United States v. Lech

161 F.R.D. 255, 1995 U.S. Dist. LEXIS 3035, 1995 WL 329250
CourtDistrict Court, S.D. New York
DecidedMarch 10, 1995
DocketNo. S1 94 Cr. 285 (SS)
StatusPublished
Cited by10 cases

This text of 161 F.R.D. 255 (United States v. Lech) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Lech, 161 F.R.D. 255, 1995 U.S. Dist. LEXIS 3035, 1995 WL 329250 (S.D.N.Y. 1995).

Opinion

Opinion and Order

SOTOMAYOR, District Judge.

Wlodek Jan Lech (“Lech”) moves to sever his trial and the counts charged against him in superseding indictment (the “Indictment”) filed in this action pursuant to Rule 8(b), or in the alternative Rule 14, of the Federal Rules of Criminal Procedure. For the reasons discussed below, the motion to sever under Rule 8(b) is granted.

Background

The seven count Indictment in this action includes three criminal projects involving the New York City Board of Education (“BOE”). Counts One through Three charge Carmine [256]*256Russo (“Russo”) and Henry Fulton (“Fulton”) with conspiracy, bribery, and mail fraud in connection with a construction project located at 402 Eastern Parkway, Brooklyn, New York (the “Eastern Parkway Project”).

Counts Four and Five charge Russo, Fulton, and Lech with conspiracy and bribery in a scheme to have the BOE award a $500,-000. 00 contract to remove asbestos from the Julia Richman High School (the “Richman Project”).

Count Six and Seven charge Russo with conspiracy and bribery to induce BOE officials to enter into a long-term lease and renovation agreement for a commercial property located at 230-36 125th Street in Manhattan (hereinafter the “125th Street Project”).

Discussion

Rule 8(a) of the Federal Rules of Criminal Procedure permits the joinder of unrelated offenses of a similar character against a single defendant. In contrast, Rule 8(b) deals with the joinder of multiple defendants and requires more than the mere existence of similarities between some of the actors or crimes. United States v. Carrozza, 728 F.Supp. 266, 269 (S.D.N.Y.1990), aff'd 956 F.2d 1160 (2d Cir.1992). Rule 8(b) (“Rule 8(b)”) provides:

Two or more defendants may be charged in the same indictment or information 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. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

Joinder under Rule 8(b), therefore, is proper where the criminal acts of two or more persons (1) arise out of a common plan or scheme, or (2) are unified by some substantial identity of facts or participants. United States v. Cervone, 907 F.2d 332, 340-41 (2d Cir.1990), cert. denied, 498 U.S. 1028, 111 S.Ct. 680, 112 L.Ed.2d 672 (1991) (internal quotations and citations omitted). As a general rule, these requirements are satisfied where the Government alleges the existence of an overall conspiracy linking the various substantive crimes charged in an indictment1. United States v. Henry, 861 F.Supp. 1190, 1200 (S.D.N.Y.1994) (Schwartz, J.) (citing United States v. Bernstein, 533 F.2d 775, 789 (2d Cir.), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976)). It is well settled, however, that two separate transactions do not constitute a “series” within the meaning of Rule 8(b) “merely because they are of a similar character or involve one or more common participants.” United States v. Bradford, 487 F.Supp. 1093, 1094 (D.Conn.1980) (Cabranas, J.) (citing cases).

The Government here concedes that Lech did not participate in, or have specific knowledge of, the schemes involving the Eastern Parkway and 125th Street Projects. Transcript of Oral Argument, dated December 2, 1994 (“Oral Arg.Tr.”), at 45^6. The Government also concedes that the three schemes detailed in the Indictment could not be charged in one overall conspiracy count. Id. Instead, the Government contends that Lech was aware that the corrupt BOE official with whom he and Fulton were dealing, was somehow involved in a separate criminal relationship with Fulton. Id.; see also Government’s Memorandum of Law in Opposition to Defendants’ Pretrial Motions (“Govt. Memorandum”) at 31. On the basis of this knowledge, the Government maintains that Lech’s joinder under Rule 8(b) was proper because “the counts charging Lech with participating in the asbestos removal scheme [the Richman Project] arise directly from the false invoice scheme [the Eastern Parkway Project].” Govt. Memorandum at 33. That is, the Government claims that Russo’s and Fulton’s success in executing the Eastern Parkway Project scheme was an “unmistak[257]*257able springboard” for the Richman and 125th Street Projects. Id. at 35.

The principle case upon which the Government relies is United States v. Turoff, 853 F.2d 1037, 1043 (2d Cir.1988). Turoff involved two fraudulent schemes initiated by New York City Taxi and Limousine Commissioner Jay Turoff (“Turoff’) and Harriet and Alan Silver (the “Silvers”). In the first scheme, Turoff and the Silvers entered into an arrangement whereby Turoff would mandate the installation of electronic taxi meters manufactured by the Silvers in return for a portion of the profits. In the second scheme, Turoff and the Silvers opened accounts at a credit union, which agreed not to report taxable interest to the Internal Revenue Service. The Second Circuit held that joinder of the two schemes was proper under Rule 8(b) because there was a “key link” between the schemes in that some of the money deposited in the credit union accounts was used to advance the taxi meter scheme. Id. at 1044.

The Government ignores a crucial distinction between Turoff and the instant action. In Turoff, all of the defendants were aware of and participated in both schemes. In the instant ease, Lech had very little, if any, knowledge of the other schemes, and did not participate in them. At best, Turoff stands for the proposition that Russo and Fulton may be tried together because they had specific knowledge of each other’s activities, jointly participated in many of the acts alleged in the Indictment, and used that knowledge and participation as a springboard for the Richman and 125th Street Projects.

The instant case is closer to one considered by Judge Stanton in United States v. Me-nashe, 741 F.Supp. 1135 (S.D.N.Y.l990). In Menashe, the first count of the indictment charged Menashe, St. Francis, and O’Toole with conspiring to sell American made military planes located in Israel. In the second count, the Government charged O’Toole with conspiring to sell American made anti-aircraft missiles located in Israel. . Judge Stanton severed the second count, finding that the Government’s failure to allege that Me-nashe or St. Francis were “aware of or joined in” O’Toole’s plan to sell missiles made join-der improper. Id. at 1138 (citations omitted).

Other courts in this circuit considering this type of joinder have reached similar conclusions. In United States v. Giraldo, 859 F.Supp. 52 (E.D.N.Y.1994), the Government charged Giraldo, Fermín, Tellez, and Giral-do-Gamez with conspiracy and distribution of cocaine between February and March 1994.

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Cite This Page — Counsel Stack

Bluebook (online)
161 F.R.D. 255, 1995 U.S. Dist. LEXIS 3035, 1995 WL 329250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lech-nysd-1995.