United States District Court, N.D. Illinois
February 20, 2004.
UNITED STATES OF AMERICA, Plaintiff,
JAMES M. DUFF, PATRICIA GREEN DUFF, WILLIAM E. STRATTON, JOHN J. LEAHY, EDWARD WISNIEWSKI, STARLING ALEXANDER, AND TERRENCE DOLAN, Defendants
The opinion of the court was delivered by: ELAINE E. BUCKLO, District Judge
MEMORANDUM OPINION AND ORDER
Defendants James Duff, William E. Stratton, Patricia Green Duff,
Terence Dolan, John Leahy, Edward Wisniewski, and Starling Alexander are
named in a thirty-one count indictment in connection with an alleged
criminal enterprise and its racketeering activities. All defendants
except for Mr. Duff move to sever their trials under Rules 8(b) and 14
of the Federal Rules of Criminal Procedure. I DENY the motions.
The various defendants are charged with different combinations of
offenses. Mr. Duff and Mr. Stratton are charged with the operation of a
criminal enterprise devoted to money-laundering and fraud in violation of
RICO, 18 U.S.C. § 1962 (d). Mr. Duff, Mr. Stratton, Ms. Duff, and Mr. Dolan
are charged with a series of mail fraud counts in connection with a
scheme to defraud the city of Chicago by falsely certifying businesses as
women-owned or minority-owned. Mr. Duff, Mr. Stratton, Mr. Leahy, Mr.
and Mr. Alexander are charged with a series of mail and wire fraud
counts in connection with a scheme to defraud insurance carriers by
falsely identifying high-risk workers as clerical or labor union.
Finally, Mr. Duff and Mr. Stratton are charged with a number of money
laundering violations. In other words, each defendant is charged with
either conspiring to conduct the affairs of the enterprise or with
engaging in the activities of the enterprise, or both.
Rule 8(b) states that multiple defendants "may be charged in the same
indictment. . . 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." The Seventh Circuit has interpreted the phrase
"same series of acts or transactions" to mean acts or transactions that
are "pursuant to a common plan or scheme." United States v. Lanas,
324 F.3d 894, 899 (7th Cir. 2003). Rule 8(b) is to be construed "broadly
to allow liberal joinder in order to enhance judicial efficiency." United
States v. stillo, 57 F.3d 553, 557 (7th Cir. 1995). The moving defendants
argue that the scheme to defraud the city and the scheme to defraud
insurers were separate schemes and are not properly characterized as the
"same series of acts or transactions" under Rule 8(b). Here, the
government has alleged a RICO conspiracy, as well as two fraud schemes
and a money-laundering scheme which serve as predicate racketeering
activities of the charged RICO
conspiracy. Where a RICO conspiracy is alleged in the indictment, joinder
is appropriate if the RICO enterprise supplies a nexus to tie together
the defendants who worked to benefit the enterprise. See, e.g., United
States v. Houle, 237 F.3d 71, 75 (1st Cir. 2001). The cases cited by the
defendants in support of severance are factually distinguishable because
the indictments in those cases either did not include a RICO count
(e.g., United States v. Parley', 1998 U.S. Dist. LEXIS 15312, No.
97-CR441 (N.D. Ill. Sep. 11, 1998) (Gottschall, J.)) or accused the
severed defendant only of independent criminal activity without the
participation of the RICO defendants (United States v. Quintanilla, 1991
U.S. Dist. LEXIS 1815, No. 90-CR772 (N.D. Ill. Feb. 13, 1999) (Conlon,
J.)). Joinder of all defendants is proper under Rule 8(b).
Defendants argue in the alternative for relief from prejudicial joinder
under Rule 14, which provides: "If it appears that a defendant . . . is
prejudiced by a joinder of offenses or of defendants . . . the court may.
. . grant a severance of defendants or provide whatever other relief
justice requires." In judging a motion for severance under Rule 14, a
district court "must balance the benefit of judicial efficiency in a
joint trial with the risk of prejudice to a defendant." United States v.
Handford, 39 F.3d 731, 735 (7th Cir. 1994). "The economies of a single
trial in all but the most unusual circumstances outweigh the danger of
prejudice to the least guilty or prejudice to all defendants because of
confusion." United States v. Harding, 209 F.3d 652, 664 (7th Cir. 2000).
Severance is warranted only where the defendant is able to demonstrate
that "severe prejudice" will result from a joint trial. Handford, 39 F.3d
at 735. Defendants fail to make such a showing here. If evidence is
presented carefully and proper jury instructions are issued, juries are
presumed capable of keeping track of which evidence pertains to which
charges, even where, as here, some defendants are charged with more
extensive and infamous criminal acts than others. See United States v.
Vest, 116 F.3d 1179, 1192 (7th Cir. 1997).
Defendants' argument that severance will serve judicial economy is
equally unpersuasive. Cases cited in support of severance, such as United
States v. Andrews, 754 F. Supp. 1161 (N.D. Ill. 1990) (Aspen, J.),
involved 37 defendants and a 175-count indictment; trying such a
gargantuan case all at once poses hardships not likely here. See United
States v. Grossman, 272 F. Supp.2d 760, 763-64 (N.D. Ill. 2003). The
motions for severance are DENIED.
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