The opinion of the court was delivered by: (Judge Conner)
Presently before the court are two motions filed by defendant Antonio Avila (hereinafter "defendant" or "Avila"). The first motion (Doc. 951) seeks to sever three counts of the third superceding indictment (Doc. 828) for a separate trial. The second motion (Doc. 952) requests dismissal of one of these counts. For the reasons that follow, both motions will be denied.
The third superceding indictment contains eight counts against various permutations of the ten defendants named therein. Counts 1 and 2 charge all defendants with conspiracy to distribute various controlled substances and with distribution and possession with the intent to distribute cocaine hydrochloride. Avila appears in both of these counts. Count 4 contains a forfeiture charge identifying fourteen articles of property that all defendants allegedly derived from the substantive drug-trafficking offenses.
Counts 5, 7, and 8 allege charges associated with an escape attempt by Avila and co-defendant Fernando Beltran ("Beltran"). Count 5 contains the escape charge, Count 7 advances a wire fraud offense arising from Avila and Beltran's alleged attempt to bribe a prison official, and Count 8 propounds a charge for use of interstate communication facilities in aid of bribery.*fn1
Avila moves to sever Counts 5, 7, and 8 (hereinafter "the escape-related charges") from the offenses appearing in Counts 1, 2, and 4 (hereinafter "the underlying drug offenses"). He also moves to dismiss the wire fraud charge on the ground that it improperly duplicates the escape charge. The parties have fully briefed both motions, which are now ripe for disposition.
Avila advances two grounds for severance. First, he contends that the charges for escape, wire fraud, and use of interstate facilities in aid of bribery were improperly joined with the drug-trafficking, conspiracy, and forfeiture charges. Second, he argues that the court should sever the escape-related 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 individual appearing in a multi-defendant indictment challenges the joinder of the charges against him or her. United States v. Irizarry, 341 F.3d 273, 287 (3d Cir. 2003).*fn2
The government may join multiple offenses in a single indictment if they "arise 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. See Eufrasio, 935 F.2d at 567; United States v. McGill, 964 F.2d 222, 242 (3d Cir. 1992).*fn3
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. Id. 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 his 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 the continuous, foreseeable progression of events related to that conspiracy. Id. at *3. Hence, an escape charge and related offenses may be joined with the drug conspiracy counts from which they spring.
Courts of appeals addressing similar factual scenarios have likewise concluded that the government may charge escape-related crimes alongside underlying offenses if the two are closely related to one another. See, e.g., United States v. Turner, 134 F. App'x 17, 22 (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 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; see also United States v. Thornton, 1 F.3d 149, 152-53 (3d Cir. 1994) (holding that all overt acts performed in furtherance of a conspiracy may be charged in a single indictment regardless of whether all defendants actually participated in each act). The same principles permit joinder of offenses associated with an attempted escape undertaken in furtherance a conspiracy. See, e.g., United States v. Lane, 474 U.S. 438, 447 (1986) (stating that all offenses performed within the ambit of a conspiracy may be charged in a single indictment); Eufrasio, 935 F.2d at 567.
Turning to the instant case, the escape-related charges against Avila are properly joined with the other counts of the indictment. The indictment alleges that Avila and his co-defendants participated in a conspiracy to distribute cocaine hydrochloride, cocaine base, and marijuana. (Doc. 828 at 1; Doc. 960 at 4-5.) Avila and Beltran regularly received wholesale quantities of cocaine hydrochloride on behalf of the conspiracy. (Doc. 960 at 5.) They were arrested on April 22, 2006 after consummating such a transaction with a government informant. (Id.) Under Avila's direction, the ...