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U.S. v. CARMAN

July 14, 2004.

UNITED STATES, Plaintiff,
v.
RICHARD CARMAN, ALBERTO RODRIGUEZ, CHARLES STATES, and OMAR AVILA, Defendants.



The opinion of the court was delivered by: RONALD GUZMAN, District Judge

MEMORANDUM OPINION AND ORDER

This matter is before the Court on defendants Richard Carman, Alberto Rodriguez, Charles States, and Omar Avila's motions for severance as well as Carman and Avila's motions to dismiss on duplicity grounds. For the reasons set forth below, these motions are denied.

Background

  This case involves a sixty-six page, twenty-nine count superseding indictment (hereinafter the "indictment") charging eleven defendants with crimes arising out of an eight-year racketeering and drug conspiracy. Count 1 charges eight defendants, namely Richard Carman (hereinafter "Carman"), Jerome Carman (hereinafter "J. Carman"), Cesar Casiano, Natividad Calderon, Alberto Rodriguez, Charles States, Daniel Perez, and Omar Avila with engaging in a pattern of racketeering activity in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO") from 1994 through August 2001. 18 U.S.C. § 1962(c). The indictment lists seventeen acts of racketeering, including a drug conspiracy, eleven kidnapings (one of which ended in murder), one robbery, one theft, and three instances of possession with intent to distribute various quantities of marijuana, crack and cocaine. Each racketeering act is specific as to when it occurred and who was involved and many are broken down into a number of interrelated crimes. Count 2 charges the same eight defendants with RICO conspiracy under 18 U.S.C. § 1962(d) and alleges that each defendant agreed to commit at least two acts of racketeering. Count 3 charges the same eight defendants, plus Reynaldo Christopher and Charles Brown, with participating in an overlapping drug conspiracy in violation of 21 U.S.C. § 846.

  Counts 4 through 24 charge various subsets of defendants with crimes such as murder, extortion, possession of a firearm, witness tampering, hostage taking, and possession and distribution of drugs, all of which stem from the racketeering acts set forth in Count 1. In particular, Counts 4 and 5 charge Richard Carman, Omar Avila and Daniel Perez with the murder of Sindulfo Miranda. Counts 25 through 28 charge Charles States with crimes incident to his arrest, including forcibly assaulting and resisting law enforcement officers, attempted murder, and two counts related to possession of a firearm.*fn1 Finally, Count 29 charges Francisco Ortiz for attempted possession of marijuana, which occurred in connection with the kidnaping and murder of Miranda.*fn2 Defendants Ortiz, Casiano and Calderon have pleaded guilty, and Perez is expected to do so. This leaves the seven defendants for trial, including Carman, J. Carman, Rodriguez, States, Avila, Christopher and Brown. Defendants Carman, Rodriguez, States and Avila have moved for severance. Many of the arguments revolve around the gruesome murder charges.*fn3 For instance, Carman and Avila move for separate trials alleging that each has given a statement inculpating the other in the murder. The other two movants, Rodriguez and States, did not come on the scene until roughly four years after the murder. They also seek separate trials, claiming they will be unfairly prejudiced once the jury hears evidence of the murder. In light of these arguments, it is not necessary to detail every alleged drug deal and kidnaping, but a few facts regarding the objectives of the enterprise and the alleged murder will be helpful.

  The RICO enterprise and conspiracy was allegedly organized and headed by Richard Carman.*fn4 The primary goal was dealing drugs. Defendants allegedly obtained drugs primarily by planning and carrying out a series of violent kidnapings, robberies and extortions of drug dealers and suspected drug dealers. Defendants would steal money and other valuables from their victims and split the proceeds.

  The first kidnaping took place in July 1997. Carman, Avila, Perez and Ortiz allegedly kidnaped Sindulfo Miranda, a suspected drug dealer, with the intention of stealing about 1,000 kilograms of marijuana. Miranda was put in the back of a rental van driven by Ortiz and was severely beaten en route to an apartment on the north side of Chicago. Over the next twenty-four hours, Carman interrogated Miranda as to the whereabouts of the marijuana. Apparently not satisfied with his answers, Carman and Avila allegedly continued to beat, burn and otherwise brutally torture Miranda until he died.

  Ten other kidnapings took place between October 1997 and August 2001. According to the government, Carman planned and participated in every kidnaping. J. Carman is named as a participant in nine kidnapings, Perez in eight, States in four, Rodriguez and Casiano in three, Calderon in two, and Avila, Christopher and Brown in one.*fn5 Each kidnaping fit within the alleged scheme in that defendants allegedly carried firearms and threatened, beat or tortured their victims to obtain drugs and money or information in pursuit of the same. Additional facts are incorporated as necessary to address defendants' arguments with respect to joinder and severance.

  Discussion

  A. Motion to Adopt Is Denied.

  As an initial matter, Avila's blanket request to adopt Carman's motion for severance is denied in accordance with the Court's previous rulings.

  B. Joinder Is Proper as to All Defendants and All Counts. 1. Avila Is Properly Joined under Rule 8(b).

  Avila claims he is entitled to a separate trial because joinder is improper. He argues: "Mr. Carman's discussion of the significant disconnects — disparate configurations of defendants, disparate events separated not only temporally, but in terms of their nature, character or flavor — is sufficient to demonstrate that the non-capital defendants and non-capital charges are improperly joined with the capital defendants and capital murder charges under Rule 8(b)." (Avila Mot. at 4.) Avila cites no relevant authority and makes no attempt to explain precisely how Carman's argument entitles him to a separate trial under FED. R. CRIM. P. 8(b).*fn6 While the Court is tempted to outright reject Avila's argument based on this bald assertion, it briefly considers whether he is a proper defendant under Rule 8(b).

  Proper joinder is determined solely by the allegations in the indictment. United States v. Bruun, 809 F.2d 397, 406 (7th Cir. 1987). Rule 8(b) provides that all defendants who participated in the "same series of acts or transactions" may be charged in a single indictment. FED. R. CRIM. P. 8(b). The usual meaning of the phrase "same series of acts or transactions" includes acts pursuant to a common scheme or plan. United States v. Lanas, 324 F.3d 894, 899 (7th Cir. 2003); United States v. Moya-Gomez, 860 F.2d 706, 766 (7th Cir. 1988) (citations omitted). It is well settled that when an indictment properly alleges a conspiracy, joinder is proper with respect to all participants. United States v. Garner, 837 F.2d 1404, 1412 (7th Cir. 1987); United States v. Bailin, No. 89 CR 668, 1990 WL 114741, at *1 (N.D. Ill. July 17, 1990). The indictment charges Avila with participating in the RICO and drug conspiracies which were ongoing from 1994 through August 2001. Both conspiracies revolve around the same alleged scheme, namely, dealing in drugs which largely were obtained by kidnaping and robbing drug dealers and suspected drug dealers. For his part, Avila allegedly participated in the kidnaping, torture and murder of Miranda, a suspected drug dealer. Several months later, Avila conspired to kidnap another individual, who was in fact a drug dealer. Nonetheless, Avila argues he is misjoined because the alleged rackcteering acts (a) were spread out over nearly eight years, (b) were committed by varying combinations of defendants, and (c) differed in character, nature and flavor. None of these arguments renders joinder improper.

  The phrase "same series of acts or transactions" contemplates acts which are connected not so much by time as by their logical relationship. United States v. Carlisi, No. 92 CR 1064, 1993 WL 339079, at *15 (N.D. Ill. Aug. 30, 1993) (citing United States v. Cavale, 688 F.2d 1098, 1106 (7th Cir. 1982)); see also Lanas, 324 F.3d at 899 (rejecting misjoinder argument and finding single unified scheme over defendant's claim that temporal connections between offenses were slim); United States v. Marcy, 777 F. Supp. 1393, 1396 (N.D. Ill. 1991) (stating mere temporal breadth is insufficient to warrant a finding of misjoinder). Contrary to Avila's argument, the Court finds the pattern of crimes set forth in the indictment are undoubtedly of similar nature, character and flavor. Defendants allegedly planned, carried out and split the proceeds from eleven violent kidnapings over the course of eight years. Moreover, Avila's involvement in the kidnaping and murder of Sindulfo Miranda is in keeping with the alleged scheme, as is his conspiring to kidnap another drug dealer. The fact that all of the kidnapings were not carried out by the same defendants or in precisely the same way is inconsequential because they are all logically connected. See United States v. Lanas, 324 F.3d 894, 899 (7th Cir. 2003) (varying involvement of defendants does ...


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