The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
Clinton Van Berry and his wife, Nadine Homick-Van Berry, have
been charged together in a four count indictment ("Indictment")
with (a) conspiracy and attempt to obstruct commerce through
robbery (Counts 1 and 2); and (b) bribery and conspiracy to
commit bribery concerning a federally funded program (Counts 3 and 4). The issue presented here is whether a
single trial before one jury would afford them each a fair trial.
For the following reasons, the Court concludes that it would not
Counts 1 and 2 must be severed from Counts 3 and 4.*fn1
The following events have given rise to the charged counts.
A. Bribery and Conspiracy to Commit Bribery Counts 3 & 4
1. 2002 West Cape May Sewer Replacement Program
According to the Indictment and the brief of the Government, on
or about April 17, 2002, the Borough of West Cape May, New Jersey
("West Cape May" or the "Borough") awarded a sewer contract for
the Borough's 2002 Sewer Replacement Program ("Sewer Replacement
Project"). The Sewer Replacement Project was designed to replace
the deteriorating terra cotta sewer pipes on five streets from
Broadway to Park Boulevard. The events preceding the award of
that contract are what the Court is concerned with here. Roughly six months before the Borough awarded the Sewer
Placement Project contract, Mrs. Van Berry allegedly approached a
longtime acquaintance, a contractor who owned an excavating and
contracting business that, in part, installed sewer drainage and
water mains ("Contractor"). She allegedly informed him that she
would be able to provide him with the Engineer's Estimate of
Construction Costs for the Borough's Sewer Replacement Program
("Engineer's Estimate").*fn2 In turn, Mrs. Van Berry
allegedly demanded that in the event the Contractor successfully
bid on the project, he would share a percentage of his contract.
Unbeknown to Mrs. Van Berry at the time, the Contractor was an
Subsequently, in the Fall of 2001, Mr. Van Berry allegedly
approached the Mayor of West Cape May. Mr. Van Berry and the
Mayor were acquainted with one another through Mr. Van Berry's
previous employment with the Borough of West Cape May. At the
time of the meeting, Mr. Van Berry was employed by the City of
Atlantic City, New Jersey as the Assistant Municipal Tax
Collector. In that capacity, Mr. Van Berry was responsible for
handling the daily receipts of the tax office and preparing them for deposit to the bank.
During the meeting with the Mayor, Mr. Van Berry allegedly
suggested that if the Mayor assisted him in obtaining the
Engineer's Estimate, there would be an "envelope" in the mail.
Feeling that he was being bribed, the Mayor contacted the Federal
Bureau of Investigation ("F.B.I."). According to the Indictment,
from October 2001 to April 4, 2002 (shortly before the Borough
awarded the contract), Defendants allegedly continually attempted
to bribe the Mayor for the Engineer's Estimate for the Sewer
Replacement Project. Moreover, they allegedly exerted force on
the Contractor to bid on the project. However, because the
Contractor was unable to obtain a performance bond, he never
submitted a bid.
2. 2003 West Cape May Sanitary Sewer and Water Main
In January of 2002, West Cape May began efforts to obtain
funding for its Sanitary Sewer and Water Main Improvement
Program, a project designed to replace the sanitary sewer line
from Learning Avenue to Broadway ("Sewer and Water Main
Project").*fn3 According to the Indictment, Mr. Van Berry
offered the Mayor a bribe in exchange for the Engineer's Estimate
for this project. Defendants then allegedly sought a percentage
of the contract from the Contractor in the event that the Contractor
made a successful bid.
On July 25, 2003, the Contractor allegedly gave Mrs. Van Berry
$2,000 in cash to give to the Mayor. According to the Indictment,
on August 1, 2003 Defendants gave $500 to the Mayor, informing
him that the Contractor had only given them that amount.
Meanwhile, Mrs. Van Berry told the Contractor that she and her
husband had given the full $2,000 to the Mayor. The following
day, the Mayor informed Mrs. Van Berry that he would not provide
her with the Engineer's Estimate for $500. On August 8, 2003,
Mrs. Van Berry met with the Mayor, allegedly to persuade him
otherwise. He refused and, on August 11, 2003, she allegedly
demanded that he return the $500.
B. Atlantic City Robbery Counts 1 & 2
Later that year, on December 1, 2003, Mrs. Van Berry again
allegedly solicited the Contractor to participate in criminal
conduct. This time, however, the plot had nothing to do with
bribing the Mayor of West Cape May. This plan involved robbing a
courier who would be carrying the proceeds from a tax sale
conducted by the Tax Collector of the City of Atlantic City.
As with most municipalities, the residents and businesses
located within Atlantic City are required to pay real estate
taxes on a quarterly basis. The taxpayers typically pay this tax
in cash or with money orders or checks made payable to Atlantic
City. Those payments are submitted directly to the tax office in
City Hall. If, however, a property owner fails to make a timely
payment, Atlantic City will issue a tax sale notice advising that, unless the taxes are paid by the date of
the sale, the property will be sold and the proceeds used to pay
the delinquent amount. Following the sale, the City utilizes the
services of a courier to deliver the tax receipts to its
depository bank located a few blocks from City Hall. As the
Assistant Municipal Tax Collector of Atlantic City, Mr. Van Berry
was intimately familiar with the details surrounding such tax
According to the Indictment, Mr. Van Berry conspired with Mrs.
Van Berry to rob the courier who would be delivering the proceeds
from the December 15, 2003 tax sale to the depository bank.
Specifically, Defendants allegedly agreed that when the courier
left City Hall with the tax sale proceeds, Mr. Ven Berry would
call Mrs. Van Berry and ask her how her tooth was feeling. That
language was allegedly intended to convey to Mrs. Van Berry that
the courier had left City Hall. ...