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United States v. Weiner

July 2, 2009

UNITED STATES OF AMERICA
v.
IRA WEINER, D.O.



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

MEMORANDUM

Presently before the Court are Defendant Ira Weiner's (1) Motion for Severance of Defendants under Rule 8 and/or Rule 14, (2) Motion in Limine for Exclusion of Statements of Habeeb Malik under Bruton v. United States, and (3) Motion in Limine to Exclude Testimonial Out-of-Court Statements of Co-Defendants under Crawford v. United States. (Doc. No. 42.) For the following reasons, the Motions will be denied.

I. BACKGROUND*fn1

Ira Weiner, D.O. ("Defendant"), is an osteopathic physician and surgeon who has been indicted on charges of naturalization fraud and conspiracy to commit naturalization fraud. (See Indictment, Doc. No. 1.) The charges arose out of an alleged scheme with co-defendants Habeeb Malik ("Malik"), a businessman, and Thongchai Vorasingha ("Vorasingha"), a physician. The Indictment alleges that from 2000 through 2005, Malik operated a business out of his basement known as the Foundation of Human Services ("the Foundation"). The purpose of the Foundation was to assist foreign individuals in obtaining United States citizenship. The foreign individuals who sought the Foundation's services had difficulty reading and writing English. (Id. ¶ 8.) Foreign individuals must be able to speak, read, and write basic English to be eligible for United States citizenship. (Id. ¶ 5.) Those who are unable to meet this requirement because of a physical or mental impairment can apply for a waiver. (Id.)

For a $2,000 fee, Malik sent the foreign individuals to Defendant and Vorasingha for "examinations" to determine if they qualified for a waiver. (Id. ¶ 9.) It is alleged that Defendant's "examination" consisted of talking with the foreign individuals for approximately three minutes and talking privately with Malik for approximately ten minutes. (Id. ¶ 10.) Similarly, Vorasingha's "examination" consisted of drafting a written questionnaire that asked "if the applicant would agree if . . . Vorasingha diagnosed him or her with mild retardation." (Id. ¶ 11.) Vorasingha diagnosed the applicants based on the written answers. (Id.) Malik paid Defendant and Vorasingha $120 for each "examination." (Id. ¶ 9.)

After the examinations, Defendant and Vorasingha completed waiver forms stating that the individuals suffered from various maladies that included learning disorders, depression, anxiety, post traumatic stress disorder resulting from the hostilities overseas, and mental retardation that impaired their ability to learn English. (Id. ¶ 12.). Nevertheless, the individuals did not actually suffer from these maladies. (Id.) As a result of the conspiracy, the individuals applied for United States citizenship through this waiver for which they did not really qualify. (Id. ¶ 13.)

Count One of the Indictment alleges a single conspiracy among the three defendants as follows:

From in or about a date unknown to the grand jury, beginning at least in or about 2000 through in or about July 2005, in the Eastern District of Pennsylvania, and elsewhere, defendants HABEEB MALIK, IRA WEINER, and THONGCHAI VORASINGHA conspired and agreed, together and with others known and unknown to the grand jury, to commit an offense against the United States, that is, to procure and obtain, contrary to law, naturalization as a United States citizen for foreign individuals by making false statements on the Form N-648, including statements that the applicants suffered from various impairments that made it impossible for them to learn and understand the English language, in an effort to obtain waivers of the language requirement on the Form N-400 for the foreign applicants, in violation of Title 18, United States Code, Section 1425. (Id. ¶ 7.)

The Indictment recites the overt acts that underlie the alleged conspiracy that include the Defendant signing waivers on nine occasions in 2002 and 2003 that falsely stated the grounds for a medical waiver of the English requirement. (Id. ¶¶ 1-18.) In 2005, Vorasingha signed such waivers on two occasions. (Id. ¶¶ 19-22.) Defendant and Vorasingha are charged under separate, individual counts for each substantive violation of naturalization fraud. The Indictment includes a single conspiracy charge against Malik, Defendant, and Vorasingha.

Defendant has filed the instant Motion asserting that Defendant has been improperly joined with Vorasingha and that a severance is required. (See Doc. No. 42 at 3.) Defendant has also filed two related motions in limine seeking to exclude certain statements made by his co-defendants. (See id. at 6-8.)

II. LEGAL STANDARD

Federal Rule of Criminal Procedure 8(b) provides that an indictment or information may charge 2 or more defendants if they 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. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count.

Fed. R. Crim. P. 8(b). The Third Circuit has interpreted Rule 8(b) as permitting "joinder of defendants charged with participating in the same . . . conspiracy, even when different defendants are charged with different acts, so long as indictments indicate all the acts charged against each joined defendant (even separately charged substantive counts) are charged . . . as acts undertaken in furtherance of, or in association with, a commonly charged . . . conspiracy." United States v. Eufrasio, 935 F.2d 553, 567 (3d Cir. 1991), cert. denied, 502 U.S. 925 (1991). The Third Circuit and Second Circuit agree that "[t]he mere allegation of a conspiracy presumptively satisfies Rule 8(b), since the allegation implies that the defendants named have engaged in the same series of acts or transactions constituting an offense." United States v. Irizarry, 341 F.3d 273, 289 n.5 (3d Cir. 2003) (quoting United States v. Friedman, 854 F.2d 535 (2d Cir. 1988)), cert. denied, 540 U.S. 1140 (2004).

When an indictment charges two or more defendants together, Federal Rule of Criminal Procedure 14(a) permits a court to sever the defendants' trials if "the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government." Fed. R. Crim. P. 14(a). When the defendants have been properly joined under Rule 8(b), "a district court should grant severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." United States v. Voigt, 89 F.3d 1050, 1094 (3d Cir. 1996) (quoting Zafiro v. United States, 506 U.S. 534, 539 (1993)), cert. denied, 519 U.S. 1047 (1996). In evaluating the risk of prejudice, courts must consider "the facts in each case." Zafiro, 506 U.S. at 539. "When the risk of ...


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