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United States v. Torner

United States District Court, M.D. Pennsylvania

July 24, 2018

UNITED STATES OF AMERICA
v.
ROBERTO TORNER, LIZA ROBLES, and DAVID ALZUGARAY-LUGONES Defendants

          MEMORANDUM

          MALACHY E. MANNION UNITED STATES DISTRICT JUDGE

         Before the court are the pre-trial motions for a severance of offenses and for a severance from his co-defendants, David Alzugaray-Lugones and Liza Robles, under Fed.R.Crim.P. 8 and 14, (Doc. 112), filed, through counsel, by defendant Roberto Torner.[1] Torner also moves to bifurcate or for a severance of Counts 3, 4, 5 and 8 based on the felon in possession of a firearm element in those counts. Further, Torner filed a motion in limine to preclude the government from introducing certain evidence of alleged prior bad acts in which he may have been involved.

         Also before the court are the pre-trial motions for a severance of counts, (Doc. 114), and for a severance from the co-defendants under Fed.R.Crim.P. 8 and 14, (Doc. 116), filed, through counsel, by defendant Liza Robles. Robles moves to have the two drug charges filed against her severed from the two firearms charges against her alleging that the charges bear no connection. Robles also seeks the court to conduct a separate trial for her from her two co-defendants, David Alzugaray-Lugones and Roberto Torner. Robles states that since one of the counts charged against her in the Indictment is that she conspired with co-defendants to distribute heroin, in violation of 21 U.S.C. §846, she will be prejudiced if her trial is not severed from her co-defendants because the jury will have difficulty separating her alleged acts from the alleged acts of her co-defendants. Robles also joined in Torner's motion in limine. For the reasons set forth below, the court will DENY Torner's and Robles' motions for severance of offenses and motions for a severance of the trial. The court will also DENY Torner's motion to bifurcate or for a severance of Counts 3, 4, 5 and 8. Further, the court will GRANT IN PART and DENY IN PART Torner's and Robles' motions in limine to preclude the introduction of certain evidence at trial.

         I. BACKGROUND

         A. Torner

         By way of relevant background, on November 7, 2017, Torner was indicted with the two stated co-defendants and charged by a grand jury in an Indictment. (Doc. 18). On January 30, 2018, Torner was charged in a First Superseding Indictment (“FSI”) with the following offenses: Count 1, conspiracy to distribute and possession with intent to distribute heroin, in violation of 21 U.S.C. §846; Count 2, distribution and possession with intent to distribute heroin, in violation of 21 U.S.C. §841(a)(1) and (b)(1)(C); Count 3, firearms conspiracy to commit the offense of felon in possession of a firearm, in violation of 21 U.S.C. §371; Count 5, felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §922(g)(1); Count 7, possession of stolen explosives, in violation of 18 U.S.C. §842(h) and §3147(1); and Count 8, possession of explosives by a felon, in violation of 18 U.S.C. §842(j) and §3147(1). (Doc. 61).

         On February 6, 2018, Torner was arraigned and pled not guilty to all of the charges against him in the FSI. (Doc. 68).

         On June 14, 2018, Torner filed his multiple pre-trial motions. (Doc. 112). Torner simultaneously filed his brief in support of his motions. (Doc. 113).

         B. Robles

         On November 7, 2017, Robles was indicted with the two stated co-defendants and charged by a grand jury in an Indictment. (Doc. 18). Robles was charged with conspiracy to distribute and possession with intent to distribute heroin, in violation of 21 U.S.C. §846, distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. §841(a)(1), conspiracy to commit the offense of felon in possession of a firearm, in violation of 21 U.S.C. §371, and transfer of firearms and ammunition to a prohibited person, namely, Torner, Robles' “fiancé” and father of her four children, in violation of 21 U.S.C. §922(d)(1).

         On January 30, 2018, Robles was charged with the stated four offenses in the FSI. (Doc. 61).

         On February 6, 2018, Robles was arraigned and pled not guilty to all of the charges against her in the FSI. (Doc. 68).

         On June 14, 2018, Robles filed four pre-trial motions, including her instant motions for a severance of counts, (Doc. 114), and for a severance from the co-defendants, (Doc. 116). Robles simultaneously filed her briefs in support of her motions. (Docs. 115 & 117).

         After being granted an extension of time, the government filed its brief in opposition to Torner's and Robles' motions on July 6, 2018. (Docs. 145). Robles filed her reply brief on July 20, 2018. (Doc.154).

         The trial in this case is scheduled to commence for all three defendants on September 10, 2018.

         The court will now address Torner's and Robles' motions seriatim.[2]

         II. LEGAL STANDARD

         The purposes of Rules 8(b) and 14 are “to promote economy and efficiency and to avoid a multiplicity of trials, [so long as] these objectives can be achieved without substantial prejudice to the right of the defendants to a fair trial.” Bruton v. United States, 391 U.S. 123, 131 n. 6, 88 S.Ct. 1620 (1968). Federal Rule of Criminal Procedure 8 addresses the joinder of offenses and defendants and provides:

(a) Joinder of Offenses. 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.
(b) Joinder of Defendants. The 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.

         The court in U.S. v. Adens, 2015 WL 894205, *1 (E.D.Pa. Feb. 27, 2015), explained Rule 8 as follows:

When multiple defendants are charged in a single case, as here, Rule 8(b) governs both the proper joinder of defendants and the proper joinder of offenses. See United States v. Irizarry, 341 F.3d 273, 287 (3d Cir. 2003). Rule 8(b) does not expressly allow the joinder in a single indictment of acts that are “of the same or similar character” as does Rule 8(a), see Id. at 287 n. 4, but Rule 8(b)'s terms are broadly construed so that a “transactional nexus, ” see Id. at 241, or a logical relationship between charges, is all that is required for them to be considered part of the same “transaction.” See United States v. Hills, No. 08-654-1, 2009 WL 2461735 (E.D.Pa. Aug.10, 2009). To determine whether there is a logical relationship between charges, trial judges may look at pre-trial documents, including but not limited to the indictment. See United States v. McGill, 964 F.2d 222, 242 (3d Cir.1992).

         Thus, there is not a misjoinder under Rule 8 if “the temporal proximity of and substantive similarities between the [two sets of charges] render them sufficiently related as to have the ‘transactional nexus' required for joinder.” Adens, 2015 WL 894205, *3; see also United States v. Jones, 2016 WL 3067010, *26 (W.D.Pa. June 1, 2017) (“Rule 8 authorizes joinder of charges if they are of a similar character, are based on the same act or transaction, or are part of a common scheme.”).

         However, [i]f joinder is improper under Rule 8, the Court must order separate trials.” Adens, 2015 WL 894205, at *2 (citing United States v. Walker, 657 F.3d 160, 170 (3d Cir. 2011) (“Rule 8 requires severance where defendants were improperly joined.”). Even if defendants are properly joined under Rule 8, “the Court may sever defendants or offenses under Rule 14 ‘[i]f it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together.'” Id. (citing Fed.R.Crim.P. 14). Further, “a district court should grant a 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.” Id. (quoting Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933 (1993)).

         There is a “heavy” burden on the defendant to show “clear and substantial prejudice resulting in a manifestly unfair trial.” Id. (quoting United States v. Eufrasio, 935 F.2d 553, 568 (3d Cir. 1991)). Additionally, “[e]ven when the risk of prejudice is high, less drastic measures than severance (such as limiting instructions) ‘often will suffice to cure any risk of prejudice.'” Id. (quoting Zafiro, 506 U.S. at 539). As such, “the appropriate question for the Court on a motion under Rule 14 is whether the jury can ‘reasonably be expected to compartmentalize the evidence as it relates to the separate defendants in view of its volume and limited admissibility.'” Id. (quoting United States v. Serubo, 460 F.Supp. 689, 694 (E.D.Pa. 1978)); see also Jones, 2016 WL 3067010, *26 (“Rule 14 provides the court discretion to order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires, if joinder of offenses appears to prejudice either the defendant or the government.”) (citations omitted).

         The motions in limine are mainly filed pursuant to Fed.R.Evid. 404(b) and 609(a)(1)(B). The motion also seeks, in part, to exclude evidence as irrelevant. It is axiomatic that “irrelevant evidence is not admissible.” Fed.R.Evid. 402. Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and if “the fact is of consequence in determining the action.” Fed.R.Evid. 401. Even if evidence is relevant, the court can exclude it if “its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403.

         Federal Rule of Evidence 404(b) precludes the admission of other crimes, wrongs, or acts “to prove the character of a person in order to show conformity therewith”. However, under Rule 404(b), such evidence is admissible for legitimate evidentiary purposes such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.”

         Federal Rule of Evidence 609 pertains to the use of prior convictions for impeachment purposes and provides:

The following rules apply to attacking a witness's character for truthfulness by evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:
(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant[.]

Fed.R.Evid. 609(a)(1)(B).

         III. DISCUSSION

         1. Motion for Severance of Offenses

         A. Torner

         Torner states that the FSI charges him with three separate sets of offenses, namely, drug offenses, firearm offenses and explosives offenses. He contends that joinder of these three categories offenses in the FSI is improper under Rule 8 because the offenses are not of the same of similar character, are not based on the same act or transaction, and are not connected with or constitute parts of a common scheme or plan. Specifically, Torner argues that the drug offenses allege a six day conspiracy and one delivery of heroin all of which transpired in June 2015. He states that the firearms offenses all stem from Robles' alleged unlawful purchase and transfer of firearms to him and that these firearms offenses have nothing to do with the drug offenses charged against him. Further, Torner contends that the explosives offenses are completely unrelated to either the drug offenses and firearms ...


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