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U.S. v. BRODIE

July 19, 2004.

UNITED STATES OF AMERICA,
v.
WILBERT S. BRODIE, et al., Defendants.



The opinion of the court was delivered by: ELLEN S. HUVELLE, District Judge

MEMORANDUM OPINION

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 considered seriatim.

  A. Preindictment Delay

  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.

  II. Multiplicity

  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 Statements

  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 ...


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