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United States v. Gu

United States District Court, D. Vermont

April 20, 2017

ALISON GU, a/k/a "Alison Ling, " 'Ally Koo, " "Ai J. Chen, " "Ai Jen Chen, " "Ai Chen, " "Jing Shao, " "Yijing Gu, " "Yijing Lin, " 'Alison Yi Gu, " and MATTHEW ABEL


          Christina Reiss, Chief Judge United States District Court

         On February 24, 2017, Defendant Alison Gu moved to sever the counts and defendants set forth in a July 19, 2016 Superseding Indictment (Doc. 90). On that same date, Defendant Matthew Abel filed a separate motion to sever defendants for trial (Doc. 91). Defendants join in each other's motions.

         Defendants contend that under Fed. R. Crim. P. 8(a) the counts of the Superseding Indictment were improperly joined or, in the alterative, under Fed. R. Crim. P. 14(a), severance is warranted because a joint trial would be unfairly prejudicial. On March 17, 2017, the government opposed the motions, arguing that joinder was proper and Defendants offered no justification for severance which would result in an unnecessary expenditure of judicial and party resources. On March 17, 2017, the court took the pending motions under advisement.

         The government is represented by Assistant United States Attorney Michael P. Drescher. Defendant Gu is represented by Assistant Federal Public Defender David L. McColgin and Defendant Abel is represented by Craig S. Nolan, Esq.

         I. The Superseding Indictment and the Motions to Sever.

         The three-count Superseding Indictment charges Defendants as follows: Count One charges both Defendants with devising and executing a scheme to defraud five banks through the submission of mortgage loan applications and re-financing applications containing false information in violation 18 U.S.C. § 1344(1) & (2). Count Two charges Defendant Gu with willfully and knowingly making a false statement in a passport application with the intent to induce and secure the issuance of a passport for her own use in violation of 18 U.S.C. § 1542. Count Three charges that Defendant Gu knowingly and unlawfully possessed or used the identification of another person in relation to the false statement alleged in Count Two in violation of 18 U.S.C. § 1028A(a)(1).

         In their motions, Defendants ask the court to hold three trials: separate trials for Defendant Gu and Co-Defendant Matthew Abel with regard to Count One's allegation of bank fraud, as well as a separate trial for Defendant Gu with regard to Counts Two and Three. In the absence of severance, Defendant Gu contends that "the jury will inevitably see the evidence of use of false identification in the bank fraud as proof of a propensity to use false identification, and thus as evidence of guilt regarding the alleged use of a false identity in the passport application." (Doc. 90 at 4.) In turn, Defendant Abel argues that the voluminous evidence in this case "almost exclusively implicat[es] Ms. Gu" and, without expert witness testimony linking him to the alleged bank fraud scheme, "it is anticipated that [Defendants] will offer at trial mutually antagonistic defenses that the other was responsible for the alleged fraudulent scheme such that acceptance of one defense will preclude acceptance of the competing defense and require conviction of the co-defendant." (Doc. 91 at 2.)

         II. Conclusions of Law and Analysis.

         A. Whether Joinder of Counts in the Superseding Indictment Was Proper.

         Joinder of offenses is permissible if those 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). "Counts that have a sufficient logical connection to each other can be tried together, as can those where the same evidence may be used to prove each count." United States v. Rivera, 546 F.3d 245, 253 (2d Cir. 2008) (internal citations and quotation marks omitted). "Rule 8(a) is not limited to crimes of the 'same' character but also covers those of 'similar' character, which means '[n]early corresponding; resembling in many respects; somewhat alike; having a general likeness.'" United States v. Werner, 620 F.2d 922, 926 (2d Cir. 1980) (quoting Webster's New Int'l Dictionary (2d ed.)); see also United States v. Blakney, 941 F.2d 114, 116 (2d Cir. 1991) ("For purposes of analysis under Rule 8(a), no one characteristic is always sufficient to establish similarity of offenses, and each case depends largely on its own facts.") (internal citations and quotation marks omitted). "Each of [the] tests for when offenses may be tried together reflects a policy determination that gains in trial efficiency outweigh the recognized prejudice that accrues to the accused." United States v. Turoff, 853 F.2d 1037, 1042 (2d Cir. 1988).[1]

         In each count of the Superseding Indictment, Defendant Gu is alleged to have used fraudulent identification to obtain something of value. In this respect, the three counts, at least insofar as she is concerned, are "somewhat alike" and have a "general likeness." See id.; see also United States v. Robinson, 294 F.App'x. 630, 632 (2d Cir. 2008) (summary order) (concluding that bank fraud, mail fraud, wire fraud, and interstate transportation in stolen securities charges were all properly joined under Rule 8(a) because they were "of the same or similar character"); United States v. Levine, 983 F.2d 165, 167 (10th Cir. 1992) (finding joinder of bank fraud and mail fraud charges to be of the "same or similar character" because the indictment alleged that the defendant "attempted to defraud the governmental entities with falsified receipts, and attempted to defraud his bank through falsified loan documentation").

         Defendant Gu's citation to United States v. Litwok, 678 F.3d 208, 216-17 (2d Cir. 2012) does not compel a different outcome. There, the Second Circuit addressed joinder of a non-tax crime with a tax fraud charge and concluded that joinder was improper "where it is [not] shown that the tax offenses arose directly from the other offenses charged" and where there is no "evidentiary overlap" between the charged offenses. Litwok, 678 F.3d at 216 (quoting United States v. Shellef, 507 F.3d 82, 98 (2d Cir. 2007)). In contrast, in this case, the charges are of the "same or similar character" under Rule 8(a) because the Superseding Indictment alleges that Defendant Gu attempted to defraud both the United States Passport Office and several FDIC insured financial institutions through falsified identification as part of a fraudulent scheme. Joinder of the counts of the Superseding Indictment is therefore proper.

         B. Whether Severance Is Warranted.

         "Even though distinct offenses have been properly joined under Rule 8, the court may order separate trials or grant a severance under Rule 14 if it appears that the defendant is prejudiced by the joinder." Werner, 620 F.2d at 928. Where prejudice is apparent, "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). "Given the balance struck by Rule 8, which 'authorizes some prejudice' against the defendant, a defendant who seeks separate trials under Rule 14 carries a heavy burden of showing that joinder will result in 'substantial prejudice.'" United States v. Amato,15 F.3d 230, 237 (2d Cir. 1994) (quoting Turoff, 853 F.2d at 1043); see also United States v. Rucker,586 F.2d 899, 902 (2d Cir. 1978) ("The burden is upon a moving defendant to show facts demonstrating that he will be so severely prejudiced by a joint trial that it would in effect deny him a fair trial."). "In making the determination, the trial judge ...

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