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I. INTRODUCTION
The defendants filed a variety of pretrial motions. The
United States answers in this omnibus response. Of all the motions
filed, only two seek substantive relief: the motions for severance
and dismissal of counts. These motions should be denied as
premature, unfounded, or both. The continuance motion should be
granted, but findings required under the Speedy Trial Act should be
entered. Proposed findings are submitted herewith.
The United States opposes defendants' motions seeking time to
file additional motions (this is because the motions seek relief in
the abstract--any motions defendants wish to file at a later date
should be accompanied by a justification for their late filing);
pursuant to Fed. R. Crim. P. 12(d)(2), the United States will
designate the evidence it makes available pursuant to Fed. R. Crim.
P. 16, which it intends to use at trial, as defendants request; the
motions to join in motions filed by co-defendants should be denied
because it is unclear which motions each defendant intends to
adopt.
II. FACTUAL BACKGROUND
On May 17, 1991, the Grand Jury returned an Indictment
charging XXXXXXX XXXXXXX with 35 felonies stemming from an odometer
fraud scheme. All codefendants are joined in most of these
offenses.[FN1] The Indictment charges a conspiracy to violate
various federal statutes, including the federal odometer tampering
statute, 15 U.S.C. §§ 1988 and 1990c, the mail fraud
statute, 18 U.S.C. § 1341, and the statute forbidding
interstate transportation of forged or altered securities, 18
U.S.C. § 2314.
FN1. XXXXXX alone is charged in Count 20, which alleges
a willful failure to retain specified records; each defendant is
charged in all other counts, except that defendant XXXXX in
not charged in counts 2-3 or 29.
The conspiracy count alleges that defendants conspired to
purchase
hundreds of late model cars with high mileage, the odometers of
which
defendants then caused to be rolled back. After changing the
odometers,
the conspirators sold the cars for ultimate resale to unsuspecting
consumers who would purchase the cars thinking they had many fewer
miles
than they in fact had. Thus, the prices paid by those consumers
were
fraudulently inflated by the vehicles' false low mileage readings.
The Indictment charges that XXXXXXX's role was to direct the
activities of other defendants, and to buy and sell used motor
vehicles. Specifically, the Indictment charges that XXXXXXX
directed the rollback of odometers and the preparation of false
title documents. Defendant XXXXXX XXXXXXXX is charged with forging
and altering title certificates and other ownership documents of
the motor vehicles to match the false low mileage readings of the
odometers. XXXXXX purchased the vehicles for Southbelt Leasing.
XXXXXX, on instructions from XXXXXXX, XXXXXXX, and XXXXXXX,
actually rolled back the odometers. XXXXXXXXX is charged with
purchasing vehicles from XXXXXXX and XXXXXXX on behalf of a
California firm, knowing that the odometers had been rolled back.
In carrying out their conspiracy, the defendants violated the
substantive provisions of several criminal statutes. Those
offenses, as alleged in the Indictment, are as follows:[FN2]
FN2. All substantive offenses also charge the
defendants violated 18 U.S.C. § 2, the aiding and abetting
statute.
-Defendants caused the odometers on 18 specified
vehicles to
be unlawfully altered, in violation of 15 U.S.C. §§ 1984
and
1990c, and 18 U.S.C. § 2 (Counts 2-19).
-XXXXXXX failed to retain records as required by 15
U.S.C.
§§ 1984 and 1990c, and 18 U.S.C. § 2 (Count 20).
-Defendants provided false odometer disclosure
statements to
purchasers of the cars they sold, in violation of 15 U.S.C.
§§
1984 and 1990c, and 18 U.S.C. § 2 (Counts 21-25).
-Defendants devised a mail fraud scheme, and caused the
mails to be used in defrauding purchasers of used cars, in
violation of
18 U.S.C. §§ 1341 and 2 (Counts 26-30).
-Defendants caused the interstate transportation of
forged
and altered securities, specifically, automobile title documents
bearing
false mileage claims that were transported to California, which was
defendant XXXXXXXXXX's home base during the conspiracy, in
violation of
18 U.S.C. §§ 2314 and 2 (Counts 31-35).
III. DEFENDANTS' MOTIONS
The defendants have all filed pretrial motions.[FN3] Motions
were filed seeking the relief indicated by the defendants listed
(in the order in which we respond to them below):
FN3. In addition, all defendants have made discovery
requests of the United States pursuant to Fed. R. Crim. P. 16. The
United States intends to provide defendants with the discovery
materials to which they are entitled.
1. Severance: XXXXXXXX, XXXXXX,
XXXXXXXXXX.
2. Dismissal of Counts 1 and 20-35: XXXXXX.
3. Continuance: XXXXXXX, XXXXXXX, XXXXXXXX, XXXXXXXXXX.
4.Extension of time for filing further motions:
all defendants.
5. Rule 12(d) designation of evidence: XXXXXXXX,
XXXXXXXXXX.
6. Adopt co-defendant motions: XXXXXXX,
XXXXXXX,XXXXXXXX,
XXXXXXXXXX.
A. THE DEFENDANTS ARE PROPERLY JOINED AND THEIR
MOTIONS FOR SEVERANCE SHOULD BE DENIED.
1. Defendants Are Properly Joined Under Rule 8.
Defendant XXXXXX claims that the offenses are improperly
joined under Fed. R. Crim. P. 8(a), and that the defendants are
improperly joined under Fed. R. Crim. P. 8(b). In a case as this,
with a common illegal conspiracy at the core of all of the
substantive charges, joinder of the charges and the defendants is
proper.
Rule 8 is "to be broadly construed in favor of initial
joinder." United States v. Piaget, 915 F.2d 138, 142 (5th
Cir. 1990). See also United States v. Lueben,
812 F.2d 179, 187 (5th Cir.), vacated in part
on other grounds, 816 F.2d 1032 (5th Cir.
1987); United States v. Chagra, 754 F.2d 1186, 1188 (5th
Cir.), cert. denied, 474 U.S. 922 (1985). "The
propriety of joinder under Rule 8 is determined by the initial
allegations of the indictment, which are accepted as true absent
arguments of prosecutorial misconduct." United States v.
Harrelson, 754 F.2d 1153, 1176 (5th Cir. 1985).
Joinder of the offenses charged is proper under Rule 8(a),
which states:
Two or more offenses may be charged in the same
indictment or information in a separate count for each offense if
the offenses charged . . . are based on the same act or transaction
or on two or more acts or transactions connected together or
constituting parts of a common scheme or plan.
Fed. R. Crim. P. 8(a). When substantive offenses are within the
scope of a conspiracy, joinder of all of the charges in the same
indictment is proper. See Lueben, 812 F.2d at 187.
The offenses charged in this Indictment were all part of the
same scheme centered around defendant XXXXXXX's wholesale used car
business. The purpose of the scheme was to roll back the odometers
of used cars and to make money by selling them to other car dealers
at fraudulently inflated prices. Each of the substantive offenses
(the actual rollbacks, the failure to retain records, the
falsification of odometer statements, the use of the mails, and the
interstate transportation of forged and altered ownership
documents) was an important step in accomplishing this purpose.
The substantive counts and the conspiracy charged in the
Indictment are, on their face, based on "two or more acts or
transactions connected together or constituting parts of a common
scheme or plan." See e.g., United States v.
Fagan, 821 F.2d 1002, 1006-07 (5th Cir. 1987) (witness
intimidation charge properly joined with mail fraud charges where
witness intimidation was an effort to conceal the mail fraud),
cert. denied, 484 U.S. 1005 (1988); Lueben,
812 F.2d at 187 (joinder of counts charging false statements to
federally insured financial institutions with conspiracy and aiding
and abetting proper); Unites States v. Davis, 752 F.2d 963,
971-72 (5th Cir. 1985) (joinder of obstruction of justice count
with various fraud charges proper where obstruction was part of
scheme to avoid prosecution for those charges).
Joinder of the five defendants in this Indictment is similarly
proper under rule 8(b).
Two or more defendants may be charged in the same
indictment or information 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 Indictment charges each defendant with
playing an important role in the successful sale of cars with
rolled
back odometers to other dealers at a profit. Defendant XXXXXXX
purchased
vehicles appropriate for rollbacks; XXXXXX performed the actual
rollbacks; XXXXXXXX performed necessary alterations of ownership
documents; and XXXXXXXXXX provided a buyer for many of the rolled
back
vehicles. All of these activities were directed by XXXXXXX.
Whether each defendant participated in the purchase, rollback,
and sale of every vehicle charged in the Indictment is irrelevant.
"The fact that each count does not name all defendants and that
different combinations of co-conspirators participated in different
transactions . . . does not prevent all of the transactions from
being part of the same series of transactions for the purposes of
joinder." United States v. Merida, 765 F.2d 1205, 1218 (5th
Cir. 1985). The Fifth Circuit has repeatedly approved of the
joinder of multiple defendants in indictments charging conspiracies
with complexity equal to or greater than that in this case.
See e.g., United States v. Williams, 809 F.2d
1072, 1085-86 (5th Cir.) (complex drug and money laundering
conspiracy), cert. denied, 484 U.S. 896 (1987);
Merida, 765 F.2d at 1218-19 (drug conspiracy involving "a
single enterprise directed and controlled by a core managerial
team, not unlike a large corporation with several divisions");
United States v. Michel, 588 F.2d 986 (5th Cir.),
cert. denied, 444 U.S. 825 (1979) (large, diffuse
marijuana importation conspiracy).
Accordingly, defendant's arguments based on misjoinder are
meritless and must be rejected.
2. There Are No Grounds for Severance Under Rule
14.
Defendants XXXXXXXX, XXXXXX, and XXXXXXXXXX claim for a
variety of reasons that they are prejudiced by the joinder of
defendants and charges in this case, and have moved for a severance
under Rule 14. All of their claims are speculative and unfounded,
as discussed below.
"It is the general rule that persons who are indicted together
should be tried together." Harrelson, 754 F.2d at 1174. In
order to obtain a severance under Fed. R. Crim. P. 14, a defendant
must show "compelling prejudice," Piaget, 915 F.2d 138, 142
(quoting Harrelson, 754 F.2d at 1174, quoting United
States v. Crawford, 581 F.2d 489, 491 (5th Cir. 1978)), and
that he would be "unable to obtain a fair trial without a
severance," Harrelson, 754 F.2d at 1174. Any potential
prejudice must be balanced against the public's interest in
judicial efficiency and economy. See Id. at 1176;
United States v. Scott, 795 F.2d 1245, 1250 (5th Cir. 1986).
The defendants' severance motions simply do not make the necessary
showing.
a. Defendants XXXXXXXXXX and XXXXXXXX's Severance
Motions
Should Be Denied.
i. Rule 14 Severance
Defendants XXXXXXXXXX and XXXXXXXX each desire a severance
under Rule 14 because they maintain that other co-defendants would
give exculpatory testimony at their trials if tried separately. By
their own admission, however, XXXXXXXX and XXXXXXXXXX cannot at
this time show with any certainty that these co-defendants would in
fact testify at a separate trial, or demonstrate the nature of the
purported exculpatory testimony.[FN4] Indeed, they do not even
identify which co-defendants would testify. Because of the
speculative nature of these claims, they should be denied.
FN4. "At this point, counsel is unable to point with
specificity to evidence which co-defendants may offer in defense .
. . ." XXXXXXXX Motion, ¶ V; XXXXXXXXXX Motion, ¶ V.
See also ¶ III of each motion, which contains
speculation about testimony counsel has admittedly not reviewed.
To obtain a severance based on a need to use co-defendant
testimony,
a defendant must show a bona fide need for the
testimony,
the substance of that testimony, its exculpatory nature, and that
the
co-defendant would in fact testify at a separate trial. See
United States v. Duzac, 622 F.2d 911, 912 (5th Cir.),
cert. denied, 449 U.S. 102 (1980); United States
v.
Rice, 550 F.2d 1364, 1369 (5th Cir.), cert.
denied,
434 U.S. 954 (1977). If the defendant makes such a threshold
showing,
the court must:
(1) examine the significance of the testimony in
relation to the defendant's theory of defense; (2) assess the
extent of prejudice caused by the absence of the testimony; (3) pay
close attention to considerations of judicial economy; and (4) give
weight to the timeliness of the motion.
Duzac, 622 F.2d at 912.
Severance under Rule 14 is not appropriate to make
co-defendant testimony available if claims about that testimony are
speculative. Williams, 809 F.2d at 1084. See
also United States v. Morrow, 537 F.2d 120, 135 (5th
Cir. 1976), cert. denied, 430 U.S. 956 (1977). In
particular, the movant must show with some "reasonable certainty
that the proposed witnesses would, in fact, testify." Rice,
550 F.2d at 1370. XXXXXXXXXX and XXXXXXXX have made none of the
required showings, so their motions should be denied.
ii. Bruton Claims
XXXXXXXXXX and XXXXXXXX also move for a severance under
Bruton v. United States, 391 U.S. 123 (1968). In
Bruton, the Supreme Court held that a defendant's rights
under the Confrontation Clause are violated when the defendant is
incriminated by a co-defendant's confession admitted at a joint
trial. These motions are explicitly contingent on introduction of
such a confession. See ¶ VI of each motion. There is
no reason to believe that any confession will be introduced against
any defendant who will in fact stand trial in this case, which
confession would implicate another defendant who will also stand
trial. A severance on these grounds is therefore not required at
this time.
b.Defendant XXXXXX's Severance
Motion Should Be Denied.
Defendant XXXXXX has moved for a severance claiming that the
cumulative nature of the evidence pertaining to the various counts
and defendants will prejudice the jury's ability to make findings
of guilt on an individual, count-by-count basis, and because he
desires to testify in his own defense as to Counts 21-35, but not
as to Counts 1-19.[FN5] Both grounds are without merit.
FNX. XXXXXX is not charged in Counts 2-3, 20, or 29.
The cumulative nature of the evidence and the risk of
"spill-over"
justifies a severance only in the most extreme cases. The movant
must
make a compelling showing that a joint trial would result in
prejudice,
and that a cautionary instruction at the joint trial would not cure
that
prejudice. Piaget, 915 F.2d at 142; Scott, 795 F.2d
at
1250; Harrelson, 754 F.2d at 1174. Indeed, a cautionary
instruction is the preferred remedy for dealing with the risk of
cumulative evidence:
The pernicious effect of cumulation, however, is best
avoided by precise instructions to the jury on the admissibility
and proper uses of the evidence introduced by the Government. The
remedy of severance is justified only if the prejudice flowing from
a joint trial is clearly beyond the curative powers of a cautionary
instruction.
Morrow, 537 F.2d at 136.
There is nothing extraordinary or "compelling" about the
joinder of offenses or defendants in this case. Joint trials are
the rule rather than the norm in multi-count, multi-defendant
conspiracy cases, see Scott, 795 F.2d at 1250, and
XXXXXX has pointed to no justification why the additional effort
and expense of a separate trial are necessary in this case.
XXXXXX's request for a severance based on his desire to
testify as to certain counts but not others is also unsupported.
A defendant seeking a severance of charges on these grounds must
demonstrate "that he has both important testimony to give
concerning one count and strong need to refrain from testifying on
the other." Alvarez v. Wainwright, 607 F.2d 683, 686 (5th
Cir. 1979) (quoting Baker v. United States, 401 F.2d 958,
977 (D.C. Cir. 1968), cert. denied, 400 U.S. 965
(1970)). See also United States v. Forrest,
623 F.2d 1107, 1115 (5th Cir.), cert. denied, 449
U.S. 924 (1980). The showing must provide sufficient detail about
the nature of the movant's testimony to allow the court to
determine "that the claim of prejudice is genuine and to enable it
intelligently to weigh the considerations of 'economy and
expedition in judicial administration' against the defendant's
interest in having a free choice with respect to testifying."
Alvarez, 607 F.2d at 686 (quoting Baker, 401 F.2d at
977).
Here, XXXXXX's "bare allegation that he want[s] to testify
with respect to one count but not with respect to the other[s]," is
an inadequate basis for a severance. Forrest, 623 F.2d at
1115. His motion should therefore be denied.
B.EACH COUNT PROPERLY ALLEGES A SEPARATE STATUTORY
VIOLATION WITH DIFFERENT ELEMENTS THAN THE OTHER COUNTS.
Defendant XXXXXX has moved to dismiss Counts 1 and 20-35[FN6]
of the Indictment claiming that conduct associated with odometer
tampering schemes can only be prosecuted under specific statutes
dealing with odometer tampering, and not under fraud statutes of
more general applicability. On the contrary, the crimes charged in
Counts 1 and 20-35 are all distinct crimes supported by distinct
allegations. XXXXXX's motion must be denied because it lacks legal
foundation.
FN6. Because XXXXXX is not charged in Counts 2-3, 20,
and 29, he lacks standing to challenge Counts 20 and 29.
1.Mail Fraud and Other Substantive Crimes of Fraud
Can Be
Charged in One Indictment.
The mail fraud statute and other fraud statutes have long been
recognized as creating separate crimes where separate elements are
required. In Pereira v. United States, 347 U.S. 1 (1954),
for example, the Court held that 18 U.S.C. §§ 1341 and 2314
constitute separate crimes and a person can be convicted of both
"even though the charges arise from a single act or series of acts,
so long as each requires the proof of a fact not essential to the
other." Id. at 9. Similarly, in Edwards v. United
States, 312 U.S. 473 (1941), the Court upheld the Securities
Act of 1933 and mail fraud convictions despite the defendant's
argument that the Securities Act made it unlawful to use the mails
to defraud in the sale of securities. The Court rejected a "repeal
by implication" analysis. It held: "We see no basis for a
conclusion that Congress intended to repeal the earlier statute.
The two can exist and be useful, side by side." Id. at
484.
2. Statutes With General Prohibitions Are Not
Generally Viewed as Repealed by Implication When More Focused
Statutes Are Passed.
The Fifth Circuit has held that there is a presumption against
implicit repeal, and that a more specific statute repeals by
implication a more general statute only if
there is evidence either in the text of the [specific]
statute or its legislative history that the legislature intended to
repeal the earlier statute and simply failed to do so expressly.
Legislative intent to repeal must be manifest in the "positive
repugnancy between the provisions."
United States v. Cavada, 821 F.2d 1046, 1048 (5th Cir.)
(quoting
United States v. Batchelder, 442 U.S. 114, 122 (1981)),
cert. denied, 484 U.S. 932 (1987). A defendant may be
prosecuted under either or both of two overlapping statutes when
"[e]ach
statute is aimed at a slightly different form of misconduct."
United
States v. Anderez, 661 F.2d 404, 407 (5th Cir. 1981).[FN7]
FN7. The two pairs of statutes that the Fifth Circuit
found to be consistent in Cavada and Anderez each had
a greater degree of overlap than the statutes charged here. In
Cavada, the court held that it was appropriate to prosecute
an individual for forging a treasury check -- a felony -- rather
than forging an endorsement on a treasury check -- a misdemeanor --
in connection with the forgery of an endorsement on a treasury
check. In Anderez, the court found it appropriate to
prosecute an individual both for making a false statement under 18
U.S.C. § 1001 and for making a false currency report under 31
U.S.C §§ 1101 and 1058, in connection with the submission
of a false currency report to a customs agent.
3.Mail Fraud and Odometer Rollback Are
Different Offenses.
It is well established that the mail fraud statutes may be
violated by certain types of odometer rollback schemes, see
United States v. Shyrock, 537 F.2d 207 (5th Cir. 1976),
cert. denied, 429 U.S. 1100 (1977), and that mail
fraud and odometer tampering are distinct crimes, see
United States v. Oldfield, 859 F.2d 392 (6th Cir. 1988). In
Schmuck v. United States, 489 U.S. 705 (1989), the Supreme
Court held that a defendant charged with mail fraud was not
entitled to a lesser included offense instruction on odometer
tampering. Examining the elements of both crimes, the Court
concluded that
[t]he offense of odometer tampering includes the
element of knowingly and willfully causing an odometer to be
altered. This element is not a subset of any element of mail
fraud. Knowingly and willfully tampering with an odometer is not
identical to devising or intending to devise a fraudulent scheme.
Id. at 721-22.
In Oldfield, the Sixth Circuit was faced with virtually
the same argument XXXXXX raises here. The defendant had engaged in
an odometer tampering scheme that included use of the mails, and
was prosecuted for mail fraud under 18 U.S.C. § 1341. He
claimed that he should have been prosecuted instead under the
odometer tampering statutes, which at the time made odometer
tampering only a misdemeanor. Oldfield cited the rule of lenity.
He also argued that, in passing the odometer statutes, Congress
intended to limit the prosecution of offenses related to odometer
tampering to those statutes. The court rejected his arguments.
The court held that odometer tampering and mail fraud were distinct
crimes with different elements, and could be applied to the same
course of conduct, even though the result was to impose a penalty
greater than that provided in the odometer statute:
[I]t first should be noted that the two statutes are
not mirror images of each other, as the odometer tampering statute
does not require a showing that the mail was used to carry out the
offense. . . . Thus, every occurrence of odometer tampering is not
automatically an occurrence of mail fraud. If one engages in
odometer tampering alone, then he cannot be charged with mail
fraud. If, on the other hand, he also engages the mails to carry
out the fraudulent scheme of odometer tampering, then the mail
fraud statute should be available to the government.
859 F.2d at 398.[FN8]
FN8. The court went on to note that it had reviewed the
legislative history of the Truth in Mileage Act of 1986, Pub. L.
No. 99-579, 100 Stat. 3309, which increased the penalty for
odometer tampering to a felony, and concluded that there was no
indication that Congress intended the odometer tampering laws to be
the exclusive means of prosecuting individuals engaged in odometer
tampering. Oldfield, 859 F.2d 399.
4.Transporting Altered Titles Interstate
Violates 18 U.S.C. § 2314.
In Moskal v. United States, 111 S. Ct. 461 (1990), the
Supreme Court engaged in analysis similar to that above in holding
that 18 U.S.C. § 2314 applied to certain types of odometer
rollback schemes. Moskal had been convicted of violating section
2314 as a result of his participation in an odometer rollback
scheme that involved sending altered titles from Pennsylvania to
Virginia. He argued under the rule of lenity that the statute
should not be applied to his conduct. The Court found that section
2314 was not ambiguous and did in fact apply to Moskal's conduct:
[W]e have always reserved lenity for those situations
in which a reasonable doubt persists about a statute's intended
scope even after resort to 'the language and structure,
legislative history, and motivating policies of the statute.'
Examining these materials, we conclude that � unambiguously
applies to Moskal's conduct.
Id. at 465 (quoting Bifulco v. United States, 447
U.S.
381, 387 (1980) (citations omitted) (emphasis in original). The
Court
went on to note that "'title washing' operations are a perfect
example
of the 'further frauds' that Congress sought to halt in enacting
§
2314." Id. at 466.[FN9]
FN9. A 1984 amendment to 18 U.S.C. § 2311 makes it
even clearer that Congress intended section 2314 to augment the
odometer statutes in appropriate cases. That amendment added
"valid or blank motor vehicle title" to the definition of
"security" for purposes of section 2314. See Pub. L. No.
98-547, 98 Stat. 2754. The passage of this provision after
the passage of the odometer statutes (which were first passed in
1972) manifests Congressional intent to apply section 2314 to
odometer tampering schemes involving the transportation of forged,
altered, or falsely made title documents across state lines.
5.Each Group of Counts in the Instant Indictment
Charges Separate Offenses.
The offenses charged in the instant Indictment properly charge
separate offenses under the principles enunciated in these cases.
Each of the substantive offenses charged in the counts XXXXXX
desires dismissed has distinct elements, and is supported by
factual allegations different from the elements of the actual
rollback charges. The conduct charged in Count 20 involved
XXXXXXX's failure to keep odometer statements; Counts 21 through 25
involve the falsification of the mileage figures on odometer
statements provided to the purchasers of motor vehicles; Counts 26
through 30 allege the use of the mails in furthering the scheme to
defraud; and Counts 31 through 35 charge the transportation of
forged and altered ownership documents from Texas to a buyer in
California.[FN10]
FN10. Count 1 properly charges the defendants under 18
U.S.C. § 371 with conspiring to commit all of these offenses,
in addition to conspiring to roll back odometers. XXXXXX's
argument that he should be charged with conspiracy only under 15
U.S.C. § 1986 ignores the controlling fact that he is charged
with conspiring to commit Title 18 as well as Title 15 offenses.
Therefore, 15 U.S.C. § 1986 does not apply to his offense.
Rather, 18 U.S.C. § 371 forbids the conspiracy in which XXXXXX
participated.
Although each of the substantive offenses was an important step
in
defendants' odometer rollback scheme, each offense charges a
"different
form of misconduct." Anderez 661 F.2d at 407. As in
Oldfield, every occurrence of odometer tampering "was not
automatically an occurrence" of one of the other offenses. XXXXXX
has
failed to point to any Congressional intent that the odometer
tampering
laws are to apply to the exclusion of the other statutes charged,
and
has fallen woefully short of showing any "positive repugnancy
between
the provisions" in question. Cavada, 821 F.2d at 1048
(footnote
omitted).
XXXXXX's attempt to apply Busic v. United States, 446
U.S. 398 (1980), to this case is groundless. In Busic, the
defendant was convicted of assaulting a federal officer with a
dangerous weapon and of having used a firearm during the commission
of a felony. In effect, the defendant was punished twice for
precisely the same action: using a gun during an assault on a
federal officer. The Court held that absent some contrary showing
of Congressional intent, two statutes could not be employed in that
fashion to punish precisely the same conduct. Id. at
405-10. In the instant case, the issue whether Congress intended
different statutes to apply to the same conduct never arises:
different statutes are being applied to different conduct.
Odometer tampering, although at the core of defendants'
scheme, was only a part of their entire course of illegal conduct.
The Indictment properly charges separate violations for separate
acts, and XXXXXX's motion to dismiss should therefore be denied.
C.THE COURT SHOULD GRANT DEFENDANTS' MOTION FOR A
CONTINUANCE BECAUSE OF THE COMPLEXITY OF THIS CASE AND THE NEED FOR
ADDITIONAL TIME FOR PREPARATION OF AN ADEQUATE
DEFENSE.
Defendants XXXXXXX, XXXXXXX, XXXXXXXX, and XXXXXXXXXX have
moved for a continuance. None of the defendants are in custody,
and all have waived their right to a speedy trial.[FN11] Thus,
their interest in a speedy trial has been satisfied.
FN11. All defendants except XXXXXXX have filed written
Speedy Trial Act waivers. XXXXXXX's continuance request states
that he will waive speedy trial. On July 11, 1991, Carla Bell from
MX. XXXXXXX's attorney's office, informed the government that
XXXXXXX's Speedy Trial Act waiver would be filed the week of July
15, at the latest.
However, the Fifth Circuit has noted that the Speedy Trial Act
protects not only individual defendants, but the interest of the
public
in speedy disposition of criminal cases, and that the Act permits
continuances only on the basis of specific recorded findings.
United
States v. Kington, 875 F.2d 1091, 1107 (5th Cir. 1989) (citing
18
U.S.C. § 3161(h)(8)). In this case, the facts warrant granting
the
requested continuance, due to the complexity of the case, the
volume of
the evidence involved,[FN12] and the need for defense counsel to
familiarize themselves not only with the facts of this case, but
with
the application of the statutes involved. Defendants XXXXXXXX's and
XXXXXXXXXX's moving papers speak most directly to the complexity of
this
case and the need for additional time for the defense to adequately
prepare.[FN13]
FN12. Discovery will entail making available numerous
documents the United States obtained from banks, telephone
companies, the Texas Department of Highways and Public
Transportation, Division of Motor Vehicles, California Department
of Motor Vehicles, car dealerships, and others. Analysis of this
evidence is typically time consuming in that it entails detailed
examination of motor vehicle title histories and financial records
relating to the purchase and sale of individual vehicles. These
records frequently contain the purported mileage on a vehicle's
odometer at the time of a transaction.
FN13. Section IV of XXXXXXXX's and XXXXXXXXXX's
Continuance motion mis-speaks on one point. The investigator who
must travel to Houston to provide discovery is based in Kansas
City, Missouri, rather than Washington, D.C. Most of the
documentation which the United States has obtained in this case is
physically located in Kansas City. While the United States has
offered to bring all relevant material to Houston for defendants'
inspection, scheduling discovery has been difficult because of the
various schedules of counsel for the defendants.
In addition, the United States has in its possession certain
video and audio tapes which will be made available to one or more
of the defendants. Review of these tapes may also be time
consuming for the defendants.
In order to ensure that there will be no question as to the
adequacy of the Court's findings under § 3161(h)(8), the United
States has attached proposed "FINDINGS AND ORDER OF EXCLUDABLE
PERIOD UNDER SPEEDY TRIAL ACT" Civil
Resource
Manual at 165 for the Court's consideration.[FN14]
FN14. Because the defendants seek trial in September,
the United States requests the Court, in setting a trial date, to
consider a conflict of one of the undersigned attorneys for the
United States. Mr. Szeptycki will participate in a criminal trial
previously scheduled for September 16, 1991, in Biloxi,
Mississippi. That trial is expected to last approximately one
week, and will require about one week's preparation. Note that by
early September the trial status of both that case and the instant
case will be clearer. The United States is not suggesting that the
trial date should be extended past the end of September.
D. DEFENDANTS SHOULD BE ALLOWED TO FILE ADDITIONAL
MOTIONS ONLY UPON APPLICATION TO THE COURT JUSTIFYING FAILURE TO
FILE THE MOTIONS ON THE SCHEDULED JULY 2, 1991, DUE DATE FOR THEIR
MOTIONS.
All defendants have requested the Court to allow them to file
additional pretrial motions. These motions should be denied.
In general, defendants justified their requests on the ground
that pretrial discovery has not yet been provided. However, the
relief sought is an open-ended extension of the time for filing of
motions. Providing that relief would allow defendants to file at
a later date motions which could and should have been filed on July
2 had counsel acted diligently. In order to preserve the integrity
of the scheduling order, defendants should be required to file
additional motions only upon an application to the Court in which
they justify their failure to comply with the July 2, 1991, motion
date. If grounds for allowing the filing of additional motions
exist, they can be simply stated. Defendants' request for a
carte blanche to file additional motions of any
nature whatsoever should be denied.
E. THE UNITED STATES WILL PROVIDE A DESIGNATION OF
EVIDENCE PURSUANT TO RULE 12(d).
Defendants XXXXXXXX and XXXXXXXXXX have moved for an order
requiring the United States to designate the evidence it will use
in its case-in-chief that is discoverable under Fed. R. Crim. P.
16. The United States will inform defendants when it makes
discovery available to them of the evidence provided that is then
intended for use in our case-in-chief. This will afford the
opportunity to seek the Court's leave to file a motion to suppress,
as contemplated by Rule 12(d)(2).
F. DEFENDANTS' MOTIONS TO ADOPT EACH OTHER'S
MOTIONS
ARE FATALLY UNCLEAR AND SHOULD BE DENIED.
Defendants XXXXXXX, XXXXXXX, XXXXXXXX, and XXXXXXXXXX have
moved for an order adopting the motions of co-defendants.
Defendants XXXXXXX and XXXXXXX limit their requests to motions "as
the same may relate to the Defendant," and except from their
requests motions for continuance and speedy trial waivers.
Defendants XXXXXXXX and XXXXXXXXXX ask to adopt "each and every
motion filed by the co-defendants" in this case, but reserve "the
right to object to any motion not intended to be adopted or
incorporated by this motion." This latter exception appears
inconsistent with the "each and every motion" request.
Because it is totally unclear from the defendants' requests
which motions they do and do not wish to incorporate,[FN15] the
United States opposes their motions. The United States would not
oppose a motion by any defendant to join in any particular motion,
specifically identified, filed by another defendant. The Court and
the United States should not be required to guess which motions are
"intended" to be adopted, or which motions are viewed as "relating"
to a defendant who did not file the motion.
FN15. For example, one can only guess whether XXXXXXX
and XXXXXXX mean to adopt the severance motions filed by XXXXXX,
XXXXXXXX, and XXXXXXXXXX. In addition, if they do intend to adopt
those motions, it would be unclear who they viewed as severable
from whom.
CONCLUSION
The motions for severance and dismissal of counts should be
denied. The motions for a continuance should be granted, and the
Court should enter appropriate findings under the Speedy Trial Act.
A proposed set of findings and order is submitted herewith. The
motions for a blanket extension of the time for filing motions
should be denied. The motions seeking identification of evidence
to be used at trial should be declared moot in light of the United
States' intent to provide the information sought. The motions to
adopt unspecified co-defendant motions should be denied.
Dated: July 11, 1991 Respectfully submitted,
Ronald G. Woods
United States Attorney
By:
EDWARD F. GALLAGHER, III
Assistant United States Attorney
KENNETH L. JOST
Attorney
LEON F. SZEPTYCKI
Attorney
Office of Consumer Litigation
U.S. Department of Justice
Room 6104 Todd Building
550 11th Street, N.W.
Washington, D.C. 20004
(202) 307-0048
[cited in USAM 4-8.310]
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