The opinion of the court was delivered by: STANLEY S. HARRIS
Before the Court are the Government's motion and supplemental motion to consolidate indictments and trials and the defendants' oppositions thereto.
The motions were filed jointly by the Office of Independent Counsel (OIC) and the Department of Justice (DoJ) through the United States Attorney for the District of Columbia.
They seek consolidation of United States v. Briscoe, Wilson, and Steier, Criminal No. 91-399, which was initiated here by the OIC, and United States v. Briscoe and Steier, Criminal No. 92-86, which originally was brought by the United States Attorney for the Southern District of Florida. After careful review of the entire record, the Court consolidated the two indictments for trial by Order of August 7, 1992. This Opinion sets forth the reasons for the Court's Order. Defendants opposed consolidation on a number of grounds. The Court addresses only those contentions that it considers significant.
On July 11, 1991, the OIC filed an indictment against defendant Briscoe in this district, Criminal No. 91-399 (OIC indictment). The OIC subsequently filed three superseding indictments, the last of which is United States v. Briscoe, Wilson, and Steier (third superseding indictment). On June 12, 1991, the United States Attorney for the Southern District of Florida returned an indictment against defendants Briscoe and Steier, in that district's Criminal No. 92-8066 (the South Florida indictment). On defendant Briscoe's motion, the south Florida indictment was transferred to this District on January 28, 1992. The South Florida indictment, this Court's Criminal No. 92-86, was assigned to the undersigned as related to the OIC indictment.
Following the transfer, the OIC and the United States Attorney jointly moved to consolidate the OIC indictment with the South Florida indictment. The Government initially moved to consolidate the OIC's second superseding indictment with the South Florida indictment. Before defendants' oppositions to that motion were filed, the OIC filed the third superseding indictment, and the Government filed a supplemental motion to consolidate.
The OIC indictment charges defendants Briscoe and Wilson with submitting false statements to HUD in connection with UDAG applications for various projects developed by Briscoe, including the projects at issue in the South Florida indictment.
(OIC indictment at 28-54). For each project, Wilson, a First Vice President of a financial institution, falsely represented that his employer had issued the requisite "firm financial commitment" for the project to qualify under the UDAG program. Briscoe then represented that he accepted the financial commitment. The false statements were submitted to DuBois Gilliam at HUD to obtain UDAGs. Id.
The OIC indictment also charges defendants Briscoe, Wilson, and Steier with conspiracy. Count one alleges that the defendants conspired "to use illegal means to ensure that HUD would approve and award UDAG funds" to Briscoe's projects, including projects that did not qualify for HUD grants. (OIC indictment at 12, P 28.) The defendants allegedly conspired to obtain HUD grants for various projects by submitting false statements to HUD and making illegal payments to DuBois Gilliam in exchange for approving the grants. The illegal payment portion of the conspiracy is the same bribery scheme alleged in the South Florida indictment. Thus, the conspiracy in the OIC indictment encompasses both the South Florida bribery charges and the false statements charges.
The OIC indictment names DuBois Gilliam as an unindicted coconspirator.
Both Briscoe and Steier were unindicted coconspirators in the OIC's second superseding indictment and are named as indicted coconspirators in the third superseding indictment.
Rule 13 provides that "the court may order two or more indictments or informations or both to be tried together if the offenses, and the defendants if there is more than one, could have been joined in a single indictment or information." Fed. R. Crim. P. 13. Thus, a court may consolidate indictments for trial if the offenses could be joined in a single indictment under Rule 8. United States v. Burkley, 591 F.2d 903, 918 (D.C. Cir. 1978), cert. denied, 440 U.S. 966, 59 L. Ed. 2d 782 , 99 S. Ct. 1516 (1979); United States v. McDaniel, 538 F.2d 408, 411 (D.C. Cir. 1976).
"Rule 8(b) governs the joinder of defendants and offenses when there are multiple defendants." United States v. Halliman, 923 F.2d 873, 882 (D.C. Cir. 1991); United States v. Perry, 731 F.2d 985, 989 (D.C. Cir. 1984). Rule 8(b) provides:
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. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.
The rule extends to offenses comprised of the "same series of acts or transactions." Id. That language "may not be read to embrace similar or even identical offenses, unless those offenses are related." Perry, 731 F.2d at 990. "Acts or transactions form a 'series' within the meaning of the rule if they 'constitute parts of a common scheme or plan.'" Halliman, 923 F.2d at 883 (quoting Perry, 731 F.2d at 990, and United States v. Jackson, 562 F.2d 789, 796 (D.C. Cir. 1977)). "In ...