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United States v. Espinosa

January 27, 2009

UNITED STATES OF AMERICA
v.
MAXIMO ESPINOSA



The opinion of the court was delivered by: Baylson, J.

MEMORANDUM RE: MOTION TO SEVER COUNTS

Defendant in this case has filed a Motion to sever Count I from Counts II through V of the Indictment, pursuant to Federal Rule of Criminal Procedure 8, or alternatively, Rule 14. For the following reasons, the Court will deny Defendant's Motion to sever.

I. Background and Procedural History

Defendant was first arrested by Detectives Cruz and Boyer of the City of Allentown Bureau of Police on May 18, 2006, at approximately 9:30 p.m, after the Detectives learned that another individual, Irene Irizarry, allegedly brought illegal drugs to the Defendant. (N.T. Pgs. 5-6, 10-11, Feb. 19, 2008 AM). Before Defendant was arrested, the Detectives requested permission to search an apartment, Apartment No. 12 at 709 North 9th Street in Allentown, which they believed belonged to Defendant. Defendant refused to consent to a search of the apartment and stated that his wife, not he, lived at that address. (N.T. Pgs. 13, 67-68, Feb. 19, 2008 AM). However, once Defendant was arrested, Detective Cruz obtained and executed a search warrant for Apartment No. 12 at approximately 1:15 a.m. on May 19, 2006. (N.T. Pgs. 14, 18, Oct. 8, 2008). During the search, the police located additional controlled substances and a firearm inside Apartment No. 12. (N.T. Pg. 17, Feb. 19, 2008 AM).

After examining the evidence obtained during the search of Apartment No. 12, Detective Cruz brought Defendant from the Lehigh County Prison, where he was being held on the conspiracy charge, to the Allentown Police Department, at approximately 9:30 p.m. on May 19, 2006. At that time, Defendant gave both a verbal and written consent to an interview by Detective Cruz, in which Defendant admitted that Apartment No. 12 did belong to him and explained that he did not consent to the search because he knew that heroin was in plain view on the table. (N.T. Pgs. 30-31, 33-34, Oct. 8, 2008). Detective Cruz then filed a second criminal complaint, separate from the original complaint containing the charge for criminal conspiracy to deliver heroin, alleging various possession charges based on the evidence found at the Apartment. Defendant was arraigned on those additional charges at approximately 12:30 a.m. on May 20, 2006. (N.T. Pgs. 25-27, Oct. 8 2008).*fn1

Defendant was charged in a five-count federal indictment for offenses arising from the initial arrest for conspiracy with Ms. Irizarry and from the evidence obtained in the search of the apartment. (Doc. 1). Specifically, the Indictment charged Defendant with the following offenses:

Count 1 Possession with intent to distribute a detectable amount of heroin and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2

Count 2 Possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1)

Count 3 Possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)

Count 4 Simple possession of cocaine, in violation of 18 U.S.C. § 844

Count 5 Possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)

Defendant has previously filed several motions to suppress evidence obtained by the Detectives, (Docs. 24, 25, 64, 88), all of which have been denied, (Docs. 79, 100). Defendant now seeks to have the charge relating to his alleged relationship with Ms. Irizzary (Count I) severed from the remaining charges relating to the evidence obtained from Apartment No. 12 (Counts II-V). Defendant suggests that this Court's prior holding that the offense charged in Count I is not the same as the offenses charged in Counts II-V for Sixth Amendment right to counsel purposes necessarily indicates that the offenses are not sufficiently similar to be joined under Federal Rule of Criminal Procedure 8. Defendant further argues that even if the prior ruling on the Sixth Amendment issue is not dispositive, the joinder of the offenses was improper under Rule 8. In the alternative, Defendant argues that the Court should use its discretion to sever the offenses pursuant to Federal Rule of Criminal Procedure 14.

II. Legal Standards

A. Federal Rule of Criminal ...


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