The opinion of the court was delivered by: SHAPIRO
SHAPIRO, UNITED STATES DISTRICT JUDGE.
Defendant, Joseph P. Braig, was charged with ten (10) counts of mail fraud in violation of 18 U.S.C. § 1341 (one count of aiding and abetting in violation of 18 U.S.C. § 2) and one count of extortion, in violation of the Hobbs Act, 18 U.S.C. § 1951.
The indictment involves two events: 1) an insurance claim made by the defendant in August, 1983 for wind and water damages at his residence allegedly for work not performed or for costs less than that claimed; 2) a Hobbs Act extortion occurring allegedly on December 18, 1985, when defendant, at that time a judge of the Court of Common Pleas of Philadelphia County, received $ 500 from the business manager of the Roofers' Union in order to influence him in the conduct of his office.
Defendant moves for severance of the mail fraud counts from the Hobbs Act extortion count pursuant to Fed.R.Crim.P. 8 and 14. The government claims that the joinder was proper under Fed.R.Crim.P. 8 because in both offenses, the defendant's abuse of his official position as a judge and his exploitation of union contacts feature prominently. Furthermore, the government argues that defendant is not entitled to severance under Fed.R.Crim.P. 14 because the jury will be able to compartmentalize evidence relating to the separate offenses so that the defendant cannot meet his burden of articulating specific prejudice from a single trial.
The government concedes the defendant's argument and request is facially attractive; the court concludes it is also legally correct. Therefore, defendant's motion for severance will be granted and the mail fraud counts tried first in accordance with the government's request at oral argument.
Federal Rule of Criminal Procedure 8(a) states that:
Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
The offenses differ in time, victim, nature of the offense and facts involved. In one, the essence of the offense is use of the mails by anyone, public official or not. Defendant was a judge at the time he is alleged to have used the mails to claim insurance recompense for work not performed or for an amount in excess of the cost of repair; if proved, this is a crime whether or not the government can establish use of judicial office, powers or ability to obtain improper payments.
If the mere fact that the offenses were allegedly committed by the same person were a sufficient reason for joinder, there would be no such thing as an improper joinder and Rule 8 would be meaningless.
The government relies heavily on United States v. Rabbitt, 583 F.2d 1014 (8th Cir. 1978), where it was held that mail fraud and Hobbs Act offenses against a state legislator were properly joined under Rule 8(a). In Rabbitt, defendant, the Speaker of the House, was charged with mail fraud for accepting a payoff to assist car dealers in getting certain legislation passed and Hobbs Act offenses for attempting to extort money from truckers, to get other legislation passed, and from an architectural firm, to steer state contracts to them. It was held that these charges were properly joined under Rule 8 and that denial of severance under Rule 14 was not an abuse of discretion. But all of these offenses stemmed from misconduct while defendant was a state legislator and involved a common plan to use his power, authority and influence as the Speaker of the House to influence legislation or the award of state contracts. Here only the Hobbs Act count allegedly involved the direct misuse of defendant Braig's own judicial power to obtain favored treatment for the Roofers' Union; the mail fraud counts involved alleged misrepresentation of amounts charged by contractors or not charged by them, perhaps in some instances indirectly because of contacts with unions other than the Roofers' Union, to obtain favorable treatment for the judge himself.
Defendant moves for severance under Fed.R.Crim.P. 14 providing that:
If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial. (Emphasis supplied).