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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-20612-CR-SEITZ Magistrate Judge John J. O’Suliivan
UNITED STATES OF AMERICA vs. TRAIAN BUJDUVEANU, Defendant. ________________________________/
GOVERNMENT’S RESPONSE TO DEFENDANT TRAIAN BUJDUVEANU’S MOTION FOR SEVERANCE The United States of America, through undersigned counsel, files this Response to Defendant Bujduveanu’s Motion for Severance, filed September 8, 2008 (D.E.77). For the reasons that follow, this Court should deny the defendant’s Motion. It is the defendant/movant’s burden to establish the basis for the extraordinary remedy of a severed trial. The defendant, however, fails to cite to any specific examples of evidence that will be offered at trial which would cause such prejudice as to violate his Sixth Amendment rights. He, therefore, has not met this heavy burden, and his Motion should be denied. Factual Background On July 3, 2008, a Federal Grand Jury in Miami, Florida, indicted Defendant Bujduveanu, along with his co-defendants, Hassan Saied Keshari, Kesh Air International Corp., and Orion Aviation Corp. In that indictment, the defendants were charged with: (1) conspiracy to violate the International Emergency Economic Powers Act (“IEEPA”) by violating the United States Iran Trade Embargo and to violate the Arms Export Control Act, in violation of 50 U.S.C. §§ 1702 and 1705(a),
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31 C.F.R. pts. 560.203 and 560.204, 22 U.S.C. § 2778(b)(2), and 22 C.F.R. §§ 121.1, 123.1, and 127.1, all in violation of 18 U.S.C. § 371; (2) violations of the IEEPA by violating the U.S. Iran Trade Embargo, in violation of 50 U.S.C. §§ 1702 and 1705(a), 31 C.F.R. pts. 560.203 and 560.204, and Executive Orders 12957, 12959, and 13059, and 18 U.S.C. § 2; (3) violations of the Arms Export Control Act, in violation of, 22 U.S.C. §§ 2778(b)(2) and (c), 22 C.F.R. §§ 121.1, 123.1, and 127.1, and 18 U.S.C. § 2; and (4) making false statements to Bureau of Immigration and Customs Enforcement and U.S. Department of Commerce officials, in violation of 18 U.S.C. § 1001(a)(2). (D.E. 25 at 5–14.) Specifically, the Indictment alleges that Defendant Keshari took orders from customers in Iran for purchases of American made aircraft parts to be shipped to Iran. (Id. at 6.) Keshari (through his company Kesh Air) placed orders with Defendant Bujduveanu (and his company Orion) to buy the aircraft parts. (Id.) Bujduveanu filled the orders and sent them to Keshari’s Iranian customers by way of Dubai, United Arab Emirates (“UAE”). (Id. at 7.) The indictment specifically identifies more than four different transactions in which Keshari solicited quotes for and purchased military aircraft parts from Bujduveanu, and Bujduveanu shipped the parts to Iran via Dubai in six different shipments. Defendant Bujduveanu now moves, pursuant to Federal Rules of Criminal Procedure 8(b) and 14(a), to sever his trial from that of co-Defendant Keshari. Argument Defendant Bujduveanu offers two bases for his severance request. First, citing Bruton v. United States, 391 U.S. 123 (1968), Bujduveanu contends that his Sixth Amendment confrontation rights will be violated because the government will offer at trial “specific and compelling”
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statements made by Keshari that implicate Bujduveanu, without affording Bujduveanu the right to cross-examine Keshari. (Id. at 2–4.) Second, Bujduveanu contends that he will be prejudiced by the spillover from evidence admitted against Kershari but that “does not involve” him. (Id. at 4–6.)
Aside from these general allegations, Bujduveanu does not point to any specific statement or evidence that the government plans on introducing at trial that will cause him compelling prejudice. In any event, neither the Bruton argument nor the spillover one warrants a severed trial in this case. I.
Bujduveanu and Keshari Were Properly Joined Under Rule 8(b). Before addressing the Bruton and spillover arguments, though, one other matter warrants
clarification. Bujduveanu appears to also suggest that severance is warranted under Federal Rule of Criminal Procedure 8(b) because he and Keshari were not properly joined in the indictment.1 He cites Rule 8 as the basis for the severance motion on page one, and later states that where there is “no nexus between the several crimes” alleged in the indictment, the “‘failure of organization’ due to misjoinder can prevent a jury from ‘evaluat[ing] the position of each defendant separately’ and cause ‘serious problems and substantial confusion at trial.’” (Id. at 1, 6) (quoting Shaffer v. United States, 362 U.S. 511, 523 (1959) (Douglas, J., dissenting), and United States v. Diaz-Munoz, 632 F.2d 1330, 1337 (5th Cir. 1980)). The implication seems to be that there is an insufficient
1
Federal Rule of Criminal Procedure 8(b) provides: “The indictment or information may 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. The defendants may be charged in one or more counts together or separately.” Fed. R. Crim. P. 8(b). 3
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nexus—organization—between Bujduveanu and Kesahri’s crimes to join them in a single indictment under Rule 8(b). To the extent Bujduveanu is arguing that the trial should be severed because he and Keshari are misjoined under Rule 8(b), he is incorrect as a matter of law. The Eleventh Circuit has said the following about conspiracies and Rule 8(b) joinder: The pertinent focus in misjoinder claims of this type is not upon the nature of the offenses that are joined together, but upon whether the terms of Rule 8(b) have been met, that is to say, whether the offenses arose from the “same series of acts or transactions.” In order to constitute a “series” of acts or transactions under Rule 8(b), there must be “substantial identity of facts or participants” among the various offenses. United States v. Marionneaux, supra, 514 F.2d at 1249. It is well established that substantive offenses arising out of a single conspiracy can properly be joined, since the conspiracy provides a common link connecting the offenses. United States v. Phillips, supra, 664 F.2d at 1016; United States v. Gentile, supra, 495 F.2d at 631–632; Gordon v. United States, 438 F.2d 858, 878 (5th Cir. 1971); United States v. Adams, 581 F.2d 193, 197 (9th Cir. 1978); United States v. Bernstein, 533 F.2d 775, 789 (2d Cir. 1976); United States v. Somers, 496 F.2d 723, 729–730 (3d Cir. 1974); 1 C. Wright, Federal Practice and Procedure § 144 (1969). In other words, the fact that the substantive offenses emanated from a single, central conspiracy is a sufficient indication that substantial identity of facts or participants exists among the offenses. United States v. Kopituk, 690 F.2d 1289, 1313–14 (11th Cir. 1982) (footnote and some citation material omitted). Put another way, “[a]ll courts agree that a conspiracy count normally provides a sufficient allegation that the defendants engaged in the same series of acts or transactions, making joinder permissible. As courts succinctly put it, co-defendants charged with conspiracy should generally be tried together.” 1A Charles Alan Wright et al., Federal Practice and Procedure Criminal § 144 (3d ed.). In this case, as recounted above, Bujduveanu and Keshari are alleged to have engaged in a single conspiracy to violate the Iran Trade Embargo and the Arms Export Control Act. Keshari was
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the broker in the United States for Iranians purchasing military aircraft parts; Bujduveanu provided the aircraft parts and shipped them to the Iranian contacts by way of Dubai, while evading applicable federal export restrictions. They worked in concert to avoid federal reporting regulations and restrictions on trading with Iran and on trading arms with anyone. As the Kopituk Court explained, where two or more defendants are joined in an indictment based on a single conspiracy, the “same act or transaction” requirement of Rule 8(b) is necessarily met “since the conspiracy provides a common link connecting the offenses.” Kopituk, 690 F.2d at 1313. All courts of appeals are uniform on this point: a conspiracy charge in the indictment by definition means that two or more defendants “are alleged to have participated in the same act or transaction, or in the same series of acts of transactions, constituting an offense or offenses,” under Rule 8(b). Fed. R. Crim. P. 8(b). To the extent Bujduveanu argues otherwise in his motion to sever, he is simply wrong. II.
Bujduveanu Has Not Met His Burden to Establish Compelling Prejudice Warranting Severance of the Trial. Bujduveanu also contends that the Court should sever the trials based on Federal Rule of
Criminal Procedure 14(a).2 Whereas a “Rule 8(b) claim questions the propriety of joining two or more defendants in a single indictment in the first instance . . . a Rule 14 claim assumes that initial joinder of the defendants was proper but challenges their joint trial as unduly prejudicial.” United States v. Morales, 868 F.2d 15621567 (11th Cir. 1989).
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Federal Rule of Criminal Procedure 14(a) provides: “If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires.” Fed. R. Crim. P. 14(a). 5
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Rule 14 prejudice is a difficult case for a defendant to make. There is a presumption that those who are indicted together should be tried together. United States v. Baker, 432 F.3d 1189, 1236 (11th Cir. 2005) (“In practice, the general rule is that defendants who are jointly indicted should be tried together . . . .”); Morales, 868 F.2d at 1571 (“It is a well-settled principle that it is preferred that persons who are charged together should also be tried together.”). The presumption is particularly strong in conspiracy cases, like this one. United States v. Pedrick, 181 F.3d 1264, 1272 (11th Cir. 1999) (“The Government’s brief correctly emphasizes and we reaffirm the preference for joint trials of co-conspirators.”); United States v. Walker, 720 F.2d 1527, 1533 (11th Cir. 1983) (“The general rule is that defendants who are jointly indicted should be tried together, and this rule applies with particular force to conspiracy cases.”). The Eleventh Circuit explained the reasons for the presumption in conspiracy cases, as follows: The bulk of the evidence [is] relevant to demonstrating the existence and scope of the conspiracy itself. In order to completely shield each defendant from the potentially prejudicial effect of evidence of violence in which such defendant was not directly involved, the court would have had to order separate trials for each of the defendants, and many of the witnesses would have had to testify in multiple proceedings. The need to avoid such wasteful expenditure of judicial resources is the basis for the default rule that co-conspirators should be tried together. Baker, 432 F.3d at 1238. “In deciding a severance motion, a district court must balance the right of the defendant to a fair trial against the public’s interest in efficient and economic administration of justice. Severance is granted only when the defendant can demonstrate that a joint trial will result in ‘specific and compelling prejudice’ to the conduct of his or her defense, resulting in ‘fundamental unfairness.’” Id. at 1236 (citations omitted). “The burden is on the defendant to ‘demonstrate that a joint trial will
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result in specific and compelling prejudice to the conduct of his defense.’” United States v. Schlei, 122 F.3d 944, 984 (11th Cir. 1997) (citation omitted). Bujduveanu contends that he will suffer prejudice should he be tried jointly with Keshari because: (1) the government will introduce statements Keshari made implicating him in the conspiracy without the opportunity to cross-examine Keshari, in violation of his Sixth Amendment confrontation right, as extended by Bruton; and (2) the evidence introduced against Keshari will spillover with the jury to prejudice him. Aside from these general allegations, however, Bujduveanu does not point to any specific statement Keshari made or evidence against Keshari in support of the severance motion. As demonstrated below, neither argument satisfies defendant's burden of demonstrating a specific and compelling prejudice, and his motion to sever should therefore be denied. A.
Bruton
Bujduveanu’s contention that he will be prejudiced by the government’s introduction at trial of Keshari’s statements suffers from a fatal defect: Bujduveanu has not pointed to any statement made by Keshari that would “directly inculpate” the two of them. In fact, he doesn’t point to any statement made by Keshari at all—inculpatory, exculpatory, direct, or indirect. Bujduveanu acknowledges this by offering nothing more than the following general allegation of prejudicial statements made by Keshari in support of his Bruton-based severance claim: The prejudice Traian Bujduveanu will suffer from the introduction of his codefendant’s statements and/or voluminous evidence will be . . . ‘specific and compelling’ . . . . The statements and testimony that will be offered at trial will no doubt prejudice the jury against Mr. Bujduveanu. (DE 77 at 3–4.) That is the extent of the defendant’s allegations.
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Bujduveanu, as noted above, bears the burden of establishing that he will suffer specific and compelling prejudice such that he will not receive a fair trial, in order to overcome the strong presumption in favor of joint trials for co-conspirators. At the very least, that burden requires Bujduveanu to point to any specific statement made by Keshari that would “directly inculpate” the two defendants; absent that, there is no basis the sever the trial based on Bruton. See United States v. Hicks, 524 F.2d 1001, 1003 (5th Cir. 1975). How else is the Court able to evaluate whether there is a Bruton problem in this case? United States v. Avery, 760 F.2d 1219 (11th Cir. 1985), the one decision relied on by Bujduveanu to support Bruton-based severance, illustrates the problem for Bujduveanu. In that case, the defendants were charged with conspiring to distribute marijuana.
The Court found a
Bruton violation because the government introduced grand jury testimony by one defendant stating that both defendants had “gotten the dope . . . to sell to those people.” Id. at 1223. This statement, the Court said, was sufficiently prejudicial to the co-conspirator. Here, unlike in Avery, Bujduveanu has pointed to no statement that Keshari made that would inculpate him. His failure to meet this burden is fatal to his Bruton-based severance claim. Finally, even if Bujduveanu had provided the Court with at least one statement made by Keshari that was prejudicial, and even if that one statement directly inculpated Bujduveanu, severance still would be the last resort. Before putting the public, the government, the Court, and witnesses through the inefficiency, cost, and duplication inherent in two trials, the Court should look for “alternative ways” to mitigate the prejudice to the defendant short of severance. See Bruton, 391 U.S. at 133–34; see also 1A Wright et al., supra, § 224 (“The Court in Bruton spoke of ‘alternative
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ways’ on using a statement to prove the confessor’s guilt without infringing the nonconfessor’s confrontation rights . . . .”). One alternative way to avoid a Bruton problem, and the need for severance, is to remove any reference to the implicated defendant from the co-defendant’s confession. The Supreme Court approved the redacting procedure in Richardson v. Marsh, 481 U.S. 200 (1987). There, the Court held that “the Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when . . . the confession is redacted to eliminate not only the [other] defendant’s name, but any reference to his or her existence.” Id. at 211. Whether the Court should redact Keshari’s statement directly inculpating Bujduveanu is a question we can leave for another day. For now, Bujduveanu has not come forward with a single statement made by Keshari that is prejudicial to him. And he has not discussed any of the alternative ways, short of severance, that the Bruton issue can be resolved. Absent that, Bujduveanu’s general allegations about “the introduction of his co-defendant’s statements and/or voluminous evidence” (DE 77 at 3) are insufficient to establish the requisite “specific and compelling prejudice” to overcome the heavy presumption in favor of a joint trial. B.
Spillover Prejudice.
Bujduveanu next argues that severance is appropriate under Rule 14(a) because “the Government intends to prove its case against Mr. Bujduveanu’s co-defendant [Keshari] by using incriminating evidence that primarily does not involve Mr. Bujduveanu.” (Id. at 5.) Bujduveanu later reiterates that “[a] great deal of the evidence introduced by the Government at trial will be the kind that will be impossible for the jury to ‘sever’ Mr. Bujduveanu from his co-defendant, even with the requisite instructions to do so.” (Id. at 6.)
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Again, as with his Bruton-severance argument, Bujduveanu fails to specify for the Court what evidence he believes the government will introduce against Keshari that will have a spillover effect on him. It is Bujduveanu’s burden to establish the facts necessary for severance. It is not the government’s burden to go through all the evidence and determine independently what evidence, if any, is prejudicial to one or both of the two defendants, nor is it the Court’s burden. Bujduveanu’s failure to make anything other than general assertions that some of the government’s evidence tending to prove Keshari’s guilt will spillover as to him is insufficient to overcome the strong presumption in favor of joint trials. However, even if Bujduveanu had provided the Court with the evidence against Keshari that would have spilled over to him, there still would not be sufficiently compelling prejudice to warrant the high cost and inefficiency of two trials. Bujduveanu argues that “there is a significant disparity in the type of evidence to be adduced against individual co-defendants.” (Id. at 4.) The government, Bujduveanu says, “intends to prove its case against [Keshari] by using incriminating evidence that primarily does not involve” him, causing an “avalanche of extraneous and highly prejudicial evidence” to “engulf” him. (Id. at 5.) The Eleventh Circuit has already rejected Bujduveanu’s “avalanche” argument. In Schlei, the Court explained: The mere fact that there may be an “enormous disparity in the evidence admissible against him compared to the other defendants” is not a sufficient basis for reversal. “A defendant does not suffer compelling prejudice, sufficient to mandate a severance, simply because much of the evidence at trial is applicable only to co-defendants.”
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Schlei, 122 F.3d at 984 (citation omitted). The Court reiterated in Baker that “a defendant does not suffer ‘compelling prejudice’ simply because much of the evidence at trial is applicable only to his codefendants, even when the disparity is ‘enormous.’” Baker, 432 F.3d at 1236. Thus, the suggestion—unsupported in Bujduveanu’s severance motion save for a couple of conclusory assertions—that the government’s evidence against Keshari is enormously different in kind and amount from the evidence against Bujduveanu does not mean, as Bujduveanu claims, that he suffers compelling prejudice. More is required, and that more is missing from Bujduveanu’s severance motion. Finally, even if the purported “avalanche of evidence” against Keshari somehow prejudiced Bujduveanu, severance would still not be the appropriate remedy; rather, a jury instruction would be. The Eleventh Circuit explained in Baker that: In order to mitigate any “spillover effect” on co-defendants, a court should ordinarily give cautionary instructions to the jury, advising that certain evidence is to be considered relevant only as to certain defendants or certain charges. Severance is justified as a remedy only if the prejudice flowing from a joint trial is clearly beyond the curative powers of such instructions. Baker, 432 F.3d at 1236–37. Severance, in other words, is the last resort—not the first. Bujduveanu contends that there will be “[a] great deal of evidence introduced by the Government at trial [that] will be the kind that will be impossible for the jury to ‘sever’ Mr. Bujduveanu from his co-defendant, even with the requisite instructions to do so.” (DE 77 at 6.) He fails to identify for the Court what this evidence will be or what “kind” it is, but even if he had, the Baker Court has rejected the notion that the jury will be prejudiced against a defendant because of the kind of evidence introduced as to a co-defendant.
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In Baker, fifteen defendants were charged in a seventeen count indictment with conspiring to possess cocaine with the intent of distributing it, and each with individual counts of drug possession and trafficking. Baker, 432 F.3d at 1199 & n.1. The trial lasted for thirty-one days, and included over one hundred witnesses and hundreds of hours of testimony. Id. at 1200. Nine of the defendants moved to sever their trials to avoid spillover prejudice from the testimony that the rest of the defendants had committed “various murders and other gang violence.” Id. at 1235–36. The Eleventh Circuit concluded that “the potential ‘spillover effect’ of the witness testimony and other evidence concerning the various co-defendants’ violent activities did not amount to ‘compelling prejudice’ sufficient to render the district court’s denial of severance an abuse of discretion.” Id. at 1238. The Court knew that there was no prejudice in part because the jury split its verdict, finding some defendants guilty while setting others free. Id. at 1237. The jury clearly was able to follow directions and not let the evidence of murder and violent conduct by some defendants sway its verdict as to others. In other words, to establish the requisite compelling prejudice for severance Bujduveanu must show more than that the government intends to introduce evidence of a different kind against his co-defendant, Keshari. Even where this “different kind” evidence is highly prejudicial to one co-defendant—like the mass murder and gang mayhem introduced as to some co-defendants in Baker—it does not warrant a severance; jury instructions are the preferred method of dealing with any spillover issues. The jury can be instructed not to let evidence as to one defendant prejudice its deliberations, and from experience, we can expect the jury to listen. If any remedy is warranted here, the government would suggest the scalpel of jury instructions, and not the ax of severance.
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Conclusion For the foregoing reasons, Bujduveanu has not met his burden to establish the compelling prejudice necessary to overcome the strong presumption in favor of joint trials for co-conspirators. The Court should therefore deny Defendant Bujduveanu’s Motion for Severance.
Respectfully submitted, R. ALEXANDER ACOSTA UNITED STATES ATTORNEY
By:
S/ Melissa Damian MELISSA DAMIAN ASSISTANT UNITED STATES ATTORNEY Fla. Bar No. 0068063 99 N.E. 4th Street, Suite 600 Miami, Florida 33132 Telephone: (305) 961-9018 Facsimile: (305) 536-4675 Melissa.Damian@usdoj.gov and ROBERT LUCK ASSISTANT UNITED STATES ATTORNEY Fla. Bar No. 0028065 99 N.E. 4th Street, Suite 600 Miami, Florida 33132 Telephone: (305) 961-9031 Facsimile: (305) 536-5566 Robert.Luck@usdoj.gov
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CERTIFICATE OF SERVICE I hereby certify that on September 22, 2008, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to Mark Eiglarsh, counsel for Defendant Traian Bujduveanu.
S/ Melissa Damian Melissa Damian Assistant United States Attorney
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