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United States v. Dortch

United States District Court, D. Nebraska

January 4, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DIONTE DORTCH, JERELL HAYNIE, GREGORY BAHATI, BRANDON HEARD, and JULIO ARIAS, Defendants.

          ORDER

          F.A. Gossett United States Magistrate Judge

         This matter is before the court on the motions to sever filed by defendants Dionte Dortch (Filing No. 205), Gregory Bahati (Filing No. 212), Brandon Heard (Filing No. 220), Julio Arias (Filing No. Filing No. 229) and Jerell Haynie (Filing No. 240). The court will deny the motions.

         BACKGROUND

         The defendants are jointly charged in Count One of the Superseding Indictment with a conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (“RICO”), in violation of 18 U.S.C. 1962(d), arising out of their alleged criminal activities in connection with the 40th and 44th Ave. Crips street gangs. The Superseding Indictment alleges that between 2008 and 2015, the 40th Ave. and 44th Ave. Crips street gangs “cliqued up” to form an enterprise under 18 U.S.C. § 1961(4). The Superseding Indictment alleges the enterprise engaged in a pattern of racketeering activity under 18 U.S.C. § 1962(c), including murder, attempted murder, witness tampering, and the manufacture and distribution of controlled substances. (Filing No. 20 at pp. 3-7). Count One lists approximately 37 Overt Acts allegedly committed by the defendants or other co-conspirators during the course of the conspiracy. (Filing No. 33 at pp. 7-12).

         In addition to the RICO conspiracy charged in Count One, each defendant is charged individually with separate crimes alleged to have been committed in furtherance of the racketeering conspiracy:

• Arias is charged in Counts Thirteen, Fourteen, and Fifteen with distribution of cocaine base on three occasions in 2015, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). (Filing No. 33 at pp. 18-19).
• Bahati is charged with making threats in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(4) (Count Eight), and brandishing a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count Nine).
• Dortch is charged with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(2) and 924(a)(2) (Count Ten); witness tampering, in violation of 18 U.S.C. §§ 1512(b)(1), 1512(b)(2)(A), and 1512(b)(3) (Count Eleven); and attempted obstruction of justice, in violation of 18 U.S.C. § 1512(c)(2) (Count Twelve).
• Haynie is charged with attempted murder in aid of racketeering, in violation of 18 U.S.C. § 1959 (a)(5) (Count Two); attempt to commit assault with a dangerous weapon in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(6) (Count Three); and discharging a firearm during a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and (iii) (Count Four).
• Heard is charged in Counts Five, Six, and Seven with distribution of cocaine base on three occasions in 2014, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). (Filing No. 33 at pp. 15-16).

         The defendants have filed the present motions to sever their individual charges from the other defendants, arguing that joinder presents the risk of undue prejudice.

         DISCUSSION

         Rule 8(a) of the Federal Rules of Criminal Procedure permits the government to charge multiple counts in a single indictment if the offenses “are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.” Fed. R. Crim. P. 8(a). Rule 8(a) “is broadly construed in favor of joinder to promote the efficient administration of justice.” United States v. Taken Alive, 513 F.3d 899, 902 (8th Cir. 2008).

         Rule 8(b) permits the government to “charge 2 or more defendants 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). “Generally, ‘persons charged in a conspiracy or jointly indicted on similar evidence from the same or related events should be tried together.'” United States v. Lewis, 557 F.3d 601, 609 (8th Cir. 2009) (quoting United States v. Adkins, 842 F.2d 210, 211 (8th Cir. 1988). Other circuits have held that when defendants are charged with a RICO conspiracy, seemingly unrelated offenses satisfy Rule 8(b)'s “same series of acts or transactions” requirement as long as “the criminal acts charged . . . were charged either as predicates for the racketeering charge, or as acts undertaken in furtherance of a commonly charged RICO enterprise.” See United States v. Irizarry, 341 F.3d 273, 289-90 (3d Cir. 2003). See also, United States v. Eufrasio, 935 F.2d 553, 567 (3d Cir. 1991) (“Rule 8(b) provides substantial leeway to prosecutors who would join racketeering defendants in a single trial. The rule permits joinder of defendants charged with participating in the same racketeering enterprise or conspiracy, even when different defendants are charged with different acts, so long as indictments indicate all the acts charged against each joined defendant . . . are charged as racketeering predicates or as acts undertaken in furtherance of, or in association with, a commonly charged RICO ...


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