USA v. Busch et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
v. DECISION AND ORDER
09-CR-331-A
MIGUEL MOSCOSO, a/k/a
Choko, et al.,
Defendants.
This complex gang-related racketeering case includes charges of murder,
assault, attempted assault, witness tampering, and narcotics trafficking by the
defendant, Miguel Moscoso, and other alleged members of the so-called 10th
Street Gang in Buffalo, New York. Twenty-one other defendants have charges
pending in a Fourth Superseding Indictment. More than fifteen other persons
have entered guilty pleas in this Court to closely-related charges.
Defendant Moscoso filed a motion on January 18, 2013 seeking an order of
severance and a date for a trial within 70 days. Defendant faces trial on charges
of racketeering and of participation in a lengthy racketeering conspiracy in
violation of 18 U.S.C. § 1962(d); of racketeering murder, racketeering assault,
and attempted racketeering assault in violation of 18 U.S.C. § 1959(a); of
possession and discharge of firearms in furtherance of crimes of violence and in
furtherance of a narcotics conspiracy in violation of 18 U.S.C. 924(c); of witness
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tampering in violation of 18 U.S.C. § 1952(a); and of narcotics conspiracy in
violation of 21 U.S.C. § 846. Dkt. No. 408. The alleged racketeering conspiracy
is alleged to have continued for more than a year after the initial Indictment was
returned and for an indeterminate period of time after defendant was charged in
2010. Defendant seeks a trial date for all 12 counts, or alternatively, for two
counts of racketeering murder and of possession and discharge of a firearm in
furtherance of a crime of violence in Counts 15 and 16 of the Fourth Superseding
Indictment. Dkt. No. 731.
All other pending defendants are engaged in motion practice before a
Magistrate Judge on referral from this Court and all but one defendant’s briefing
of issues addressed during completed evidentiary hearings before the Magistrate
Judge is due April 1, 2013, with government responses due May 15, 2013. The
Court is aware that pretrial proceedings are in their final stages before Magistrate
Judge Scott and that the case will be returned for setting a trial date. No other
defendant is seeking severance and a trial date.
Defendant Moscoso’s motion for severance contains little more than his
request for a severance. Defendant has been in pretrial detention since
September 22, 2010, and has, with his severance motion filed January 18, 2013,
withdrawn and abandoned previously-filed pretrial motions. At the appearance
for oral argument of the motion for severance on February 19, 2013, defense
counsel made an oral request for assignment of additional counsel to assist him
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because of the complexity of the discovery and the charges.
The United States responded to defendant Moscoso’s motion for a
severance with a filing on February 5, 2013 and reports that it consents to
severance of the case as against the defendant, provided the severed trial is of
all the charges pending against defendant in the Fourth Superseding Indictment.
Dkt. No. 775. The United States estimated during the parties’ appearances for
oral argument of defendant’s motion to sever that the trial will take somewhere
between two and four weeks of trial time. It reported that defendant’s counsel
and the government have preliminarily addressed some special trial preparations,
such as orders of confidentiality regarding Jencks material to protect the safety of
some witnesses, and the possibility that material witness warrants and orders of
compulsion may be needed for other witnesses.
The United States’ responses to defendant Moscoso’s motion for
severance also fail to address other important factors to be considered by the
Court upon a motion for severance. In addition, the United States has not
addressed that the Fourth Superseding Indictment is well within the scope of the
warnings against “mega-trials” of more than ten defendants at once raised by
the Second Circuit in United States v. Casamento, 887 F.2d 1141, 1151-52 (2d
Cir. 1989). The likelihood that a severance of some defendants charged in the
Fourth Superseding Indictment will be necessary to make manageable groups of
defendants of approximately ten defendants to be tried together, or smaller
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groups, is relevant to the Court’s consideration of how to proceed to trial with
defendant and defendant’s desire for an immediate trial.
Federal Rule of Criminal Procedure 14(a) permits the district court to sever
a defendant’s trial if it appears that either the government or the defendant will be
prejudiced by the joinder. Neither party has established prejudice.
Severance is a matter of discretion left to the Court. United States v.
Stirling, 571 F.2d 708, 733 (2d Cir. 1978). Generally, a defendant bears the
burden of showing that prejudice from a joint trial “is sufficiently severe to
outweigh the judicial economy that would be realized by avoiding multiple lengthy
trials”. United States v. Walker, 142 F.3d 103, 110 (2d Cir. 1998) In fact, Rule 14
does not require severance even if prejudice is shown. United States v.
Friedman, 854 F.2d 535, 563 (2d Cir. 1988) Instead, the defendant must show
“prejudice so substantial as to amount to a miscarriage of justice”. Id. at 563.
The parties have left the propriety of severance upon defendant Moscoso’s
motion and the United States’ consent to severance to speculation. For that
reason, the motion to sever is denied.
Meanwhile, it is abundantly clear that the parties are not prepared to set a
realistic trial date. Defense counsel’s oral request for an assignment of additional
counsel because of the complexity of the case is denied. The Court is acutely
aware defendant Moscoso’s case is complex and that it has been pending for a
long time. The parties are directed to continue to prepare diligently for trial so
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that defendant Moscoso will have effective assistance of counsel when his
complex trial begins and so that the trial can continue in an orderly fashion from
day to day until completed without substantial interruption.
A status conference is scheduled on April 19, 2013, at 9:00 a.m., for
defendant Moscoso. The Court finds, sua sponte, that a Speedy Trial Act
exclusion may be entered at this time because the public’s and the defendant’s
interests in an efficient trial during which defendant Moscoso will receive effective
assistance of counsel, despite the complexity of the charges and the evidence,
outweighs the public’s and defendant’s interest in a speedier trial. Upon that
interests-of-justice finding, the Court excludes time from March 8, 2013 through
and including April 19, 2013, pursuant to 18 U.S.C. § 3161(h)(7)(A). At or before
the April 19, 2013 status conference, the Court will address the status of the
parties’ trial preparations.
SO ORDERED.
s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED:March 8, 2013
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