The opinion of the court was delivered by: William J. Martini, U.S.D.J.
This matter comes before the Court on two motions. The first motion, by defendants Michael Borelli, Peter Grecco, John Grecco and Nicholas Ladagona, requests a severance of certain counts of the United States's indictment pursuant to Federal Rules of Criminal Procedure 8(b) and 14(a). The second motion, by defendant Joseph Scarbrough, asks the Court to dismiss the indictment in this multi-defendant trial, or in the alternative grant a hearing, based on outrageous government conduct. Oral argument on these motions occurred on March 12, 2006. For the following reasons, the motions to sever by Michael Borelli, Peter Grecco, and Nicholas Ladagona are GRANTED, John Grecco's motion to sever is DENIED, and Joseph Scarbrough's motion to dismiss the indictment, or in the alternative for a hearing, is DENIED.
On August 15, 2005, a federal grand jury issued a nineteen count indictment charging sixteen defendants, including Michael Borelli, Peter Grecco, John Grecco, and Nicholas Ladagona, with committing various crimes. Counts 1 and 2 of the indictment (the "RICO Count(s)") charge certain defendants with violating the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968. The remaining counts of the indictment charge the defendants with committing an assortment of substantive non-RICO offenses, such as gambling, making extortionate extensions of credit, and collection of unlawful debts (the "Substantive Count(s)"). Certain of these Substantive Counts (i.e., Counts 4 through14) replicate predicate acts charged in the RICO Counts. Defendants Michael Borelli, Peter Grecco, John Grecco, and Nicholas Ladagona now move to sever those counts of the indictment charging them pursuant to Federal Rules of Civil Procedure 8(b) and 14(a).
B. Legal Standard for Severance
Rules 8(b) and 14(a) of the Federal Rules of Criminal Procedure govern the issue of severance. Rule 8(b) provides that two or more defendants may be charged in the same indictment "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." Fed. R. Crim. P. 8(b). This rule permits joinder "when a transactional nexus exists between the ... defendants to be joined." United States v. Eufrasio, 935 F.2d 553, 570 n.20 (3d Cir. 1991). Rule 8(b) provides substantial leeway to prosecutors who wish to join racketeering defendants in a single trial. See id. at 567. The rule allows joinder of defendants charged with participating in the same conspiracy or racketeering enterprise. Id.
Although joinder may be lawful under Rule 8(b), severance under Rule 14(a) may be appropriate where joinder creates a risk of substantial prejudice to a defendant. See id. at 568. Rule 14(a) provides that "[i]f the joinder of offenses or defendants in an indictment ... appears to prejudice a defendant ... the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires." Fed. R. Crim. P. 14(a). Severance under Rule 14(a) is committed to the trial court's discretion. Eufrasio, 935 F.2d at 568. A defendant claiming improper joinder under Rule 14(a) must demonstrate "clear and substantial prejudice." United States v. Davis, 397 F.2d 173, 182 (3d Cir. 2005); see also Eufrasio, 935 F.2d at 568 (quoting United States v. Reicherter, 647 F.2d 397, 400 (3d Cir. 1981) (noting that a defendant must demonstrate "clear and substantial prejudice" that would result in a "manifestly unfair trial" to establish the need for severance). When determining whether severance under Rule 14(a) should be granted, a trial court must carefully consider whether the charges and evidence that will be presented is such that a jury could not be expected to "compartmentalize" it for the purpose of determining guilt or innocence. See United States v. Inigo, 925 F.2d 641, 655 (3d Cir. 1991); United States v. Dansker, 537 F.2d 40, 62 (3d Cir. 1976).
C. Michael Borelli and Peter Grecco's Motion for Severance
Michael Borelli and Peter Grecco are charged in only Count 5 of the indictment. This count charges Borelli and Grecco with engaging in an illegal numbers operation. Importantly, this count replicates a predicate act in the RICO Counts. Therefore, joinder of Borelli and Grecco is proper under Rule 8(b). See United States v. Irizarry, 341 F.3d 273, 290 (3d Cir. 2003) ("Rule 8(b) permits the joinder of RICO and non-RICO counts in one indictment where the offenses charged in the non-RICO counts are also charged as racketeering predicates in the RICO counts"); see also United States v. Somers, 496 F.2d 723, 729-30 (3d Cir. 1974) ("Joinder ... of a conspiracy count and substantive counts arising out of the conspiracy [is permitted], since the claim of conspiracy provides a common link, and demonstrates the existence of a common scheme or plan."). However, this Court shall exercise its discretionary authority under Rule 14(a) and sever Count 5. Due to the minor role played by Borelli and Peter Grecco in the indictment, a substantial danger exists that a jury will not be able to compartmentalize the evidence against these two defendants. Accordingly, their motion to sever is GRANTED.
D. John Grecco's Motion for Severance
John Grecco is charged in the RICO Counts, Count 5, and Count 6. As mentioned earlier, Counts 5 and 6 replicate predicate acts in the RICO Counts.John Grecco argues that severance is required because his involvement in the RICO Counts, and Counts 5 and 6, was minimal.
Joinder here is proper under Rule 8(b). See Irizarry, 341 F.3d at 290; see also Somers, 496 at 729-30. However, unlike Michael Borelli and Peter Grecco, joinder of John Grecco will not be prejudicial under Rule 14(a). First, John Grecco's status as a "minor player" in these counts does not constitute sufficient grounds for granting a severance. See United States v. Lore, 430 F.3d 190, 205 (3d Cir. 2005) (quoting Somers, 496 F.2d at 730) (noting that "'a defendant is not entitled to a severance merely because evidence of a co-defendant is more damaging than the evidence against the moving party.'"). Second, since the indictment charges John Grecco in both RICO Counts and two Substantive Counts, severance would defeat "the fundamental principle that the federal system prefers 'joint trials of defendants who are indicted together ' because joint trials 'promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent judgments.'" United States v. Urban, 404 F.3d 754, 775 (3d Cir. 2005) (quoting Zafiro v. United States, 506 U.S. 534, 537 (1993)). Finally, a jury will be able to compartmentalize the evidence pertaining to John Grecco from the evidence introduced against his ...