Opinion
18-CR-609 (RJD)
08-04-2022
UNITED STATES OF AMERICA, v. ARTHUR CODNER, ALFRED LOPEZ, HIMEN ROSS, BUSHAWN SHELTON and ANTHONY ZOTTOLA, SR., Defendants.
MEMORANDUM & ORDER
RAYMOND J. DEARIE UNITED STATES DISTRICT JUDGE
Before the Court are certain motions filed in advance of the upcoming trial in this case. Defendants Bushawn Shelton and Anthony Zottola move to sever their trials. ECF Nos. 322 and 333. Those motions are denied. Shelton also moves to sever two charges from the superseding indictment: felon in possession (Count Five) and perjury (Count Six). ECF No. 322. That motion is granted. Zottola requests a taint hearing pursuant to Kastigar v. United States, 406 U.S. 441 (1972). ECF No. 387. That request is denied.
BACKGROUND
Movants are charged in connection with a murder for hire scheme. As alleged, the scheme resulted in the death of Zottola's father, Sylvester Zottola, and in an unsuccessful attempt on the life of Zottola's brother, Salvatore Zottola, among other acts of violence. On January 14, 2021, a grand jury returned a superseding eight-count indictment (the “Indictment”) charging ten defendants with murder for hire, murder for hire conspiracy, unlawful use and possession of firearms, and causing the death of Sylvester Zottola through the use of a firearm. ECF No. 229. The Indictment also charged Shelton with being a felon in possession of a firearm, perjury, and possession of contraband in prison. Id. To date, five defendants have entered guilty pleas. Defendants Codner, Lopez, Ross, Shelton, and Zottola will proceed to trial on August 24, 2022.
DISCUSSION
I. Severance of Defendants
Under Federal Rule of Criminal Procedure 8(b), a single indictment may charge multiple defendants who allegedly “participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses.” FED. R. CRIM. P. 8(b). There is a “preference in the federal system for joint trials of defendants who are indicted together.” Zafiro v. United States, 506 U.S. 534, 537 (1993). However, if the joinder of defendants appears to prejudice a defendant, Rule 14(a) authorizes a district court to “sever the defendants' trials, or provide any other relief that justice requires.” FED. R. CRIM. P. 14(a). District courts retain wide discretion in deciding Rule 14 severance motions but the burden on a defendant to show prejudice is heavy. Zafiro, 506 U.S. at 539 (“[A] district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.”).
Shelton and Zottola each argue that they will confront substantial prejudice at trial as a result of their purportedly irreconcilable defense strategies. Zottola intends to offer the defense that Shelton “misled Mr. Zottola for the purpose of getting close to [Zottola's older] brother and father in an effort to encroach on their cash businesses.” ECF No. 371 at 7. This proffered defense will attempt to show that Shelton “double crossed” Zottola while “staking out the means to harm [Zottola's family].” ECF No. 333 at 11. Shelton, meanwhile, intends to offer the defense that “Mr. Zottola manipulated and used Mr. Shelton as a patsy for [Zottola's] own nefarious plot to kill his own family.” ECF No. 322 at 11.
As an initial matter, given the government's proffered evidence, the Court questions the sincerity of these planned defenses and the supposed conflicts between them. It seems unlikely, in light of the years-long relationship between Zottola and Shelton, for either defendant to assign murder to the other's intentions when the Zottola family business interests could serve as a more benign motivating force for each. Counsel's submissions, despite rhetorical flourishes, have hardly committed to pursuing such potentially risky defense strategies, which have been articulated with minimal detail. Although the Court invited movants to supplement these sparse submissions, they have not done so beyond offering ex parte disclosures.
But even if we assume that the defenses described will be presented at trial, they are not so mutually antagonistic as to justify a severance. Severance requires more than mere antagonism and blaming between defendants. United States v. Serpoosh, 919 F.2d 835, 837 (2d Cir. 1990). A movant must establish that the conflict between defenses is irreconcilable to the point that acceptance of one defense requires conviction of the other defendant. Id. at 837-38.
The planned defenses of Shelton and Zottola do not rise to this level. Both defendants focus on evidence that the other deceived them. But neither defense strategy traces this deception to the other's guilt in the charged offenses. The fact that Shelton misled Zottola in an effort to “obtain secrets about the details of the Zottola family's businesses” does not require the conclusion that Shelton must have engaged in a murder for hire scheme. ECF No. 371 at 15. Nor does Shelton's theory that Zottola used him as a “patsy” in some capacity compel the conclusion that Zottola must be guilty of orchestrating the murder for hire. A jury could reasonably find, for example, that Shelton wanted a piece of the Zottola family business, but that the government has not proven beyond a reasonable doubt that Shelton is guilty of the charged offenses. In short, neither defendant goes far enough in explaining how the jury's adoption of their version of events forces a conviction of the other.
Nor do the movants' related arguments concerning “double prosecution” justify severing their trials. In United States v. Shkreli, 260 F.Supp.3d 247 (E.D.N.Y. 2017), Judge Matsumoto found that double prosecution concerns warranted severance where one defendant would act as an echo chamber for the prosecution because his defense would focus on the lies, fraud, and, ultimately, guilt of his co-defendant. Id. at 256-57. In United States v. Nordlicht, No. 16-cr-00640, 2018 WL 1796542 (E.D.N.Y. Apr. 16, 2018), Judge Cogan severed defendants on similar grounds. One defendant conceded that a fraud had occurred, echoing the government's case against the other defendants, but argued that he played no role and, in fact, blew the whistle on the scheme. Id. at *1. That defendant's strategy of insisting on his co-defendant's guilt, including presenting incriminating emails, engendered “a situation that is an order of magnitude more severe than routine accusations and blame-shifting between co-defendants.” Id. at *2.
This case does not present such a risk. Shelton and Zottola's submissions reveal that the core of their defenses will not be the guilt of the other, but the minimization of their own involvement. See e.g., ECF No. 371 at 4 (listing evidence to be used in Zottola's defense including text messages that “omitted Anthony Zottola, because they were being done without his knowledge”). While the defendants at trial may engage in some finger-pointing, their proffered defenses do not amount to prosecuting each other for the subject offenses. See United States v. Chierchio, No. 20-cr-306, 2022 WL 523603, at *7 (E.D.N.Y. Feb. 22, 2022) (denying severance motion where double prosecution concerns amounted to “common finger-pointing that inheres in nearly any multi-defendant trial”); United States v. Villegas, 899 F.2d 1324, 1346 (2d Cir. 1990) (“The mere fact that codefendants seek to place the blame on each other is not the sort of antagonism that requires a severance.”).
Shelton and Zottola allude to other concerns in support of severance: the risk of spillover prejudice; evidentiary obstacles; trial management concerns; and the Eastern District's COVID-19 protocols. The Court has reviewed these arguments and finds them insufficient to overcome the strong presumption in favor of joint trials for co-defendants.
The movants' concerns as to spillover evidence are not presented with any particularity as to what evidence might spillover or might be so prejudicial as to infringe on the right to a fair trial. Such speculative risks cannot compel severance. Understandably, evidence of the charged murder plot will be, in a real sense, prejudicial for all members of the charged conspiracy, but that is the nature of evidence. Severance does not change that or in any sense protect a defendant from its impact. This is a conspiracy case charging a single conspiracy involving all defendants. The evidence at a second trial would be largely the same. Aside from perceived strategic advantages, perhaps, severance accomplishes nothing except potentially doubling the amount of judicial and prosecutorial resources required to dispose of the charges. And as for those “lesser” defendants who will not feature in the evidence as much as others, any disparity of proof will no doubt be emphasized as part of a defense theme.
Finally, consistent with the Eastern District's Administrative Order 2021-04-1, the Court has consulted with Chief Judge Brodie and confirmed that the courtroom will be able to accommodate all defendants, counsel, court personnel, and the jury.
II. Severance of Offenses
Under Rule 8(a), a single indictment may charge a defendant with two or more offenses where 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). Severance of offenses may be warranted absent such a similarity of the acts or evidence, United States v. Martinez, No. 92-cr-839, 1993 WL 322768, at *9-10 (S.D.N.Y. Aug. 19, 1993), or where joinder would substantially or unfairly prejudice a defendant, FED. R. CRIM. P 14(a); United States v. Page, 657 F.3d 126, 132 (2d Cir. 2011).
a. Count Five
The Court grants Shelton's motion to sever Count Five, which charges him with being a felon in possession. ECF No. 322. Proving this count would require the government to introduce Shelton's prior felony conviction, which carries a risk of substantial prejudice. See United States v. Narzikulov, No. 19-cr-223, 2019 WL 6699801, at *2 (E.D.N.Y. Dec. 9, 2019) (severing felon in possession charge where “jury's knowledge of [defendant's] prior conviction would unduly influence its deliberation on the other counts”). The Court is wary of Count Five serving as a means to circumvent Federal Rule of Evidence Rule 404(b)'s prohibition against propensity evidence by drawing attention to Shelton's criminal history. As the court observed in United States v. Daniels, 770 F.2d 1111 (D.C. Cir. 1985):
Whenever an ex-felon is charged with committing a crime involving the use of a gun, prosecutors may inform the jury of the defendants' prior convictions merely by taking the time to include a charge of firearms possession....[W]e do not believe the federal judiciary should encourage or countenance this use of the law. The exclusion of other crimes evidence [under Rule 404(b)] is not simply a ‘technicality' designed to prevent law enforcement personnel from doing their job; it reflects and gives meaning to the central precept of our system of criminal justice, the presumption of innocence.
Id. at 1118. Here, the government represents that it “will offer evidence to show that, as part of Shelton's participation in the conspiracy, Shelton provided firearms to co-conspirators” and explains that the “handgun found in Shelton's residence is both an instrumentality of the murder-for-hire conspiracy and the basis for the felon in possession charge.” ECF No. 359 at 82. But the government's only support for a connection between the particular firearm charged in Count Five and the murder for hire conspiracy is the government's discovery of the firearm in the course of investigating the case. The government does not suggest that the firearm at issue in Count Five was used in the murder of Sylvester Zottola, the attempt on Salvatore Zottola's life, or any other violence charged. The only “similarity in the evidence” between Count Five and the remainder of the Indictment is evidence that Shelton generally had access to firearms. This is simply too tenuous to overcome the prejudice that could result from the jury repeatedly hearing reference to Shelton's prior conviction. See United States v. Martinez, No. 92-cr-839, 1993 WL 322768 (severing narcotics and firearm where there was no “causal link between the gun and drugs to justify . . . joinder”); cf. United States v. Robinson, No. 16-cr-545, 2017 WL 5135598, at *4 (E.D.N.Y. Nov. 1, 2017) (joinder of felon in possession appropriate where, among other connections, the gun at issue in the possession count fired the bullet that was discharged in the course of the charged robbery).
b. Count Six
The Court grants Shelton's motion to sever the perjury charge, Count Six, which alleges that Shelton misrepresented his personal finances on a post-arrest financial affidavit. ECF No. 229 at 5. The government submits that the funds Shelton attempted to conceal were the proceeds of the murder for hire scheme, making the perjury charge “entirely intertwined” with the rest of the Indictment. ECF No. 359 at 83. But much like the weapon in Count Five, the government has not proffered any actual connection between the sum of money Shelton possessed and the rest of the Indictment. The fact that Shelton possessed money does not link him to the scheme nor is his possession of money an element of any other crime charged. The government has not satisfied the “similarity in the evidence” requirement of Rule 8(a). Martinez, 1993 WL 322768, at *8.
This Order does not take a position on the admissibility of the firearm, money, or Shelton's prior conviction under the Federal Rules of Evidence.
Finally, as a practical matter, trial is expected to last six to eight weeks. There are multiple defendants, multiple charges, and a multitude of alleged events over the course of more than a year comprising the government's case. The jury will benefit from a trial that is as streamlined as possible. The more prudent choice is to try the murder-related charges without the adornment of marginally related secondary offenses.
III. Taint Hearing
By letter dated July 7, 2022, Zottola urges the Court to conduct a taint hearing under United States v. Kastigar, 406 U.S. 441 (1972), because, according to counsel, “there are hundreds of attorney-client communications” that the prosecution seized from Zottola's cellular telephone on the day of his arrest. ECF No. 387 at 2. Zottola urges the Court hold a hearing “to determine the extent to which the prosecuting AUSAs and agents reviewed Mr. Zottola's attorney-client communications.” Id. at 3.
“To warrant a taint hearing, [d]efendants have the burden of showing a ‘factual relationship' between the privileged information and the prosecution.” United States v. Sharma, No. 18-cr-340, 2019 WL 3802223, at *5 (S.D.N.Y. Aug. 13, 2019) (quoting United States v. Blau, 159 F.3d 68, 72 (2d Cir. 1998)); United States v. Connolly, No. 16-cr-370, 2019 WL 2120523, at *19 (S.D.N.Y. May 2, 2019) (“An insubstantial and speculative possibility of taint does not trigger [a taint hearing pursuant to] Kastigar.”) (internal quotation marks omitted).
Zottola supports his request for a hearing with samples of what he characterizes as privileged communications. See ECF No. 387 at 2 n.2. But nothing on the face of the texts and emails submitted has the characteristics of privileged communications. The vast majority are not even suggestive of the involvement of an attorney. Moreover, none of the samples bear any meaningful connection to this case. Against these facts, a taint hearing is not necessary.
We also note, as the government observes, that more than three years have passed since Zottola's cell phone was seized at the time of his arrest. Significantly, in April of this year, the defense received the full forensic report of the phone and a listing of the materials from the phone that the government may seek to introduce at trial. ECF No. 390 at 1-3. The government emphasizes that despite several exchanges with Zottola's prior or current counsel about the seized devices, no request for a privilege review was ever made. Id. at 2. Zottola's team did not raise any privilege concerns until its July 7th letter.
The government represents that “no prosecuting attorney - either presently or formerly assigned to the case - ever reviewed the full forensic copy of Mr. Zottola's cell phone.” Id. The government's submission further outlines steps the prosecution team took to appropriately address materials it did identify as potentially privileged. Id. at 6-7. This included the case agent's implementation of a filter team to inspect hard copy documents the agent had identified as potentially privileged. Id.
Given the full set of circumstances, Zottola's request for a taint hearing is denied.
CONCLUSION
For the foregoing reasons, Shelton and Zottola's motions to sever their trials are denied, Shelton's motion to sever Counts Five and Six is granted, and Zottola's motion for a taint hearing is denied.
SO ORDERED.