The opinion of the court was delivered by: ELLEN S. HUVELLE, District Judge
Defendants face criminal charges arising from their alleged
participation in schemes to defraud various financial
institutions by submitting fraudulent documents in order to
receive inflated mortgage proceeds. According to the indictment,
while there are differences between the two conspiracies charged,
the basic modus operandi is the same. In the case of all
properties, the property was flipped, i.e., purchased and
resold on the same day. In particular, a dilapidated property was
initially bought by a buyer who did no repairs to the property,
but then resold it at an inflated price. The buyer financed the
purchase with a mortgage loan that was obtained with false
documentation regarding the value of the property. The defendants
and their co-conspirators generated profits for themselves based
on the substantial differential between the purchase price and
the inflated sale price.
As a result of these alleged activities, all defendants have
been charged in a multi-count indictment that was returned on
November 13, 2003.*fn1 That indictment charges that all defendants conspired to make false statements to financial
institutions by submitting fraudulent documentation in order to
obtain bogus mortgage loans in violation of 18 U.S.C. § 371
(Count 1). With respect to this alleged scheme, defendant Brodie
also faces three counts of wire fraud in violation of
18 U.S.C. § 1343 (Counts II-IV). Finally, defendants Padonu and Kareem have
been charged in a second § 371 conspiracy, also involving the
submission of false statements to financial institutions
regarding mortgage loans (Count V). Trial is currently set for
September 10, 2004.
Presently before the Court are a variety of motions filed on
behalf of each of the defendants.*fn2 An evidentiary hearing
is set for August 19 relating to the motions to suppress physical
evidence and statements. The Court, however, will now address the
remaining nonevidentiary motions.*fn3 These include motions
to sever based on misjoinder, Fed.R.Crim.P. 14 and Bruton v.
United States, 391 U.S. 123 (1968);*fn4 to dismiss Count I
and to dismiss the indictment based on speedy trial and
multiplicity arguments. Defendants also request a bill of
particulars and a pretrial hearing to determine the admissibility
of co-conspirator statements and move to strike aliases and to
suppress statements obtained in violation of the Vienna
Convention on Consular Relations. For the reasons given below,
the Court denies these motions in part and grants them in part. I. Speedy Trial
All defendants seek dismissal of the indictment for violation
of their right to a speedy trial. Defendants invoke the Fifth and
Sixth Amendments to argue that the preindictment delay in
returning an indictment against them violated their rights to a
speedy trial. Defendant Brodie also argues that his speedy trial
rights under the Sixth Amendment have been violated due to the
delay in bringing him to trial.*fn5 These arguments will be
Any argument regarding preindictment delay must be based on the
due process clause, and to establish such a due process
violation, a defendant must establish that the delay resulted in
"actual prejudice to the conduct of the defense" and that the
government "intentionally delayed to gain some tactical
advantage" over the defendant. United States v. Marion,
404 U.S. 307, 325 (1971).*fn6 See also United States v.
Foxman, 87 F.3d 1220, 1224 (11th Cir. 1996) (ten-year delay did
not violate defendant's due process rights in absence of showing
of intentional action to gain tactical advantage).
Defendants cannot satisfy their burden under this standard.
While it is true that the relevant events occurred in 1995
through July 1997, and the first indictment against defendant Brodie was unsealed on April 8, 2003,*fn7 and the
superseding indictment against all three defendants was returned
on November 13, 2003, defendants have offered nothing to support
a claim that the government intentionally delayed in order to
gain a tactical advantage or to harass. Nor does any defendant
make a claim of actual prejudice. Rather, there is an unspecified
reference to failing memories, but the law is clear that bare
allegations that delay has dimmed the memories of witnesses and
defendants does not constitute actual prejudice. See, e.g., Saiz
v. Eyman, 446 F.2d 884, 885 (9th Cir. 1971) (per curiam);
United States v. Marler, 756 F.2d 206, 214 (1st Cir. 1985).
Defendants have therefore failed to show that their due process
rights were violated by any preindictment delay.
B. Post-Indictment Delay.
Defendant Brodie also argues that his Sixth Amendment rights to
a speedy trial have been violated due to the delay since the
filing of the first indictment against him on April 23, 2002.
While no definitive time period has been set for compliance with
the constitutional stricture on trial delays, the Supreme Court
established a four-factor test in Barker v. Wingo, 407 U.S. 514
(1972), to determine whether a defendant's constitutional right
to a speedy trial is violated. The factors are: (1) the length of
the delay; (2) the reasons for the delay; (3) the defendant's
assertion of the right; and (4) the prejudice to the defendant.
Id. at 530-32. With respect to the length of the delay, whether one uses the
date of the first indictment (April 23, 2002) or the date of its
unsealing (April 8, 2003) (see note 7, supra), the Court
finds that the length of delay is sufficiently long to raise the
presumption of prejudice, and therefore, to trigger consideration
of the remaining factors.*fn8 Despite this passage of time,
an examination of the Barker factors demonstrates that this
delay did not violate defendant's constitutional rights.
Importantly, the delay here cannot be attributed to any fault
or misconduct by the government. Since the unsealing of the first
indictment, Mr. Brodie has twice requested a change in counsel
and has thus had three different lawyers; the government returned
a superseding indictment on November 13, 2003, that increased the
number of counts and defendants; extensive document discovery has
been produced to the defendants; and numerous motions have been
filed by all parties. As is obvious, this case is not
straightforward, but involves "a serious, complex conspiracy
charge" involving multiple players and numerous properties that
span several years. Barker, 407 U.S. at 531. See also United
States v. Register, 182 F.3d 820, 827 (11th Cir. 1999); United
States v. Dreitzler, 577 F.2d 539, 549-50 (9th Cir. 1978).
Moreover, even if the period when the indictment was sealed were
to be considered, there is no suggestion that the government
acted with bad faith or had a dilatory motive, and the record
does not reveal any "official negligence" by the government.
Doggett v. United States, 505 U.S. 647, 656-57 (1992).
Nor do the third and fourth factors support a ruling in
defendant's favor. Other than filing a speedy trial motion with
respect to the original indictment, defendant Brodie has done
nothing to enforce his right to a speedy trial. Defendant has
also failed to put forth any basis to support an argument that the delay in his trial has caused any actual
prejudice. As previously noted, defendant's speculative claim
regarding dimming memories is insufficient. See United States v.
Tannehill, 49 F.3d 1049, 1054 (5th Cir. 1995); United States v.
Maling, 737 F. Supp. 684, 699-700 (D. Mass. 1990). Second,
during the one-year period that the indictment was sealed,
defendant Brodie suffered "neither pretrial detention, nor
personal anxiety and public obloquy, often the most obnoxious
concomitants of an indictment," United States v. Alo,
439 F.2d 751, 755 (2d Cir. 1971), and since defendant's arrest on April
23, 2003, he has remained at liberty throughout these
proceedings. See Barker, 407 U.S. at 532 (Sixth Amendment's
speedy trial provision is intended, in part, to prevent undue
"oppressive pretrial incarceration").
Because the Barker factors weigh against defendant's claim,
this Court concludes that defendant's Sixth Amendment speedy
trial rights have not been violated.
Defendants move either to dismiss the indictment or to require
the government to elect whether it will proceed with the Count I
or the Count V conspiracy. To support this request for relief,
defendants claim that the indictment is multiplicitous. An
indictment is multiplicitous, and thereby defective, "if a single
offense is alleged in a number of counts, unfairly increasing a
defendant's exposure to criminal sanctions." United States v.
Harris, 959 F.2d 246, 250 (D.C. Cir. 1992). That is not the case
here. Counts I and V charge two different conspiracies involving
different properties. As discussed more fully herein (see
Section VIII, infra), proof of each conspiracy is
distinguishable and independent and there is no prohibition
against charging two logically connected conspiracies in one
indictment. It is therefore clear that it is not multiplicitous to charge two § 371 conspiracies in one
indictment. See, e.g., United States v. Pallais, 921 F.2d 684,
687 (7th Cir. 1990) (marijuana and cocaine conspiracies were not
multiplicitous because some defendants were involved with one
conspiracy but not the other, and the conspiracies involved
different "sources, channels of distribution, methods of shipment
and processing, and customers").
III. Pretrial Determination of Admissibility of Co-Conspirator
Defendants have moved for a pretrial hearing on the
admissibility of co-conspirator statements. The admission of
co-conspirator statements is governed by Fed.R.Evid.
801(d)(2)(E), which requires proof of the following: (1) a
conspiracy, (2) between the declarant and the co-defendant, and
(3) statements made in furtherance of the conspiracy. Here, the
government persuasively argues that no pretrial hearing is
necessary, but instead that ...