United States District Court, Middle District of Pennsylvania
James M. Munley, United States District Court
In the instant criminal matter, the United States of America charges Defendant Rafael Sanchez (hereinafter “defendant”) with forty-two (42) counts regarding the filing of 126 fraudulent tax returns and one (1) count pertaining to the straw purchase of a firearm. Before the court for disposition is defendant’s motion to dismiss the straw purchase of a firearm charge. (Doc. 103). The motion is fully briefed and ripe for disposition.
A Grand Jury in the Middle District of Pennsylvania indicted defendant on June 17, 2014. (Doc. 34). The indictment charges the defendant with: Count 1–conspiracy to defraud the government, 18 U.S.C. § 286; Counts 2 through 11–false, fictitious or fraudulent claims, 18 U.S.C. § 287; Counts 12 through 31–theft of public money, 18 U.S.C. § 641; Counts 32 through 41–aggravated identity theft, 18 U.S.C. § 1028A(a)(1), (c)(1); Count 42–conspiracy to commit wire fraud, 18 U.S.C. § 1349; and Count 43–conspiracy to commit an offense or to defraud the United States, 18 U.S.C. § 371. (Doc. 34).
On September 23, 2014, the United States filed a superseding indictment adding Defendant Wanda Davila-DeJesus to Counts 1 through 42. (Doc. 46). The superseding indictment also amended the conspiracy’s start date contained in Counts 1 and 42 from “January 1, 2011” to “January 1, 2009.” (Id.)
In preparation for trial, defendant filed a motion to dismiss Count 43 of the superseding indictment under Federal Rule of Criminal Procedure 8(a), asserting that the crime charged in Count 43, the alleged firearm purchase, does not relate to, and is not the same as, the fraudulent tax return crimes charged in Counts 1 through 42. (Doc. 103). The parties then briefed the issues, bringing the case to its present posture.
Federal Rule of Criminal Procedure 8(a) permits joinder of offenses charged against a single defendant stating:
The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged-whether felonies or misdemeanors or both-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).
Defendant seeks dismissal of Count 43 of the superseding indictment, the straw purchase of a firearm, contending the government cannot establish Count 43 is connected with the scheme or plan alleged in Counts 1 through 42, the tax and identify theft counts. The government asserts evidence at trial will establish the defendant’s straw purchase of the firearm, forming the basis of Count 43, was made for the defendant to protect his business–an illegal tax refund business generating thousands of dollars in cash. After careful review, the court agrees with the government.
Federal law provides that multiple offenses may be joined when they are: (1) based on the same transaction; (2) connected with or constitute parts of a common scheme or plan; or (3) of the same or similar character. Fed. R. Crim. P. 8(a); see also United States v. Eufrasio, 935 F.2d 553, 570 n.20 (3d Cir. 1991) (noting that the Government may properly join multiple offenses in a single indictment if they “arise out of a common series of acts or transactions”). Stated differently, Rule 8(a) requires a “transactional nexus” between the offenses to be joined. Eufrasio, 935 F.2d at 570 n.20. The movant carries the burden of establishing improper joinder of offenses. United States v. Avila, 610 F.Supp.2d 391, 394 (M.D. Pa. 2009).
To assess misjoinder, the Third Circuit Court of Appeals instructs district courts to focus on the indictment, but the courts “may look beyond the face of the indictment in limited circumstances.” United States v. McGill, 964 F.2d 222, 242 (3d Cir. 1992). Specifically, “[w]here representations made in pretrial documents other than the indictment clarify factual connections between the counts, reference to ...