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U.S. v. VAN BERRY

May 18, 2005.

UNITED STATES OF AMERICA,
v.
NADINE HOMICK-VAN BERRY and CLINTON VAN BERRY, Defendants.



The opinion of the court was delivered by: JEROME SIMANDLE, District Judge

OPINION

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

  I. BACKGROUND

  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 F.B.I. cooperator.

  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 Improvement Program

  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 sales.

  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. ...


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