The opinion of the court was delivered by: Judge Conner
Presently before the court is the motion (Doc. 769) of defendant Fernando Beltran (hereinafter "defendant" or "defendant Beltran") to sever two counts of the second superceding indictment (Doc. 602) for a separate trial. For the reasons that follow, the motion will be denied.
The second superceding indictment contains five separate counts against various permutations of the eleven defendants named therein. Count 1 charges all defendants with criminal conspiracy to distribute various controlled substances, and Count 2 charges ten defendants with distribution and possession with the intent to distribute cocaine hydrochloride. Defendant Beltran appears in both of these counts. Count 4 contains a forfeiture charge identifying twenty-two separate articles of property that all defendants allegedly derived from the substantive drug trafficking offenses. Paragraphs 21 and 22 of this count identify approximately $44,000 associated with defendant Beltran, which was seized from a Harrisburg, Pennsylvania post office box in late 2007.*fn1 Count 5 charges defendant Beltran and co-defendant Antonio Avila ("defendant Avila") with escape from the Perry County Prison, where they were placed in pretrial detention after their arrest for the drug offenses.*fn2 Defendant Beltran moves to sever the forfeiture charge for the $44,000 and the escape charge from the remaining counts of the indictment. The parties have fully briefed the motion, which is now ripe for disposition.
Defendant Beltran advances two grounds for severance. First, he contends that the forfeiture and escape charges were improperly joined with the drug trafficking and conspiracy charges in Counts 1 and 2 (hereinafter "the underlying drug offenses"). Second, he contends that the court should sever the charges notwithstanding the propriety of joinder because he will suffer prejudice if all counts of the indictment proceed to trial simultaneously. The court will address these issues seriatim.
"There is a preference in the federal system for joint trial of defendants who are indicted together." Zafiro v. United States, 506 U.S. 534, 537 (1993). Rule 8 of the Federal Rules of Criminal Procedure reflects this liberal joinder policy, allowing the government to advance multiple charges against multiple defendants in a single indictment. United States v. Brown, No. 1:CR02-146-02, 2002 WL 32739530, at *3 (M.D. Pa. Dec. 17, 2002) (quoting United States v. Bullock, 71 F.3d 171, 174 (5th Cir. 1995)) ("Joinder of charges is the rule rather than the exception[,] and Rule 8 is construed liberally in favor of initial joinder."). Rule 8(a) permits joinder of several counts against a single defendant if the counts "are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan." FED. R. CRIM. P. 8(a). Similarly,
Rule 8(b) authorizes joinder of multiple defendants who "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." FED. R. CRIM. P. 8(b). Rule 8(b) provides the applicable standard when one defendant of many named in an indictment challenges the joinder of the charges against him or her. United States v. Irizarry, 341 F.3d 273, 287 (3d Cir. 2003) ("Rule 8(a) 'dealing with the joinder of offenses, applies only to prosecutions involving a single defendant[,]' and . . . in a multi-defendant case . . . 'the tests for joinder of counts and defendants is [sic] merged in Rule 8(b).'" (quoting United States v. Somers, 496 F.2d 723, 729 n.8 (3d Cir. 1974))).
The government may join multiple charged offenses if they share a factual nexus "aris[ing] out of a common series of acts or transactions." United States v. Brown, No. Crim. A. 07-0296, 2008 WL 161146, at *4 (E.D. Pa. Jan. 16, 2008) (citing United States v. Eufrasio, 935 F.2d 553 570 (3d Cir. 1991)); see also United States v. Gorecki, 813 F.2d 40, 41-42 (3d Cir. 1987). The movant bears the burden of establishing improper joinder. Brown,, 2002 WL 32739530, at *3; see also United States v. DeLuca, 137 F.3d 24, 36 n.12 (1st Cir. 1998). A court addressing the propriety of joinder may consider the contents of the indictment, representations set forth in pretrial filings, and any offers of proof submitted by the government.*fn3
See Eufrasio, 935 F.2d at 567; United States v. McGill, 964 F.2d 222, 242 (3d Cir. 1992).
Under these principles, this court has upheld joinder of an escape charge with another offense that is "a logical predicate to [the] alleged escape, and the escape, in turn, the culminating act 'in the same series of acts.'" United States v. Walker, No. 1:07-CR-00263, 2008 WL 2247136, at *3 (M.D. Pa. May 30, 2008) (quoting FED. R. CIV. P. 8(b)). In United States v. Walker, law enforcement officials apprehended two co-defendants on drug possession and conspiracy charges common to both of them. 2008 WL 2247136, at *1. One of the defendants escaped custody and was subsequently arrested and charged with additional drug offenses committed during his flight from prosecution. Id. The government obtained one indictment setting forth all charges, and the non-escapee defendant moved to sever the escape and drug offenses unique to the co-defendant. Id. The court denied the motion, concluding that the actions of both defendants furthered a single drug conspiracy and that the escape resulted from a single, continuous progression of events related to that conspiracy. Id. at 3. Hence, an escape offense may be joined with the drug conspiracy charges from which it springs.
Courts of appeals that have confronted similar factual scenarios have likewise concluded that the government may join escape charges with underlying offenses if the two are closely related to one another. See, e.g., United States v. Turner, 134 F. App'x 17 (6th Cir. 2005) ("It is well established that a charge of escape or bail jumping and the underlying substantive offense are sufficiently connected to permit joinder under [Rule] 8(a)."). This nexus depends upon the temporal proximity between the two offenses, whether the defendant escaped to evade prosecution for the underlying offense, and whether the defendant was in custody for the underlying offense at the time of the flight. See, e.g., United States v. Coyazo, No. 98-5117, 1999 WL 999707, at *2 (10th Cir. Nov. 4, 1999) (concluding that an escape offense may be joined with an underlying offense if the two charges are "related in time, the motive for the flight was avoidance of prosecution, and the defendant's custody stemmed directly from the underlying substantive charges"); United States v. Gabay, 923 F.2d 1536, 1540 (11th Cir. 1991) (holding same with respect to bond jumping); United States v. Peoples, 748 F.2d 934, 936 (4th Cir. 1981) (same). Moreover, if the defendant allegedly escaped in furtherance an overarching conspiracy, the existence of the conspiracy warrants joinder of the escape with the associated offenses. Walker, 2008 WL 2247136, at *4; United States v. Thornton, 1 F.3d 149, 152-53 (3d Cir. 1994) (holding that all alleged acts performed in furtherance of a conspiracy may be charged in a single indictment regardless of whether all defendants actually participated in each act).
Turning to the instant case, the escape and forfeiture charges against defendant Beltran are properly joined with the other counts of the indictment. The indictment alleges that defendant Beltran and his co-defendants participated in a conspiracy to distribute cocaine hydrochloride, cocaine base, and marijuana. (Doc. 602 at 1; Doc. 824 at 4-5.) In furtherance of the conspiracy, defendants Beltran and Avila often received large shipments of cocaine hydrochloride, which they distributed to other members of the conspiracy. (Doc. 824 at 5.) Such a transaction occurred under the clandestine surveillance of law enforcement ...