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United States v. Lopez

April 28, 2009


The opinion of the court was delivered by: (Judge Conner)


Presently before the court is the motion (Doc. 980) of defendant Martin Lopez (hereinafter "defendant" or "Martin")*fn1 to sever all charges against him for a separate trial and to transfer venue in his case to the United States District Court for the Northern District of Illinois. For the reasons that follow, the motion will be denied.

I. Factual Allegations

The third superceding indictment (Doc. 828) contains eight separate 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. Count 4 contains a forfeiture charge identifying fourteen articles of property that all defendants allegedly derived from the substantive drug-trafficking offenses. The remaining counts of the indictment do not affect the above-captioned defendant.

Martin moves to sever all charges against him because his alleged criminal conduct occurred in Chicago, and he has no connection with the Middle District of Pennsylvania. He requests that the court transfer venue to the Northern District of Illinois, where his alleged offenses occurred. The parties have fully briefed this motion, which is now ripe for disposition.

II. Discussion

Martin advances several grounds for severance and transfer. First, he contends that the charges against him were improperly joined with those against his co-defendants. Second, he contends that the court should sever the charges against him notwithstanding the propriety of joinder because he will suffer prejudice if all counts of the indictment proceed to trial simultaneously. Finally, he requests that the court transfer his case to the Northern District of Illinois. The court will address these issues seriatim.

A. Joinder of Offenses

"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 include multiple co-defendants in a single conspiracy charge if the indictment alleges that all co-defendants participated in one overarching scheme. United States v. Eufrasio, 935 F.2d 553, 567 (3d Cir. 1991); see also United States v. Lane, 474 U.S. 438, 448 (1986); United States v. Price, 13 F.3d 711, 718 (3d Cir. 1994). The government is not required to allege that each defendant participated in or knew of every aspect of the conspiracy. Price, 13 F.3d at 718; United States v. Thornton, 1 F.3d 149, 153 (3d Cir. 1994). A conspiracy charge will generally survive a Rule 8(b) challenge if it is accompanied by substantive counts that describe the overt acts performed in furtherance of the scheme. United State v. Serubo, 604 F.2d 807, 819 (3d Cir. 1979) (quoting Somers, 496 F.2d at 730.)

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.*fn2 See Eufrasio, 935 F.2d at 567; United States v. McGill, 964 F.2d 222, 242 (3d Cir. 1992).

Turning to the instant case, the charges against Martin are properly joined with those against his co-defendants. The indictment alleges that Martin participated in a conspiracy to distribute controlled substances and sets forth substantive distribution offenses against all defendants. (Doc. 828 at 1; Doc. 998 at 1-3.) On May 26, 2008, Martin delivered ten kilograms of cocaine to co-defendant Rogelio Lopez ("Rogelio") and non-defendant Luiz Zuniga ("Zuniga") in a Chicago parking lot via a car-switch transaction.*fn3 (Doc. 986 at 7-10; Doc. 998 at 2.) As two nearby police officers watched, Martin swapped vehicles with Rogelio and Zuniga without social formalities. (Doc. 986 at 11-15; Doc. 998 at 2.) The officers conducted an investigatory stop and seized the cocaine. (Doc. 998 at 4.) The government alleges that Rogelio planned to transport the cocaine to central Pennsylvania for distribution by other members of the conspiracy. (Id. at 4-6; Doc. 986 at 131-34.)

Although Martin never entered the Middle District of Pennsylvania, he allegedly aided conspiratorial objectives by delivering cocaine to Rogelio. The large quantity of cocaine indicates that Martin knew of Rogelio's distribution activities, and his lack of knowledge regarding the ultimate destination of the cocaine does not vitiate his intent to participate in the conspiracy. See United States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999) ("The government need not prove that each defendant knew all of the conspiracy's details, goals, ...

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