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United States v. Simmons

United States District Court, E.D. Virginia, Norfolk Division

December 14, 2017




         This matter comes before the Court on various pre-trial motions filed by Defendants Simmons, Mitchell, and Lassiter. Much of the relief requested in the pending motions was originally sought in a motion filed by an individual Defendant, but subsequent to the filing of such a motion, one or more of the remaining Defendants filed a "motion to adopt." The numerous requests to "adopt" motions filed by other Defendants named in the case are all GRANTED as to adoption. The relief requested in each motion filed by a lone Defendant, as well as the relief requested by Defendants subsequently deemed to have adopted/joined in a previously filed motion, is addressed below.

         A. Motion to Dismiss Count 38

         Defendant Simmons has moved to dismiss Count 38 of the second superseding indictment, a count that alleges witness tampering in violation of 18 U.S.C. § 1512(b). ECF No. 194. Simmons asserts that the phrasing of the charged threat to the alleged witness is not specific to an individual, is "too remote" to sustain prosecution, and that such count is "implausible on its face" because the Government would never house an adverse witness in the same jail where a defendant is housed. ECF No. 195, at 2-3. The Government responds in opposition, arguing that Simmons' motion improperly attacks the merits of the factual allegations in the indictment based on speculative presumptions. ECF No. 207, at 2-3.

         For the reasons stated in greater detail in the Government's brief, ECF No. 207, Simmons' motion is DENIED because Count 38 tracks the statutory language of the charged offense, provides the location of the threat, the approximate date of the threat, and the nature and substance of the threat, thereby putting Simmons on notice of sufficient details of the charged crime.[1] See United States v. Thomas, 367 F.3d 194, 197 (4th Cir. 2004) ("To warrant dismissal of the indictment, [the defendant] would need to demonstrate that the allegations therein, even if true, would not state an offense."); United States v. Matzkin, 14 F.3d 1014, 1019 (4th Cir. 1994) ("An indictment that tracks the statutory language is ordinarily valid" because "[o]ne of the principal purposes of an indictment is to apprise the accused of the charge or charges leveled against him so he can prepare his defense.") (citations omitted). To the extent the evidence presented at trial by the Government in its case-in-chief demonstrates the evidentiary deficiencies Simmons alleges in his motion to dismiss, the Court will consider a future motion at the appropriate time.

         B. Motions to Dismiss Non-Economic Crimes

         All three defendants have moved to dismiss Counts 3-9, 22-30, and to strike numerous "Overt Acts" from the charged RICO conspiracy (Count 1), based on their assertion that this Court lacks subject matter jurisdiction over these "non-economic" violent crimes that do not affect interstate commerce. ECF Nos. 153, 158, and 202. Defendants' motions, however, properly acknowledge that Fourth Circuit precedent is contrary to their position. United States v. Cornell, 780 F.3d 616, 621-22 (4th Cir.), cert, denied, 136 S.Ct. 127 (2015). Defendants' filings therefore indicate that their motions are advanced to "preserve the issue" going forward due to a conflict among federal circuit courts. ECF No. 153, at 3. In light of Cornell, Defendants' motions to dismiss are DENIED.[2]

         C. Motions to Exclude Custodial Statements

         Defendants Simmons and Mitchell have each moved to exclude the custodial statement of the other, arguing that admission of such evidence would violate Bruton v. United States, 391 U.S. 123 (1968). ECF Nos. 143, 155. Additionally, Defendant Lassiter has argued in support of a motion to sever that the admission of Simmons' statement violates Bruton. ECF No. 222. The Government concedes that portions of the disputed custodial statements likely violate Bruton, (at least with respect to Simmons' statements implicating Mitchell, and Mitchell's statements implicating Simmons) but argues that neither exclusion of the statements nor severance is warranted, instead asserting that to the extent such statements facially incriminate a co-Defendant, they can be, and will be, redacted by the Government and will be presented to the Court at a later time for a ruling on their compliance with Bruton. ECF No. 183, at 6-8. Accordingly, the two pending motions raising this issue, and the portion of Lassiter's severance motion raising a Bruton argument, are TAKEN UNDER ADVISEMENT until a time when the Court can evaluate the proposed redactions.[3] ECF Nos. 143, 155, 221.

         D. Motions to Dismiss Counts 20 & 21

         All three Defendants have either moved to dismiss Counts 20 and 21, or moved to exclude evidence of the crimes charged in Counts 20 and 21. ECF No. 135, 161, 172, 201.[4] Defendants argue that the charged murder in aid of racketeering and associated use of a firearm were not committed in furtherance of any gang/Enterprise activity, and that the evidence produced by the Government in discovery not only fails to prove a conspiracy, but suggests that even if the Government can prove that defendant Mitchell killed the victim identified in these counts, it was a rogue act committed by a lone individual. ECF No. 13 6, at 2-3. The Government responds in opposition, asserting that a motion to dismiss may not be based on a defendant's interpretation of discovery materials. ECF No. 191, at 10; see United States v. Engle, 676 F.3d 405, 415 (4th Cir. 2012) (rejecting the defendant's pretrial dismissal motion because it was clearly based "on the pretrial 'evidence' that had thus far been produced, " explaining that Rule 12 dismissal is generally limited to attacking "the allegations contained in the indictment" and should not be based on "a determination of facts that should have been developed at trial") (citations and quotation marks omitted). The Government further asserts that it is not required to prove a conspiracy in order to secure convictions on these counts, nor is it required to prove that the shooting charged in these counts furthered the goals of the Enterprise; rather, the Government must ultimately prove, and at this time need only charge, that the murder was committed by Mitchell "for the purpose of gaining entrance to" and/or "maintaining and increasing position in" the gang/Enterprise. ECF No. 191, at 10-11; see United States v. Fiel, 35 F.3d 997, 1005 (4th Cir. 1994) (rejecting the defendants' assertion that "the violent crimes charged must be committed for the purpose of aiding or furthering the racketeering activity, " instead finding that the required link between the violent crime and the RICO enterprise is that the "proscribed act of violence" was committed "in order to maintain or increase [a defendant's] position in the enterprise"); United States v. Barnett, 660 Fed.Appx. 235, 242 (4 th Cir. 2016) ("The purpose requirement isxsatisfied if the jury could properly infer that the defendant committed his . . . crime because he knew it was expected of him by reason of his membership in the enterprise or that he committed it in furtherance of that membership.'" (quoting Fiel, 35 F.3d 1004)); see also United States v. Tipton, 90 F.3d 861, 890-91 (4th Cir. 1996) (rejecting the defendant's assertion that the violent acts were based on a personal grievance rather than an "enterprise-related 'purpose, '" the latter of which included retaliatory action "critical to the maintenance of one's position in the enterprise").

         Having reviewed the relevant case law, for the reasons set forth herein and in the Government's brief in opposition, the Court DENIES the pretrial motions to dismiss Counts 20 and 21 as well as the motion to exclude evidence in support of such counts. Any motions predicated on failure of proof at trial will be considered at the appropriate time.

         E. Motions to Sever

         Defendants Simmons and Lassiter have moved to sever for trial Counts 2, 20, 21, and 31-38 of the second superseding indictment pursuant to Rules 8 and 14 of the Federal Rules of Criminal Procedure. ECF Nos. 147, 200. Additionally, Defendant Lassiter has moved to sever his trial from the trial of his co-Defendants. ECF No. 221. The Government opposes severance of counts and further opposes severance of co-Defendant Lassiter from the joint trial. ECF Nos. 191, 230.

         1. Joinder and Severance Standards

         a. Rule 8(a) - Joining Counts

         Federal Rule of Criminal Procedure 8 (a) provides that an "indictment or information may charge a defendant in separate counts with 2 or more offenses 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). Such rule permits "very broad joinder because of the efficiency in trying the defendant on related counts in the same trial." United States v. Cardwell, 433 F.3d 378, 385 (4th Cir. 2005) (citations and quotation marks omitted). "Moreover, joinder is the rule rather than the exception, because the prospect of duplicating witness testimony, impaneling additional jurors, and wasting limited judicial resources suggests that related offenses should be tried in a single proceeding." United States v. Mir, 525 F.3d 351, 357 (4th Cir. 2008) (citations and quotation marks omitted).

         When offenses are purported to be "connected with or constitute parts of a common scheme or plan, " the Fourth Circuit has interpreted Rule 8(a) "flexibly, requiring that the joined offenses have a * logical relationship' to one another." Cardwell, 433 F.3d at 385 (quoting United States v. Hirschfeld, 964 F.2d 318, 323 (4th Cir. 1992)). A "mere temporal relationship" is insufficient to show that two crimes are "logically related, " but evidence of a temporal relationship, combined with additional evidence, may provide the required link between the two crimes. Id. at 386-87; see also United States v. Williams, No. 4:09cr81, 2010 WL 4702351, at *2 (E.D. Va. Oct. 28, 2010) ("[I]llegal activities performed by members of street gangs in furtherance of such gang have a 'logical relationship' to each other . . . .").

         b. Rule 8(b) - Joining Defendants

         Individual defendants are properly joined for trial when they are alleged to have participated in the "same series of acts or transactions constituting an offense or offenses, " Fed. R. Crim. P. 8 (b), and " [t] here is a preference in the federal system for joint trials of defendants who are indicted together." Zafiro v. United States, 506 U.S. 534, 537 (1993) (citations omitted). Moreover, joinder of defendants "is highly favored in conspiracy cases, over and above the general disposition supporting joinder for reasons of efficiency and judicial economy." United States v. Dinkins, 691 F.3d 358, 368 (4th Cir. 2012) (citation omitted). The Fourth Circuit therefore generally "adhere[s] to the rule that defendants charged with participation in the same conspiracy are to be tried jointly." United States v. Akinkoye, 185 F.3d 192, 197 (4th Cir. 1999).

         c. Rule 14(a) - Severance

         Even if joinder of counts is proper under Rule 8(a), and/or joinder of defendants is proper under Rule 8(b), Rule 14(a) provides a potential basis for severance. A district court may-sever counts of an indictment, sever the trials of different defendants, or provide other proper relief, if joinder "appears to prejudice a defendant or the government." Fed. R. Crim. P. 14(a). The moving party has the burden to establish that Rule 14 severance is appropriate, andw [i] t is not enough for [a] defendant [seeking severance] to show that severance offers him 'a better chance of acquittal'" on one or more charges. Cardwell, 433 F.3d at 387 (quoting United States v. Reavis, 48 F.3d 763, 767 (4th Cir. 1995)). Instead, when Rule 8 joinder is proper, Rule 14 severance should be grantedwxonly if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.'" United States v. Qazah, 810 F.3d 879, 891 (4th Cir. 2015) (emphasis added) (quoting Zafiro, ...

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