The opinion of the court was delivered by: ASPEN
MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE
On November 6, 1990, the defendants' motions to sever this action were granted pursuant to Federal Rule of Criminal Procedure 14. However, we temporarily stayed execution of the order to consider proposals from any of the parties to improve the severance plan outlined in the Court's opinion. For the following reasons and the reasons set forth in United States v. Andrews, 754 F. Supp. 1161 (N.D. Ill. 1990) (" Andrews I "), we confirm our November 6, 1990 order granting severance, but revise the plan in the manner outlined below.
The 175-count, 305-page indictment, returned on October 6, 1989, names thirty-eight defendants and alleges well over 250 factually separate criminal acts committed over a time span of more than twenty years. A single, mammoth trial of these diverse crimes -- a mega-trial -- would last a year or more and require the attendance of more than one hundred witnesses, dozens of court and security personnel, and over twenty defense attorneys. Based on the undesirable prospect of such a trial and the consequent likelihood of severance, we long ago began to consider the difficulty of developing a coherent scheme to sever the indictment's monolithic and twisted maze of charges and defendants. Because at any time prior to trial the government is the only party with complete knowledge of the evidence that it intends to present, we sought its assistance in devising an efficient and effective severance plan.
On May 10, 1990, we issued an order requesting the government to
propose a plan to sever this case into several trials (by defendants and/or counts) in the event the defendants' motions to sever are granted. . . [and to] consider whether the interests of justice would be adequately served by limiting the prosecution of individual defendants to charges that can be proven expeditiously and that, in the event of conviction, carry exposure to maximum penalties.
Cf. United States v. Casamento, 887 F.2d 1141, 1152 (2d Cir. 1989) (district court should request government input when severing mega-trial), cert. denied, 493 U.S. 1081, 110 S. Ct. 1138, 107 L. Ed. 2d 1043 (1990). In its May 31, 1990 brief vigorously opposing severance, the government declined this request to propose a plan. It stated that "despite great discussion and diligent consideration of the Court's directive, [the government] is unable to present feasible suggestions which would appreciably shorten these proceedings even if they were severed in some form." Government's Brief at 43. The government then went to great lengths to show that, due to the wide-ranging and overlapping offenses of the defendants, an efficient severance plan was not feasible. Id. at 43-47. It additionally argued that the difficulties of the proposed single trial were overstated by the defendants. Id. at 29-35. Later, at a pretrial conference on August 31, 1990, we again requested suggestions from the government regarding an appropriate severance plan and asked it to consider dismissing some of the counts. The government also declined this invitation to propose a plan. Instead, it continued to insist that the trial could only be tried as indicted and flatly stated that it would not dismiss any counts.
Thus, on November 6, 1990, without input from the government, we granted severance and devised a severance plan that separated the defendants into five non-overlapping groups. But, to ensure that the plan fairly reflected the legitimate interests of all the parties, we temporarily stayed execution of the order to consider suggested improvements to our severance plan consistent with our stated goals.
On November 9, 1990, the government filed a motion for continuance of the stay to allow it more time to submit an alternate severance plan. Surprisingly, in this motion, the government states that it had "always recognized the manageability problems caused by this case," and that it had long been willing to "'participate in the formulation of a severance plan.'"
Government's Motion, at 1 n. 1 (quoting Andrews I, [slip op.] at 29). Notwithstanding our unequivocal requests for a proposed government plan and our repeated concerns about the difficulties of a joint mega-trial, the government also suggests that it waited to submit a meaningful severance proposal until the Court granted severance and "provided guidance on this matter."
Id. These assertions are not at all consistent with the government's previous unwavering conduct and, quite frankly, we find them somewhat disingenuous. In any event, the government now has recognized, as it should have when the indictment was returned on October 6, 1989, that the responsibility for returning a "sane" indictment is first and foremost on its shoulders. See Andrews I, [slip op.] at 26-27.
Now, more than a year after the indictment's return, after stonewalling this Court for many months, after being confronted with the imminent possibility of a severance plan being imposed upon it, and after "discovering" the manifest difficulties of a single trial, the government finally offers an extensive and detailed plan of its own. Remarkably, this proposed plan, submitted only a week after the Court granted severance, is indeed a "feasible suggestion which would appreciably shorten these proceedings." Government's Brief at 43 (May 31, 1990). Also, despite its earlier refusals to do so, the government proposes the dismissal of dozens upon dozens of counts and RICO racketeering acts. In its suggested Trial One, it proposes the dismissal of fifty counts and eleven murder conspiracies. In its suggested Trial Two, it proposes the dismissal of seven murder conspiracies and numerous narcotics offenses. In its suggested Trial Three, it proposes to drop every single violent racketeering act against nine defendants and to rely instead solely upon narcotics-related racketeering acts to obtain RICO convictions. The violent racketeering acts the government is willing to dismiss at Trial Three include fourteen murder conspiracies, in which five defendants are charged with eleven or more acts, one defendant is charged with five, and another defendant is charged with four.
To the government's credit, its proposed plan is a good faith and largely successful effort to divide this immense case into manageable and fair trial units. We commend the government for this effort.
The plan that the government proposes significantly differs from the Court's plan, but is nonetheless consistent with the our stated severance goals. In our original plan, believing that they were the more serious crimes, we made a great effort to retain the numerous murder conspiracies charged against the various defendants. The government's plan, with respect to nine of the defendants, casts these charges aside and instead focuses on the narcotics charges. This willingness to forgo the murder conspiracies simplifies the severance task immensely and, unlike the indictment, creates "neatly severable groups." Andrews I, [slip op.] at 32. Because the government is in the best position to assess the strength of its own case, we see no reason to refuse its choice to concentrate on narcotics charges, rather than murder conspiracies, for many of the defendants. So, consistent with the goals of our severance plan as they are expressed in Andrews I, we adopt this change in focus. As stated in Andrews I, among other considerations, we "sought to ensure that the introduction of evidence at trial is not so restricted as to unduly impair the government's case against any defendant or its opportunity to secure a conviction carrying significant penalties." Id. at 1181. Changing the plan as the government suggests presumably advances this goal and, as the plan is outlined below, does not detract from our other stated goals.
Using the government's plan as a framework, the defendants will be divided into five non-overlapping groups to be tried at five separate trials. As in our original plan, the government will be permitted to try each of the defendants for Counts One and Two, RICO conspiracy and substantive RICO respectively, but will not be permitted to try all of the underlying racketeering acts at every trial. Some of these acts will be divided between the trials with minimal overlap and others will not be tried at all. A severance plan of this nature, with non-overlapping defendants and a minimum of overlapping evidence, advances all of the severance goals we expressed in Andrews I. As stated in that opinion, in addition to a concern with the strength of the government's case, we "sought to drastically reduce the volume of evidence against each defendant unrelated to his active participation in El Rukn affairs and his alleged crimes . . . [and to] limit the duplication of evidence at the separate trials [so as] to minimize aggregate trial time and the corresponding expenditure of both public and judicial resources." Id. With these concerns in mind, the defendants will be tried pursuant to the severance plan outlined below.
Trial One will include defendants Jeff Boyd, Edgar Cooksey, Andrew Craig, Charles Green, Sammy Knox, Felix Mayes, and Noah Robinson.
Each of these defendants will be tried for the violent crimes in which, according to the government, he was a "direct participant." This includes the murders of Gilbert Connors, Gregory Freeman, Willie McLilly, Roy Love, and Mickey Cogwell, and the McKinley kidnapping, as well as the King Cobra murder conspiracy and the related murders and attempted murders. The numerous crimes in which Robinson is the central figure, including the Leroy Barber murder, the Robert Aulston murder attempt, and the various acts of witness tampering against Janice Rosemond and Henry Leon Harris, will also be tried at Trial One. The Trial One crimes are alleged as Racketeering Acts 1 through 4 and 19 through 30, and charged in Counts Four through Sixteen and One Hundred Seventy-Five.
For primarily two reasons, the government also proposes the inclusion of the extensive twenty-three year narcotics conspiracy charged as Count Three and Racketeering Act 31 in violation of 21 U.S.C. § 846 (1988). First, according to the government, inclusion of the § 846 conspiracy furthers our objective to ensure the maximum penalties against these defendants because this crime carries a mandatory minimum sentence of thirty years to life without parole. Second, the government contends that the evidence of this conspiracy is essential to an understanding of the El Rukn organization and is relevant to most of the charged murders. We do not find either of these reasons compelling. We do not share the government's concern with the severity of the penalties that these defendants are facing. Even without the § 846 conspiracy, each of the Trial One defendants will be tried for anywhere from three to eight counts and, with the exception of F. Mayes, are facing, at a minimum, a potential sentence of natural life plus forty years.
F. Mayes, who is forty-one years old, faces potentially fifty years in prison for convictions for RICO conspiracy, substantive RICO, and witness intimidation under 18 U.S.C. § 1512(b)(3). We also do not share the government's concern regarding the necessity of the narcotics conspiracy evidence to an understanding of the El Rukn enterprise and the charged murders. To the extent that evidence of narcotics trafficking is directly related to these matters, such evidence will be ...