Summary
In United States v. Huffine, 2002 U.S. Dist. LEXIS 11973, at *3-8 (E.D. La. June 26, 2002), a single defendant was charged, hence Rule 8(a) was in fact applicable.
Summary of this case from United States v. FazzioOpinion
Criminal Action No. 02-93, Section "J"
June 26, 2002
ORDER AND REASONS
The Defendant, Guy Huffine, was indicted on April 11, 2002, in a ten-count indictment. On June 19, 2002, the Court conducted a hearing on Defendant's Motion for Relief from Misjoinder and Prejudicial Joinder of Offenses (Rec. Doc. 11). Having considered the arguments made at the hearing, the memoranda, and the applicable law, the Court concludes, for the reasons that follow, that Defendant's motion should be GRANTED in part.
Background
Counts 1 through 4 of the indictment charge the defendant with mail fraud in violation of 18 U.S.C. § 1341 and 1342. Those counts involve Defendant's alleged scheme through his roofing and construction company to defraud the Jefferson Parish Public School System, with which the defendant had entered into a contract to repair and improve the roof on L. W. Higgins High School. The Government alleges that the defendant schemed to defraud the System by submitting false and inflated invoices through the United States Postal Service regarding the cost of materials purchased by the defendant's company to perform the work. According to the Government, the defendant accepted payments based upon the false and inflated figures.
Counts 5 through 8 of the indictment charge the defendant, as the owner and operator of Huff me Roofing and Construction, Inc., with failing to pay to the IRS collected and withholding taxes for the 1997 and 1998 tax years. Specifically, the Government alleges that the defendant failed to properly account for and pay over to the IRS the payroll taxes collected and withheld from the wages of Defendant's employees, in violation of 26 U.S.C. § 7202 and 18 U.S.C. § 2.
Counts 9 and 10 of the indictment charge the defendant with making false statements on individual income tax returns for the 1997 and 1998 tax years, in violation of 26 U.S.C. § 7206 (1). The Government alleges in those counts that the defendant substantially under-reported his personal income derived from Hut fine Roofing and Construction, Inc. for those tax years.
Defendant has now moved the Court to sever Counts 1 through 4, 5 through 8, and 9 through 10, arguing that the three sets of counts involve three very different and distinct offenses that were not properly joined under Fed.R.Crim.P. 8(a). Alternatively, even if the Court were to find that the initial joinder was proper, the defendant argues that the prejudicial spill-over' effect of trying all the counts together, mandate a severance pursuant to Fed.R.Crim.P. 14.
The Government, on the other hand, asserts that joinder was proper because the offenses charged are of the same and similar character, as all the counts involve schemes to defraud through the use of false representations to secure a monetary advantage, whether from the Jefferson Parish Public School System or the IRS. According to the Government, all the offenses charged are acts constituting parts of a common plan involving the increase of funds in the defendant's corporate account for the personal benefit of the defendant through a pattern of false representations.
Discussion
A. Joinder of Offenses Under Rule 8(a)
Federal R. Crim. P. 8(a) provides:
Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or 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.
In the Fifth Circuit, Rule 8(a) is broadly construed in favor of joinder. United States v. Fortenberry, 914 F.2d 671, 675 (5th Cir. 1990). Moreover, the Fifth Circuit has noted that the transaction requirement of rule 8(a) is flexible and "[i]t may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship." United States v. Park, 531 F.2d 754, 760-61 (5th Cir. 1976).
However, for joinder of offenses under Rule 8(a) to be proper, the indictment must meet the rule's requirement that the offenses either be of a similar nature or that the defendant's separate acts be part of a common scheme. Furthermore, because Rule 8(a) is concerned with the propriety of joining offenses in the indictment, the Court should not look beyond the allegations in the indictment to determine whether the joinder is proper. See United States v. Lane, 474 U.S. 438, 447, 106 S.Ct. 725, 731, 88 L.Ed.2d 814 (1986); United States v. Kaufman, 858 F.2d 994, 1003 (5th Cir. 1988). In making the determination of whether separate offenses involve acts or transactions that are part of a common scheme, the Fifth Circuit has suggested the Court resolve the question by addressing the relatedness of the facts underlying each offense. See United States v. Lane, 735 F.2d 799, 804 (5th Cir. 1984). When the facts underlying each offense are closely connected so that evidence of the same facts is necessary to establish each offense, joinder is most likely proper. Id. When there is no substantial identity of facts between the two offenses, then joinder is improper. Id.
Upon examining the indictment in the case at bar, the Court finds that it fails to allege sufficiently commonality between the defendant's underlying acts with respect to the mail fraud counts (Counts 1 through 4) and the remaining tax-related counts. While the Government is correct that joinder of tax offenses with other criminal offenses is proper when the income derived from one criminal offense forms the basis of a tax charge, United States v. Diaz-Munoz, 632 F.2d 1330 (5th Cir. 1980), the indictment in this case does not make that allegation of connexity. In fact, the indictment makes no connection between the mail fraud and tax charges, other than it demonstrates that all of the offenses occurred in the same years and that the defendant's company played a role in the separate offenses.
While the Court's determination of whether Rule 8 joinder is proper is based on the allegations in the indictment, the Court notes that even during the hearing on Defendant's motion, the Government failed to allege specifically what role, if any, the income derived from the charged mail fraud played in the tax allegations.
Moreover, the Court is not persuaded by the Government's argument that the mail fraud and the tax charges are of the same or similar nature simply because they both involve false statements and the defendant's motive to increase his income. To accept that definition and describe the offenses charged in this indictment as similar is to generalize the term "similar" in such a manner as to render it and Rule 8(a) void of any real content. See United States v. Randazzo, 80 F.3d 623, 627-28 (1st Cir. 1996) (finding that defendant's false statements in the mislabeling of shrimp for commercial sale was not similar in nature to the defendant's false statements made on corporate tax returns during the same time period, even though the motive of both was for the defendant's personal profit). Cf. United States v. Fortenberry, 919 F.2d 923 (5th Cir. 1990) (concluding that separate offenses that were both weapons violations were of a similar nature under Rule 8(a)). Accordingly, the Court concludes that joinder of the mail fraud offense with the tax offenses is improper under Rule 8.
However, the Court disagrees with the defendant that there is no similarity or connection between the two separate tax offenses charged in the indictment. Counts 5 through 8 and 9 through 10 involve the defendant's dealings with the IRS and alleged failure to properly pay certain taxes in the 1997 and 1998 tax years. There is clearly some overlap as to the tax charges brought against the defendant, and the Court concludes that the offenses are of a similar enough nature to make joinder proper.
B. Rule 14 and Relief from Prejudicial Joinder
The defendant argues alternatively that, even if joinder under Rule 8(a) is proper, the three offenses should still be severed under Rule 14, which provides in relevant part:
If it appears that a defendant . . . is prejudiced by a joinder of offenses . . . in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts . . . or provide whatever other relief justice requires.
While the Court finds that joinder of the mail fraud counts and the tax charges is not proper under Rule 8, the Court notes that the failure of the Government to demonstrate the connection between the mail fraud counts and the tax charges in this case would require severance under Rule 14 even if joinder had not been challenged under Rule 8. See United States v. Holloway, 1 F.3d 307, 310 (5th Cir. 1993) (finding the district court abused its discretion in not severing counts when there was no connection between them)
As to the tax charges in Counts 5 through 10, the Court does not find that the defendant will be prejudiced by a jury trying these counts together. Relief from prejudicial joinder may be had under Rule 14 if the defendant can demonstrate specific and compelling prejudice. United States v. Krenning, 93 F.3d 1257, 1267 (5th Cir. 1996). Further, the prejudice must be of a type against which the Court is unable to afford protection. United States v. Morrow, 177 F.3d 272, 290 (5th Cir. 1999). In this case, the Court finds that the defendant has not met that burden with respect to the tax charges. The charges are clearly similar enough to be tried together without any unduly prejudicial spill-over. Further, while of a similar nature, the two tax offenses are distinct enough that a jury would not have difficulty compartmentalizing the evidence as to the two separate offenses. For these reasons, the Court denies Defendant's motion to sever the tax charges under Rule 14.
Conclusion
For the reasons given herein, the Court hereby GRANTS in part Defendant's motion for relief from misjoinder on the grounds that that joinder of the mail fraud offense (Counts 1 through 4) with the tax charges (Counts 5 through 10) is improper under Rule 8(a).
Defendant's motion is otherwise DENIED as the tax charges are properly joined in the single indictment and Defendant has not demonstrated that a severance of those two offenses is required under Rule 14.