Free Motion to Sever Defendant - District Court of Arizona - Arizona

Carmen L. Fischer Attorney at Law 2 SBN #009975 Phillip E. Hantel 3 Attorney at Law
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A ttorneys for H enry W atkins Louisiana B ar N um ber #25078 Luhrs Tow er - Suite 403 45 W est Jefferson Street Phoenix, A Z 85003-2314 (602) 252-1282

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UNITED STATES OF AMERICA
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DISTRICT OF ARIZONA
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UNITED STATES OF AMERICA,
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Plaintiff,
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v.
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HENRY E. WATKINS,
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Defendant.
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CR03-1167-PHX-DGC

MOTION TO SEVER

Henry E. Watkins moves the court to sever this case into smaller trial units pursuant to Federal Code of Criminal Procedure Rule 14. MEMORANDUM OF POINTS AND AUTHORITIES BACKGROUND There are sixteen defendants in this case and forty-three counts in the indictment. Twelve of those sixteen defendants are indicted for either count one or court two the indictment or both. Count one is RICO and count two is RICO conspiracy. The two most serious racketeering acts that support count one and two are the murder of Cynthia Garcia and the Laughlin casino incident. Paul Eischeid and Kevin Augustiniak are charged with Cynthia Garcia's murder and are the sole defendants included in the racketeering acts one and two under count one. They are also charged for the same acts for Violence Crime in Aid of Racketeering count three and four of the indictment. This is the entirety of the charges against Paul Eischeid and Kevin Augustiniak. And as for the "Laughlin Incident" the grand jury has only named Donald Smith, George Walters and Calvin Schaefer under the RICO counts, racketeering act four the attempted murder of

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Mongols on April 27, 2002. These defendants are all charged under other counts discussed below. Donald Smith is only charged with the RICO counts. His is alleged to have committed racketeering act seven(A) along with Dennis Denbesten, which is Conspiracy to Distribute Methamphetamine less than five grams. Dennis Denbesten is alleged to have committed racketeering act seven (B) alone, which is "Distribution of Less than Five Grams of Methamphetamine." George Walters is also charged the two RICO counts. Under those he is alleged to have committed racketeering act eighteen which is conspiracy to murder Bandidos. He is also charged with counts seven which is Violent Crime in Aid of Racketeering (Conspiracy to Murder Bandidos), and count forty-three for the transportation of a firearm knowing it would be used in a violent crime. Calvin Schaefer is charged with seven counts. The first two are the RICO counts. Under those counts, he is alleged to have committed racketeering acts nine and thirteen. He is also charged in count twenty-six possession with intent to distribute less than five grams of methamphetamine, (alleged as a racketeering act number nine), count twenty-seven carrying a firearm during a drug trafficking crime count (charged in twenty-six) and count twenty-seven possession of ammunition being an unlawful user of controlled dangerous substances from count twenty six, all having occurred on February 18, 2003. Robert Johnston is charged with the RICO counts and is alleged to have committed racketeering act six with witness tampering, by using physical force against Rudolph Kramer and racketeering act twenty, conspiracy to distribute methamphetamine and marijuana between August 2002 and July 8, 2003. Dennis Denbesten is charged the two RICO counts and is alleged to have committed racketeering acts seven (A) with Donald Smith on February 1, 2003 and seven (B) by himself on February 1, 2003 and act ten, distribution of less than five grams of methamphetamine also on February 12, 2003. Denbesten is also charged with counts sixteen through twenty-three. Count sixteen is possession with intent to distribute methamphetamine on November 30, 2002. Counts seventeen through nineteen are charges of felon in possession of a firearm on December 3, 2002. Count twenty is possession with intent to distribute methamphetamine on January 6, 2003. Count twenty one is possession with intent to distribute methamphetamine on January 7, 2003, Count twenty two is

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possession with intent to distribute methamphetamine on January 8, 2003 and count twenty-four is possession with intent to distribute methamphetamine on February 1, 2003, which is also racketeering act seven. Lastly, Dennis Denbesten is charged with count twenty-five with possession with intent to distribute methamphetamine on February 12, 2003, which is also racketeering act ten. All of the methamphetamine charges are for less than five grams. Andrew Murphy is charged with the RICO counts. Within those he is alleged to have committed racketeering act eleven for distributing less than five grams of methamphetamine on February 14, 2003. Murphy is also charged with counts twenty-four, twenty-nine and thirty. Count twenty-four is possession with intent to distribute less than five grams of methamphetamine on February 10, 2003. Count twenty-nine is the possession with intent to distribute less than five grams of methamphetamine on February 14, 2003, also alleged as racketeering act eleven. Count thirty is possessing a firearm in relation to a drug trafficking crime, count twenty-nine on February 14, 2003. Rudy Jaime is charged with the RICO counts, and is alleged to have committed, racketeering act twelve, distribution of methamphetamine on February 15, 2003 and racketeering act fifteen, distribution of methamphetamine on April 10, 2003. Jaime is also charged with counts thirty-one and thirty-four through thirty-nine. Count thirty-one is possession with intent to distribute

methamphetamine on February 15, 2003. Counts thirty-four through thirty-nine center around an April 10, 2003 incident, Count thirty-four charges Jaime with conspiracy to distribute less than five grams of methamphetamine and less than fifty kilograms of marijuana, count thirty-five and thirty-six charge Jaime with the possession with intent to distribute the methamphetamine and marijuana respectively on April 10. 2003. Thirty-seven and thirty-eight are possessions of a firearm during a drug trafficking crime for the methamphetamine and marijuana charges, and count thirty-nine charges Jaime with being an unlawful user of controlled substances in possession of a firearm all on April 10, 2003. Elton Ward is charged with the RICO counts and is alleged to have committed racketeering acts sixteen and seventeen. Sixteen being the distribution of five or more grams of methamphetamine on April 28, 2003 and seventeen being the distribution of five or more grams of methamphetamine on May 16, 2003. Ward is also charged under counts forty and forty-one. These two counts match the racketeering acts which are possession with intent to distribute five or more grams of

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methamphetamine on April 28, 2003 and again on May 16, 2003. Theodore Toth is charged with count two the RICO conspiracy and count Seven. Under the RICO count he is alleged to have conspired with George Walters to murder a member or members of the Bandidos Motorcycles Club on June 12, 2003. Count seven charges the same act as a Violent Crime in Aid of Racketeering, along with George Walters and Robert T. Reinstra on June 12, 2003. As noted above count seven of the indictment charges Robert T. Reinstra with Violent Crime in Aid of Racketeering in an alleged conspiracy to murder a member of Bandidos Motorcycle Club on June 12, 2003, and this is Mr. Reinstra's only charge. Robert McKay is charged under counts six, eight and nine. Count six is Violent Crime in Aid of Racketeering for an assault with a Dangerous Weapon on a William Potter on June 21, 2000. Count eight is another VICAR count against an unnamed victim on August 21, 2004. Count nine charges Mr. McKay with threatening to assault a federal law enforcement officer on August 31, 2004. Craig Kelly is charged under counts five and twelve through fifteen. Count five charges Mr. Kelly and Mr. Watkins with Violent Crime in Aid of Racketeering: Assault with a Dangerous Weapon of Daniel Gutierrez on February 1, 2003. Counts twelve through fifteen charge Mr. Kelly with felon in possession of various firearms on September 19, 2002. Finally, Henry Watkins faces three counts five, ten and eleven. Count five as noted above charges that Mr. Watkins and Craig Kelly committed a Violent Crime in Aid of Racketeering: Assault with a Dangerous Weapon of Daniel Gutierrez on February 1, 2003. Count ten charges Mr. Watkins with possessing a firearm with an obliterated serial number on June 1, 2002. And finally count eleven charges that Henry Watkins possessed with the intent to distribute less than five grams of methamphetamine on June 5, 2002. ARGUMENT Federal Rule of Criminal Procedure Rule 2 suggests that Federal Rules of Criminal Procedure are intended to provide for the just determination of every criminal proceeding and to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. As for joinder, Rules of Criminal Procedures 8 and 14 apply. Rule 8 addresses joinder as a matter of law and Rule 14 provides for the Relief from Prejudicial Joinder.

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Under Rule 8, if an indictment alleges a conspiracy it is well established that all members of the conspiracy are properly joined.1 Understandably, a preference exists that those defendants that the Grand Jury indicts together should stand trial together.2 And in most cases joinder provides a number of things that speed along the administration of justice. Further, under Rule 8 the disparity in charging or other prejudicial or other inquiry is not relevant to the inquiry rather the court must only look at the face of the indictment.3 On the other hand, Rule 14 authorizes severance in a case that is properly joined under Rule 8 (b) if such joinder is prejudicial to the defendant(s). When this rule is applied to a large mass trial like this case, the court must weigh the public interest of a joint trial of a large number of defendants against the possibility of prejudice or confusion arising from such a large trial.4 Generally, there are a number of advantages to a joint trial. Joint trials reduce the expenditure of the judicial and prosecutorial time as well as reducing the demands that the criminal justice system makes on witnesses. Joint trials also aid in the accurate administration of justice by allowing everyone accused of the crime to be present at trial thus minimizing the defense of blaming the absent party. Based on these advantages, generally a severance should only be granted for the most compelling reasons. On the other hand RICO and large multi-defendant trials give rise to compelling reasons to reconsider this rule. Such mass trials can place an extraordinary burden on all those concerned. Because of this, a number of trial courts have questioned the wisdom of proceeding with large mass trials.5

United States v. Garner, 837 F. 2d. 1404 (7th Cir. 1987) United States v. Van Cauwenberghe, 827 F.2d 424, 431 (9th Cir. 1987); United States v. Polizzi, 801 F.2d 1543, 1553 (9th Cir. 1986); United States v. Parker, 404 F.2d 1193, 1196 (9th Cir. 1968) United States v. Bruun, 809 F.2d 397 (7th Cir. 1987); United States v. Velasquez, 772 F.2d 1348 (7th Cir. 1985) United States v. Lane, 474 U.S. 438, 106 S.Ct. 725, 88 L.Ed. 864 (1986) United States v. Mancuso, 130 F.R.D. 128 (D. Nev. 1990); United States v. Gallo, 668 F. Supp. 736 ( E.D.N.Y. 1987)

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Two cases in particular have taken particular effort and time in exploring the issue of severance in the large mass trials, such as the one before the bar. They are United States v. Andrews6 and United States v. Casamento7. In both cases the court suggested that with large mass trials there is great benefit in breaking them into smaller parts. Mr. Watkins submits that this case should be broken into smaller parts for the reasons discussed below. In United States v. Andrews8 the court faced a trial larger than this case and severed the case into five smaller trials. In doing so, the court provided a lengthy analysis of what a court might consider when presented with, what the court termed a mega-trial. The court first addressed what it thought the general disadvantages were with a large trial. First, the court suggested that where most defense counsels were funded by the Federal Government, the trial court must consider that many of those attorneys will be forced to sit idly by for the duration of the trial while the vast amount of evidence presented would deal solely with the criminal activities of a few other defendants and attorneys.9 Secondly, the Andrews suggested that the trial court should foresee the administrative issues that would develop with such a large joint trial. The court suggested that trial time estimates for large trials are often optimistic since small issues can cause lengthy and unpredictable delays. Issues such as objections and issues with witness appearance frequently lengthy any trial. As the number of attorneys increases, so does the likelihood of such incidents. The Andrews court further noted that such concern may provide another justification for severance of the large cases under the courts inherent authority to manage is own docket. Thirdly, the Andrews court noted that large mass trials burden counsel, jurors and parties. The jurors bear the most onerous hardship since they must step away from their normal life for months in

754 F. Supp. 1161 (N.D. Ill. 1990) 887 F.2d 1141 (2nd Cir. Ny 1989) 754 F. Supp. 1161 (N.D. Ill. 1990) See also United States v. Phillips, 664 F.2d 971 (5th Cir. 1981)where the defendant complains that the evidence against him took 120 out of the 12,000 page transcript.

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a large mass trial. This hardship must impact aversely on the jury's proper functioning. The court noted that defendant may be detained an unfairly long period waiting to get the mass trial into court whereas if the case is broken into smaller trials, defendants would get to trial sooner. Finally, the court suggested that the burden on appointed counsel to be in trial for months is great as well especially for those appointed counsel who are sole practioners. Lastly, the Andrews court looked at itself and suggested that as trial progressed, the fear of mistrial also increased. Therefore, the ability of the court to make objective decisions might be impaired at the late stages of trial. The Seventh Circuit has developed four grounds for granting a severance under Rule 14. The Andrews court applied the large trial problems to those grounds and discussed them. They are antagonistic defenses, massive and complex evidence, co-defendants statements inculpate a codefendant and gross disparity in evidence.10 The three that apply here are complex evidence, gross disparity and antagonistic defenses. Massive or Complex Evidence When the basis for the motion for severance is that there is massive or complex evidence, the question becomes whether the jury has the capacity to follow the admonitory instruction and to keep separate, collate and appraise evidence relevant only to each defendant.11 The jury thus needs to be able to assess each defendant's culpability solely based on each defendant's acts, statements and conduct. So, the trial court must conclude that as a practical matter whether the jury will give each defendant the individual justice that the law demands. For instance in this matter, after four or more months of trial, the jury will have to sift though a small warehouse full of evidence and therefore may not be as easily be able to be fair to each defendant merely because of the volume of evidence. Along with the large volume of evidence, there will be admission of various types of evidence

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United States v. Garner, 837 F.2d 1404, 1413(7th Cir. N.D. Ill 1987); United States v. Oglesby, 764 F.2d 1273 (7th Cir. 1985) See. United States v. Fernandez, 892 F.2d 976, 990 (11th Cir. Fla. 1989)

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on a limited basis. Though admissible under Federal Rule of Evidence, Rule 401, a large part of the evidence would be excluded under Rule 403 to some of the defendants. Further, other evidence would have to be surgically admitted under the co-conspirators statements pursuant to Rule 801(d)(2)(E). But, when combined with such a large volume of evidence the ability of anyone to properly weigh all the evidence diminishes. Disparity of Evidence This, the Andrews court noted, is the same as "spillover prejudice." Under this, the jury must again concentrate on the instructions and only consider the evidence to be admitted as to specific defendants. Using the Andrews case as an example, the difference in evidence there was striking and makes the point clearly, about what this ground considers. In Andrews, on one hand there were three defendants charged with the commission of less than five racketeering acts under the RICO count. Then there were four more charged with five racketeering acts. Then there were some more defendants charged with twelve acts. And at the far end, there was one defendant charged with thirty-nine counts and one fugitive defendant charged with seventy acts. Based on this, the court concluded, that there would be likely to be a gross disparity in the weight of evidence presented for each defendant, which could cause prejudice. Although this case is not to that scale, this case has a broad range of charges and underlying factual circumstances is present here too. The crimes in this case range from the Garcia kidnaping and murder to possession of less than five grams of methamphetamine. Further four defendants, Henry Watkins, Robert Reinstra, Craig Kelly and Robert McKay, are not charged with either racketeering or conspiring to commit racketeering. At the other end of the spectrum, some defendants are only charged under the RICO counts. In Andrews, the Government argued that severance was not justified under this theory because the Government would be forced to present the same evidence at every trial to prove the entire pattern, activity, and the full scope of the enterprise. Thus, the interests of justice warranted not granting the severance. The Andrews court noted that this argument was not entirely persuasive. Though all the evidence that the Government talked about would be technically admissible under Rule 401, it certainly

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would be subject to some limitation or exclusion at some trials if it lacked connection to the active criminal deeds of any of those defendants in their severed trial. This limitation or exclusion would center around Rule 403, which mandates the exclusion of evidence whose probative value is substantially outweighed by the danger of unfair prejudice, considerations of undue delay, waste of time, or needless presentation of cumulative evidence. The same may be true in this case with much of the underlying RICO counts as applied to a number of the less culpable defendants or those defendants who are not tied to either the Garcia murder or Laughlin incident, or drug distribution conspiracies. Antagonistic Defenses In Andrews, at the time the defendants moved to sever the case, they were only speculating as to what their particular defenses were going to be. The court noted, however, that the large number of defendants proceeding to trial all in one case made it certain that there will be a significant amount of finger pointing and different trial strategies. The court concluded that prejudice became more likely since a jury may not be able to comprehend the individual defense strategies and thus not give everyone the consideration and justice needed. As a second concern, if during trial, it became apparent that there would be mutually exclusive defenses, then severance would be mandated under Bruton.12 Thus all of the work done to that point would be wasted as to those defendants that the court had to sever. This case has those same concerns. The second case that addresses the severance of large mass trials is United States v. Casamento.13 Here the court outlined some guidelines for a district court to consider when faced with what it called a mega-trial. First, a mega-trial would be one that will last four months or longer. If the case is estimated to go that long, then the court should ask the Government why the case must go forward on such a scale versus going in smaller more logical groups. The Casamento court found that breaking a large mass trial into manageable sections, allows

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Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) 887 F.2d 1141 (2nd Cir. NY. 1989)

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for two major improvements to the administration of justice. First, it cuts down on the time needed for the jurors. The court noted that for a juror to sit in trial for more than two or three weeks is a serious burden. Secondly, breaking the trial into small, more closely related groups allow for a reduction in trial disputes. This again was voiced by the Andrews court as an administrative concern. The Casamento court also suggested that a trial court was within its providence to help the Government determine whether they could proceed with smaller charges that would carry adequate penalties. For instance, in a situation with major and minor players, the court noted that it was inefficient to have a defendant whose case would only take a short time to present outside the mass trial proceed through a mass trial. Although the United States Supreme Court has voiced support of joint trials, it has cautioned that when defendants are tried in complex cases and have markedly different degrees of culpability the risk of prejudice is heightened.14 Should the court become convinced that a large mass trial needs to be broken down into more manageable parts, the question becomes, how to do it. Severance Plan When the Andrews court decided that the case could not proceed en mass, the court asked the Government for a severance plan because obviously it was in the best position to provide a workable plan based on all of the evidence. The Government refused. The court noted that the government should know when their case is too big. For instance in United States v. Barger15 a case involving twenty members of the Hells Angels Motorcycle Club that included an eight count, forty page indictment that the Government admitted was unmanageable. The Government elected to try the ten most major defendants. In Andrews the Court considered the same type of arrangement and noted that the Government

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Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) 923 F.2d 855 (6th Cir. Ky. 1991) Western District of Kentucky (87-00154)(Table decision)

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needs only to prove two racketeering acts to show a pattern of racketeering activity, therefore making further evidence less relevant and less probative. Using this logic, the court broke the RICO and underlying predicate acts into groups. In the end, the Andrews court planned to try between four and eight defendants at a time for their related crimes. In some instances the court instructed that the Government to hold back certain crimes. And thought the Government found this objectionable, the Court noted that in many instances it would make no difference to the ultimate sentence. If convicted on the selected charges, the defendant would face sufficiently long prison terms, thus obviating the need for further convictions. Here this Court could apply the same type of plan and provide for a more manageable trial for all involved. As noted above in the background section, there are four defendants who are not charged in either of the RICO counts: Robert McKay, Robert Reinstra, Henry Watkins, and Craig Kelly. Further, there are a number of defendants who are charged in the RICO counts: Robert Johnston, Donald Smith, George Walters Andrew Murphy Calvin Schaefer, Dennis Denbesten, Rudy W. Jaime, Elton Ward, Paul Eischeid, Kevin Augustiniak and Theodore Toth. Finally, there are a number of defendants who are charged with drug distribution charges only and who are not involved in either the Laughlin incident or involved with the Garcia murder: Robert Johnston, Andrew Murphy, Dennis Denbesten, Rudy W. Jaime, and Elton Ward. So there are a number of possibilities for smaller trial grouping in this case. As such, Henry Watkins requests that this Court grant this Motion to Sever and break this mass trial into smaller more manageable parts. Respectfully submitted this 14th day of December 2005. /s/______________________ CARMEN L. FISCHER PHILIP E. HANTEL Attorney for Henry Watkins

A courtesy copy of the foregoing delivered this 15th day of December 26 2005 to:
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Judge David G. Campbell United States District Court Judge

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