Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Cook

United States District Court, M.D. Pennsylvania

April 30, 2018

UNITED STATES OF AMERICA
v.
MARK COOK, Defendant

          MEMORANDUM

          JAMES M. MUNLEY, United States District Judge

         Before the court for disposition is Defendant Mark Cook's motion to sever offenses. (Doc. 112). Having been fully briefed, the matter is ripe for disposition.

         Background

         On December 20, 2016, the United States charged Defendant Mark Cook in a superseding indictment with conspiracy to commit sex trafficking by force, fraud and coercion, in violation of 18 U.S.C. § 1594(c); several counts of sex trafficking and attempted sex trafficking by force, fraud and coercion, in violation of 18 U.S.C. § 1591(a) and (b)(1); possession with the intent to distribute various controlled substances, in violation of 21 U.S.C. § 841(a)(1); conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846; wire fraud, in violation of 18 U.S.C. § 1343; and attempted witness tampering, in violation of 18 U.S.C. § 1512(b)(1). On October 31, 2017, a grand jury returned a second superseding indictment against the defendant, which added an additional count of sex trafficking by force, fraud, or coercion.

         The defendant filed the pending motion to sever offenses on December 21, 2017. (Doc. 112). The government responded in opposition to this motion on January 25, 2018, bringing the motion to its present posture.

         Discussion

         The defendant moves the court to sever two (2) counts from the eleven (11) count indictment. First, the defendant argues that the Count 11 charge of wire fraud should be severed, as it is not related in any way to the other counts. He argues that he would suffer prejudice should the wire fraud count be tried with the other counts because the jury would likely use evidence of the wire fraud and implications of dishonesty to infer guilt on all counts. Second, the defendant argues that the court should sever the Count 9[1] charge of conspiracy to distribute and possess with the intent to distribute cocaine from the remaining charges. The defendant contends that Count 9 is duplicitous with Count 8, which charges the defendant with possession with the intent to distribute heroin, “molly, ” and cocaine.

         I. Joinder of Offenses

         As noted above, the indictment charges the defendant with eleven (11) counts. We will first address whether the Count 11 charge of wire fraud and the Count 9 charge of drug distribution were properly joined at the onset with the remaining counts which involve drug conspiracy and delivery, sex trafficking, and witness intimidation.

         Rule 8 of the Federal Rules of Criminal Procedure provides that a defendant may be charged in separate counts with more than one offense if the offenses charged “are of the same or similar character, or a based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.” This means that there must be a “transactional nexus” between the joined offenses. U.S. v. Sanchez, No. 3:14cr148, 2015 WL 1322260, at *1 (M.D. Pa. March 24, 2015). So long as such a relationship exists, our courts generally favor initial joinder. See United States v. Stevens, 188 F.Supp.3d 421 (M.D. Pa. 2016); United States v. Brooks, Crim. No. 07-705, 2009 WL 116967, at *2 (E.D. Pa. Jan 15, 2009); United States v. Kemp, Crim. No. A.04-370, 2004 WL 2757867, at *3 (E.D. Pa. Dec. 2, 2004).

         The defendant seeking severance bears the burden of establishing improper joinder. United States v. Avila, 610 F.Supp.2d 391, 394 (M.D. Pa. 2009). In deciding whether charges have been misjoined, the Third Circuit has instructed district courts to heavily rely on the indictment. U.S. v. McGill, 964 F.2d 222, 242 (3d Cir. 1992). Where representations made in pretrial documents other than the indictment clarify factual connections between the counts, however, reference to those documents is permitted. Id.

         First, we find that the Count 11 charge of wire fraud was properly joined. Although on its face, the indictment simply alleges that the defendant staged a vehicle accident by instructing another person to deliberately drive a U-Haul truck into another vehicle, a review of the government's brief in opposition to the motion to sever (Doc. 118) reveals that this count is sufficiently related to the sex trafficking and drug charges. The government alleges that during the time period of the sex trafficking conspiracy and in connection with sex trafficking activity, the defendant allowed his prostitutes to use a 2004 Lexus vehicle to travel for sexual encounters. (Id. at 8). That same vehicle belonged to the defendant's mother and, according to the government, was frequently used by the defendant for the purposes of prostitution during the conspiracy as well as for drug trafficking. The wire fraud charge stems from a specific incident in which one of the female prostitutes working for the defendant damaged the Lexus in a one-car accident when returning from a sexual encounter. (Id.) Upon learning of the damage, the defendant allegedly instructed two other female prostitutes that worked for him to stage an “accident” and cause more damage to the Lexus. (Id.) The defendant then then reported the damage to an insurance company, according to the government. (Id. at 9). We find that these allegations demonstrate a sufficient transactional nexus between the wire fraud charge and the sex trafficking and drug charges.

         We also find that Count 9, conspiracy to distribute and possession with the intent to distribute cocaine, is properly joined under Rule 8. The government alleges that this activity took place from February of 2015 until April of 2015 in Pike and Lackawanna Counties. As noted above, the defendant argues that this count is duplicitous with Count 8, which charges the defendant with possession with the intent to distribute a heroin, “molly, ” and cocaine from October of 2014 until September of 2016 in Luzerne and Lackawanna Counties. The defendant alleges that Counts 8 and 9 may subject him to double prosecution for the same charge. We disagree with the defendant.

         An indictment is duplicitous where it combines two or more distinct and separate offenses in a single count. United States v. Rigas, 605 F.3d 194, 210 (3d Cir. 2010); United States v. Haddy, 134 F.3d 542, 548 (3d Cir. 1998). A review of the defendant's motion suggests that the defendant is not actually alleging duplicity; rather, the defendant seems to be arguing that the indictment is multiplicitous. A multiplicitous indictment charges a single offense in different counts, thereby potentially subjecting a defendant to double punishments for the same offense. Haddy, 134 F.3d at 548; United States v. Carter, 576 F.2d 1061, 1064 (3d Cir. 1978). ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.