The opinion of the court was delivered by: Linares, District Judge.
Defendants Anthony Suarez and Vincent Tabbachino both have been charged with conspiracy to commit extortion under color of official right in violation of 18 U.S.C. § 1951(a) and attempted extortion under color of official right in violation of 18 U.S.C. § 1951(a) and § 2. Mr. Suarez also has been charged with acceptance of a corrupt payment in violation of 18 U.S.C. § 666(a)(1)(B) and § 2. Mr. Tabbachino also has been charged with giving and offering a corrupt payment in violation of 18 U.S.C. § 666(a)(2) and § 2 as well as three counts of money laundering in violation of 18 U.S.C. § 1956(a)(3). On June 16, 2010, Mr. Suarez submitted several pretrial motions. On June 17, Mr. Tabbachino also submitted several pretrial motions. This Court held a hearing on Defendants' motions on July 27, 2010. In that hearing, the Court disposed of several of the motions and reserved on others. The Court reserved on Mr. Suarez's motion to sever his case from that of Mr. Tabbachino pursuant to either Rule 8(b) or Rule 14 of the Federal Rules of Criminal Procedure and Mr. Suarez's motion to strike the surplusage in the Indictment. The Court is denying Mr. Suarez's surplusage motion without prejudice to its re- submission no later than ten days prior to trial along with a proposed summary of the case as Ordered at the July 27 hearing. Therefore, this Opinion only addresses Mr. Suarez's severance motion. The Court has considered the arguments made at the July 27 hearing and the submissions made in support of and in opposition to Mr. Suarez's motion, including the supplemental submission by the Government. For the reasons set forth below, this Court denies Mr. Suarez's motion to sever his case from that of Mr. Tabbachino.
In May 2006, Solomon Dwek was arrested by the Federal Bureau of Investigation ("FBI") on bank fraud charges. Mr. Dwek subsequently agreed to become a cooperating witness, assisting the FBI in an investigation. Part of the FBI's investigation focused on public corruption. As part of the investigation, Mr. Dwek would pose as a real estate developer who was looking for assistance expediting his projects through local government processes. The investigation resulted in the arrest of numerous individuals on July 23, 2009, many of whom were New Jersey politicians.
During the relevant period for the Indictment in this case, Mr. Suarez was the Mayor of the Borough of Ridgefield and a member of the Ridgefield Planning Board. (Indictment, Count One, ¶ 1.) Mr. Tabbachino "was the proprietor of a tax preparation business, Tabbachino Associates,... and was a friend and associate of [Mr.] Suarez." (Id. at ¶ 2.A.) Mr. Tabbachino met Mr. Dwek in 2008. (Id. at ¶ 2.C.) Mr. Tabbachino introduced Mr. Dwek to Mr. Suarez in approximately March of 2009. (Id.) The Indictment alleges that "[f]rom in or about April 2009 to in or about July 2009,... [the defendants] did knowingly and willfully conspire and agree with each other to obstruct, delay and affect interstate commerce by extortion under color of official right" through the acceptance of corrupt payments from Mr. Dwek. (Id. at ¶ 3.) The Indictment also alleges that both defendants "knowingly and willfully did attempt to obstruct, delay and affect interstate commerce by extortion under color of official right...." (Id., Count Two, ¶ 2.) In connection with these alleged corrupt payments, the Indictment also alleges that both defendants violated federal bribery laws, 18 U.S.C. § 666(a)(1)(B) for Mr. Suarez, (id., Count Three), and § 666(a)(2) for Mr. Tabbachino, (id., Count Four). In addition to the corrupt payment offenses, the Indictment also charges Mr. Tabbachino with money laundering. (Id., Counts Five through Seven.)
The corrupt payment counts involve allegations that Mr. Suarez and Mr. Tabbachino accepted money from Mr. Dwek in exchange for Mr. Suarez's official assistance with Mr. Dwek's development projects. The money laundering counts against Mr. Tabbachino involve Mr. Tabbachino's alleged receipt of money from Mr. Dwek by Tabbachino Associates for the purpose of laundering the money for Mr. Dwek. The money to be laundered was purported by Mr. Dwek to be profits from a counterfeit handbag business. There are no allegations in the Indictment that Mr. Suarez was involved in Mr. Tabbachino's alleged money laundering scheme.
Mr. Suarez argues that, pursuant to Rule 8(b) of the Federal Rules of Criminal Procedure, his case is improperly joined with that of Mr. Tabbachino because of the inclusion in the Indictment of the money laundering counts against Mr. Tabbachino which are not related to the counts against him. At the July 27 hearing, the Government argued that Rule 8(a), not 8(b), governed any analysis involving misjoinder of offenses. (See Hearing Tr. 56:7-9, 58:4-8.) But, Third circuit law is clear that "Rule 8(a), 'dealing with the joinder of offenses, applies only to prosecutions involving a single defendant' and that in a multi-defendant case such as this, 'the tests for joinder of counts and defendants is merged in Rule 8(b).'" U.S. v. Irizarry, 341 F.3d 273, 287 (3d Cir. 2003) (quoting United States v. Somers, 496 F.2d 723, 729 n.8 (3d Cir. 1974)); see also United States v. Eufrasio, 935 F.2d 553, 570 (3d Cir.1991). The Government, in its supplemental submission, appears now to agree that 8(b) controls the current misjoinder argument but argues that, if misjoinder is found, the remedy is simply severance of the offending offenses, not severance of the defendants' cases. On the other hand, Mr. Suarez, citing to Eufrasio, argues that, if this court finds that there is misjoinder under Rule 8(b), the "defendants may not be tried together." 935 F.2d at 567. Mr. Suarez thus argues that this Court does not have discretion under Rule 8(b) to merely sever any offending counts.
For joinder under Rule 8(b) to be proper, there must be "a 'transactional nexus' between the offenses or defendants to be joined." Irizarry, 341 F.3d at 287 n.4. This means that all offenses must be part of "a common scheme or plan." Eufrasio, 935 F.2d at 567; see also United States v. Velasquez, 772 F.2d 1348, 1353-54 (7th Cir. 1985) (holding that certain drug and retaliation counts were improperly joined with other drug counts where there was no relationship between the counts). Here, there is no assertion that the money laundering counts against Mr. Tabbachino have any connection whatsoever with, much less any transactional nexus to, the counts against Mr. Suarez. The Government stated at the July 27 hearing that it "will readily say... in its opening statement and its closing and summation" that "Mr. Suarez has nothing to do with the money laundering counts." (Hearing Tr. 59:14-18; see also id. at 62:9-11 ("Mr. Suarez has nothing to do with the money laundering counts, and there is no evidence that he had knowledge of it.").) Therefore, there clearly is misjoinder under Rule 8(b). The real question presented, then, is the appropriate remedy.
The Court agrees with Mr. Suarez that, according to Eufrasio, the defendants could not be tried together on all counts in the Indictment. But, contrary to Mr. Suarez's position, the Court disagrees that the language in Eufrasio means that this Court has no discretion to cure the joinder issue by severance of the offending counts rather than severing the cases. Indeed, where improper joinder has been found in situations like the present one, courts often note that the offenses were improperly joined. See, e.g., Velasquez, 772 F.2d at 1356 ("The misjoinder of the heroin charges against Galvan violated Rule 8(b).") (emphasis added). Mr. Suarez has pointed to no case that clearly states that a court must sever the cases where severance of the offending counts would cure the misjoinder issue.
In this case, Mr. Suarez does not argue that the defendants would be improperly joined in the absence of the inclusion of the money laundering counts against Mr. Tabbachino. In other words, Mr. Suarez does not argue that the defendants could not be properly joined in a trial on the extortion and bribery counts if the money laundering counts had not been included in the Indictment. Given that the Government may obtain a superseding indictment "anytime prior to trial," United States v. Fisher, 871 F.2d 444, 452 n.7 (3d Cir. 1989), severance of the defendants, versus offenses, seems impractical. This is particularly true when this Court already has ruled that, with respect to Mr. Tabbachino, the money laundering counts are to be severed from his extortion and bribery counts. (See Hearing Tr. 64:22-24.) Therefore, the Court holds that, while the money laundering offenses were improperly joined under 8(b), the appropriate remedy is severance of those offenses, not severance of the defendants. Mr. Suarez's motion for severance of the cases under Rule 8(b) is denied.
Mr. Suarez alternatively argues that the defendants' cases should be severed under Rule 14 because a joint trial would be unduly prejudicial. "A court should grant severance under Fed. R. Crim. P. 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." United States v. Lore, 430 F.3d 190, 205 (3d Cir. 2005) (internal quotations omitted); see also Zafiro v. United States, 506 U.S. 534, 539 (1993). Additionally, "[d]efendants seeking a severance bear a heavy burden and must demonstrate not only that the court would abuse its discretion if it denied severance, but also that the denial of severance would lead to clear and substantial prejudice resulting in a manifestly unfair trial." Id. (internal quotations omitted).
Mr. Suarez argues that, even if the money laundering counts are severed, trial with Mr. Tabbachino will unduly prejudice him because "[t]he Government clearly states that it... intend[s] to introduce evidence of the money laundering scheme against Mr. Tabbachino in the corrupt payment case, pursuant to Rule 404(b), if the... counts are severed." (Suarez Reply, at 4.) Mr. Suarez argues that the introduction of such evidence will prejudice him by bolstering "[Mr.] Dwek's credibility as to the corrupt payments" and because Mr. Suarez may be considered guilty by association, especially where, he asserts, "the proofs in the money laundering matter are stronger." (Mem. of Law in Supp. of Def. Anthony Suarez's Pretrial Mots., at 14.)
The Court has ruled that the money laundering counts against Mr. Tabbachino should be severed. Therefore, the question is whether any potential evidence that may come in through Rule 404(b) against Mr. Tabbachino related to the money laundering charges would seriously risk the trial rights of Mr. Suarez. This Court will have various methods of addressing any potential prejudice of such evidence in the event the Government seeks its admission in the corrupt payment trial against Mr. Suarez and Mr. Tabbachino. The Court may deny admission of the money laundering evidence, may limit its scope, and/or may provide a limiting instruction related to the evidence. This will present a much less prejudicial environment as to Mr. Suarez than a trial which includes the money laundering offenses against Mr. Tabbachino along with the corrupt payment counts. Much of the corrupt payment evidence will be the same against both defendants. Thus, judicial economy favors trying the defendants together on the extortion and bribery counts. Additionally, any evidence that may potentially be introduced through Rule 404(b) (assuming the court allows it ) is likely to be limited and will be directed only at Mr. Tabbachino. For these reasons, the Court finds that, with appropriate limitations on the admission of any money laundering evidence and/or appropriate limiting instructions, "the ...