "other act" evidence ten calendar days before jury selection.
The motions for severance are denied in all respects.