USA v. Burke, et al

• Court: District Court, D. New Hampshire
• Decided: January 27, 1997
• Docket: CR-96-050-M
• Status: Published

Opinion

USA v . Burke, et al CR-96-050-M 01/27/97 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal N o . 96-50-1-6-M

Matthew McDonald, et a l .

O R D E R

Several defendants have moved for a change of venue and for

severance of some of the defendants and some charges from others.

In addition, two defendants have moved for a continuance of the

trial now scheduled to begin on March 4 , 1997. A hearing was

held on all pending motions on January 2 1 , 1997. The motions

requesting severance, change of venue, and continuance are

resolved as follows.

DISCUSSION

Five defendants, Stephen Burke, Matthew McDonald, Patrick

McGonagle, Michael O’Halloran, and Anthony Shea, were charged on

May 3 0 , 1996, in a fourteen count indictment with racketeering, conspiracy, and other crimes involving to a series of bank and

armored car robberies. On December 1 2 , 1996, the grand jury

issued a superseding indictment that named an additional

defendant, John Burke. The robberies allegedly occurred between

early 1990 and August 1994 in New England states including New

Hampshire and Florida. Although all of the defendants are not

charged with participating directly in each of the robberies or

other individual crimes, all defendants are charged with a single overarching conspiracy to rob banks and armored cars in violation

of 18 U.S.C.A. §§ 1951 and 2113(a)-(g). All of the defendants

and charges are joined in a single indictment. Their motions for

change of venue, severance, and continuance are addressed

seriatim.

A. Motions for a Change of Venue

Defendants Patrick McGonagle and Stephen Burke, joined by

Anthony Shea and Michael O’Halloran, move for a change of venue

on the grounds of the prejudicial effects of pretrial publicity

about them and their involvement in the crimes charged,

particularly in the armored car robbery in Hudson, New Hampshire,

which included the murder of the two drivers. The court will

grant a change of venue if “there exists in the district where

the prosecution is pending so great a prejudice against the

defendant that the defendant cannot obtain a fair and impartial

trial at any place fixed by law for holding court in that

district.” Fed. R. Crim. P. 21(a). The change of venue decision

is left to the sound discretion of the trial court. United

States v . Brandon, 17 F.3d 409, 441 (1st Cir. 1994). A defendant

urging a change of venue must be able to show either presumed or

actual prejudice. United States v . Rodriguez-Cardona, 924 F.2d

1148, 1158 (1st Cir. 1991). Until a jury pool is examined on the

effect of publicity on each member’s ability to sit impartially

on the case, defendants cannot show actual prejudice of jury

members. Instead, they must and do assert presumed prejudice

based on pretrial publicity.

2 “Prejudice may properly be presumed when either (a)

inflammatory publicity about a case has so saturated a community

that it is almost impossible to draw an impartial jury from the

community, or (b) so many jurors admit to disqualifying prejudice

that the trial court may legitimately doubt the avowals of

impartiality made by the remaining jurors.” Rodriguez-Cardona,

924 F.2d at 1158; accord Brandon, 17 F.3d at 441. Again, as jury

members for this case are not yet identified, the second

alternative, saturation with inflammatory publicity, is the only

issue that can be examined at this stage.

To meet the prejudice test, publicity must be inflammatory

or sensational not merely factual reporting of a crime or charges

brought against defendants. Rodriguez-Cardona, 924 F.2d at 1158;

United States v . Anguilo, 897 F.2d 1169, 1181 (1st Cir. 1990)

(“To justify a presumption of prejudice under this standard, the

publicity must be both extensive and sensational in nature. If

the media coverage is factual as opposed to inflammatory or

sensational, this undermines any claim for a presumption of

prejudice.”) Accordingly, extensive but largely factual reporting

will not support a change of venue. Id.; see also United States

v . Medina, 761 F.2d 1 2 , 19 (1st Cir. 1985) (news coverage not

prejudicial where accounts were straightforward and unemotional,

factual accounts of events rather than an anticipatory trial in

the media or televised confession).

1. McGonagle’s Motion

3 The news accounts provided by McGonagle of news coverage of

the Hudson robbery and murders while voluminous is largely

factual. Although the news reports include information about

McGonagle’s prior convictions, his alleged involvement in the

Hudson robbery, and an opinion that he was the architect of the

Hudson robbery, none of the reports seem to rise to the

sensationalism that would support a change of venue. In any

case, the actual prejudice to the jurors can be assessed at the

time of trial through voir dire.

2. Burke’s Motion

The Boston Herald news clippings quoted by Burke, joined by

Shea and O’Halloran, include inflammatory remarks that might

suggest prejudice. Even these remarks, however, do not appear to

raise the specter of a trial in the media and the resulting

prejudice that Rule 21(a) is intended to prevent. Based on the

information presented so far, prejudice of the entire jury pool

in New Hampshire cannot be presumed. Like McGonagle, these

defendants may raise the question of jury prejudice at the time

of jury selection when potential jury members may be examined on

the prejudicial effects of publicity at that time.

B. Motions for Severance

Defendants Stephen Burke, John Burke, and Patrick McGonagle

file motions to sever. Stephen Burke moves to sever some counts

from others and to sever his trial from that of Shea and

McDonald. John Burke moves for a continuance of the trial o r , in

the alternative to sever his trial from the remaining defendants.

4 McGonagle moves to dismiss the charges against him o r , in the

alternative, to sever his trial from all other defendants.

Whether to grant a defendant’s motion to sever his case from

that of codefendants or some charges from others is assigned to

the discretion of the trial court. United States v . Dimarzo, 80

F.3d 656, 659 (1st Cir. 1996). “When several defendants are

named in a unified indictment, there is a strong presumption that

they should be tried together. To obtain a severance under such

circumstances, a defendant must demonstrate extreme prejudice,

such as by showing a ‘serious risk that a joint trial would

compromise a specific trial right,’ or would ‘prevent the jury

from making a reliable judgment about guilt or innocence.’”

United States v . Houlihan, 72 F.2d 1271, 1295 (1st Cir. 1996)

(quoting Zafiro v . United States, 506 U.S. 5 3 4 , 538-39 (1993))

(other citations omitted). In other words, to justify severance,

the circumstances must be so prejudicial as to deprive a

defendant of a fair trial constituting a miscarriage of justice.

United States v . Smith, 46 F.3d 1223, 1230 (1st Cir. 1995).

Motions to sever some charges from others are judged under the

same prejudice standard. United States v . Taylor, 54 F.3d 9 6 7 ,

974 (1st Cir. 1995); see also United States v . Neal, 36 F.2d

1190, 1207 (1st Cir. 1994). Motions for severance are rarely

granted when defendants are charged with conspiracy. Brandon, 17

F.3d at 440; accord DiMarzo, 80 F.3d at 658. 1. Stephen Burke’s Motion to Sever Felon in Possession of a Firearm Charges

5 Burke contends that the jury will be unfairly prejudiced

against him by the introduction of his prior convictions of armed

robbery to prove the felon in possession charges against him. As

discussed at the hearing, a certified copy of his prior

conviction, introduced to show that Burke was a felon at the time

he is alleged to have possessed a firearm, may be redacted to

hide the nature of the offense to prevent any unfair prejudice.

Accordingly, as no prejudice need inure from the introduction of

the conviction, severance is unnecessary. To protect his

interests, Burke may renew his motion at trial requesting an

appropriately redacted version of his prior conviction.

2. Burke’s Motion to Sever the Hudson robbery charges.

Burke asserts that the government’s evidence against him on

the Hudson robbery charges is considerably stronger than the

evidence pertaining to any of the other robberies. Burke argues

that the government would not have charged him with the other

offenses but for the Hudson robberies. As a result, he contends,

the jury is likely to convict him of the other offenses based on

“spillover prejudice” from the stronger Hudson case.

All trials involving multiple defendants or multiple counts

against a single defendant present the possibility that a

defendant’s case will be prejudiced by “spill over” from evidence

of another charged offense. See United States v . Pierro, 32 F.3d

611, 615 (1st Cir. 1991). Rarely does such ordinary risk of

prejudice threaten to compromise the fairness of the trial to

require severance. Id.; see also Brandon, 17 F.3d at 440. Burke

6 has not raised a suggestion of prejudice against his defense in

this case that meets the high standard necessary to justify a

severance.

Further, if the Hudson charges were severed from the

remaining charges, a question of double jeopardy might arise in

the second trial as the Hudson charges are both individual

charges and part of the broad overall conspiracy. See United

States v . Edmond, 924 F.2d 2 6 1 , 268-70 (D.C. Cir. 1991)

(interpreting the plurality opinion in Jeffers v . United States,

432 U.S. 137 (1977) and Ohio v . Johnson, 467 U.S. 493, 501 (1984)

to impose a waiver of Fifth Amendment rights when defendant

achieves severance of charges and separate trials); see also

People v . Gill, 59 F.3d 1010, 1013 (9th Cir. 1995) (same in

context of successfully challenging joinder); United States v .

Blyden, 930 F.2d 323, 327 (3d Cir. 1991) (same); but see Jeffers,

432 U.S. at 153 n . 21 (questioning waiver that would impose a

choice between Sixth and Fifth Amendment rights in moving for

severance). At the hearing, Burke’s counsel declined to waive

his double jeopardy rights as to a second trial if the Hudson

charges were severed from the other charges. Finding

insufficient prejudice inherent in the trial of all of the

charges together to justify severance, and further noting the

potential double jeopardy dilemma, Burke’s motion to sever the

Hudson charges is denied. 3. Burke’s motion to sever his trial from codefendants Shea and McDonald

7 Burke contends that he will be unfairly prejudiced by

evidence introduced against his codefendants Shea and McDonald

because racketeering acts A through D are charged against only

them and they alone are charged with drug offenses and will have

evidence of drug use introduced against them. In general, juries

are expected to sort through various charges and different

defendants, aided by limiting instructions if necessary, and

distinguish the charges against each defendant. See Brandon, 17

F.3d at 440. In addition, Burke is charged with racketeering

conspiracy including the four acts charged individually against

Shea and McDonald so that evidence of those acts is also

admissible against Burke. Under these circumstances, Burke

cannot complain of prejudice caused by evidence relating to

Racketeering acts A through D. See United States v . O’Bryant,

998 F.2d 2 1 , 26 (1st Cir. 1993). Burke has failed to demonstrate

sufficient prejudice to his defense from evidence or charges

against Shea and McDonald relating to their drug use.

Motion to sever from codefendants is denied.

4. McGonagle’s Motion to Dismiss or Sever

a. Motion to Dismiss

McGonagle contends that, as to him, counts three and nine

charge only his involvement in the Hudson robbery, and are

therefore identical. On that basis, he asks that the indictment

be dismissed as multiplicitous. The indictment may properly

charge separate conspiracies. See United States v . Fisher, 3

F.3d 456, 460 (1st Cir. 1993). Generally, the concern with

8 multiplicitous counts in an indictment is that multiple sentences might result. United States v . Dixon, 921 F.3d 1 9 4 , 196 (8th Cir. 1990); see also Charles Alan Wright, Federal Practice and Procedure § 142 (1982). Whether defendants participated in an overarching conspiracy or in only separate and individual conspiracies is a question of fact, and the question of multiple conspiracies may be addressed by appropriate jury instructions. United States v . Boylan, 898 F.2d 2 3 0 , 243 (1st Cir. 1990). It is also important that jurors not be misled into believing that a defendant is charged with separate offenses when, in fact, the same offense is charged repeatedly. Dixon, 921 F.2d at 196.

Count nine charges McGonagle with participation in a conspiracy to rob an armored car in Hudson in violation of 18 U.S.C.A. § 1951. Count three charges McGonagle with participation in a conspiracy to commit armed robberies in violation of 18 U.S.C.A. § 3 7 1 , including the Hudson robbery as one of the objects of the larger conspiracy. The government asserts that although the most specific allegations in count three describe McGonagle’s involvement in the Hudson robbery and murders, he is also charged with participation in the overall conspiracy to rob a series of banks and armored cars and is specifically charged with providing strategy and advice and a getaway truck. The government acknowledges, however, that the Hudson conspiracy is a lesser-included offense of the overall conspiracy, and if McGonagle were convicted of both, he could be sentenced for only one.

9 Under these circumstances, the offenses, as charged are

clearly separate although related conspiracies and the Hudson

conspiracy is a piece of the larger overall conspiracy. As

charged, the events comprising the two conspiracies are

sufficiently distinct as to time, place, people involved,

statutory basis, and proffered proof to survive a multiplicity

challenge. See Fisher, 3 F.3d at 461. Whether the evidence to

be adduced at trial will comport with the charges i s , of course,

not before the court.

McGonagle charges that count three is duplicitous as it

includes more than one offense in a single count. See United

States v . Valerio, 48 F.3d 5 8 , 63 (1st Cir. 1995). As explained

above, count three charges a single conspiracy to commit a series

of robberies and enumerates the component robberies. As such, it

charges a single conspiracy under 18 U.S.C.A. § 3 7 1 , not several

offenses. McGonagle’s motion to dismiss is denied.

b. Motion to Sever

McGonagle asserts that he was improperly joined in the

indictment with the other defendants and moves for severance.

“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 transactions constituting an offense or offenses.” Fed.

R. Crim. P. 8 ( b ) . As the indictment charges McGonagle with the

same overall conspiracy as the other defendants, he was properly

joined.

10 Asserting his minor role in the charged conspiracies,

McGonagle contends that he would be prejudiced by trial with the

other defendants due to the extensive evidence against them that

would be irrelevant to him. However, because the government

charges McGonagle in the overall conspiracy, the actions of his

alleged coconspirators in furtherance of the conspiracy are

relevant to the case against him as well. United States v .

Flores-Rivera, 56 F.3d 319, 325-26 (1st Cir. 1995). Even if

McGonagle is correct that he was merely a bit player and that

much of the evidence is irrelevant to him, severance is not

required to protect him from possible spillover from evidence

introduced against other defendants. Id.

Accordingly, McGonagle’s motion to sever is denied.

C. Motions to Continue

Defendants John Burke and Anthony Shea move to continue the

trial. John Burke moves in the alternative to sever his case

from the others to be tried at a later time. Burke requests a

continuance until September 1 if all defendants will be tried

together and until July 15 if he is tried separately from the

others. Shea seeks a continuance until July 1 5 . The government

does not object to a continuance as long as no defendants are

severed and tried separately. The other defendants had indicated

that they would object to a continuance of their trial.

Whether or not to grant a continuance of a criminal trial is

left to the trial court’s discretion which is limited by a

defendant’s constitutional rights including his right to

11 assistance of counsel. United States v . Soldevila-Lopez, 17 F.3d 480, 487-88 (1st Cir. 1994). In this case, both John Burke and Anthony Shea assert that the preparation of defenses on their behalf in this complex case will be significantly prejudiced if they were compelled to go forward with trial on March 4 . John Burke was not charged until December, while the other defendants were charged last May. Shea asserts that he has been in three separate federal jury trials since he was indicted in this case which has put time pressure on his counsel for adequate preparation of his defense. Shea also notes that a delay would tend to mitigate any prejudicial effect of the news publicity surrounding the Hudson robbery and murders which occurred in August of 1994.

In the interests of both protecting individual defendants’ rights to adequate representation and to preserve the judicial economy of a single trial where prejudice does not require severance, the motions to continue are granted. John Burke’s motion to sever is denied. The trial is continued to a date to be set which shall be after September 1 , 1997.

CONCLUSION

For the foregoing reasons, Stephen Burke’s motions for a

change of venue (document # 165) and for severance (documents #

185, # 1 8 7 , #188) are denied. Patrick McGonagle’s motions for a

change of venue (document # 197) and to dismiss or for severance

(document # 191) are denied. John Burke’s motion to continue the

12 trial or to sever (document # 252) is granted as to a continuance

but denied as to severance. Anthony Shea’s motion to continue

(document # 262) is granted.

SO ORDERED.

Steven J. McAuliffe United States District Judge January 2 7 , 1997

cc: David A . Vicinanzo, AUSA Peter D. Anderson, Esq. Matthew J. Lahey, Esq. Bruce E . Kenna, Esq. Douglas J. Miller, Esq. Michael J. Iacopino, Esq. Bjorn R. Lange, Esq. David H . Bownes, Esq. United States Marshal United States Probation