United States District Court, D. Nevada
ORDER (RE: DOCS. 168, 169, 176, 178, 182, 184)
JENNIFER A. DORSEY, District Judge.
Jeremy Halgat is a defendant in two cases arising out of an undercover investigation and resulting in cocaine-conspiracy charges filed in two separate indictments pending before two judges in this district. In the first-filed (and instant) case, 13-cr-239-JAD-PAL (" McCall ") Halgat is charged with two other defendants - Anthony McCall and Robert Morrow - for events occurring in February-March 2013; in the second case, 13-cr-241-APG-VCF (" Wickham "), Halgat is charged along with a single co-defendant - Udell Wickham - for transactions four months earlier during the Fall of 2012. Although the indictments were issued separately and these cases have been litigated separately for nearly a year, the Government now moves to consolidate or join them before this Court. Finding that the Government has failed to satisfy the conditions for joinder, the Court denies the motion. The Court also considers and grants Halgat's motion for leave to file a late motion to dismiss (Doc. 168) and his request to allow that motion to exceed the 30-page limit by two extra pages. Doc. 169. McCall's request to join in Halgat's consolidation opposition is granted, but his attempt to join in Halgat's motion to dismiss is denied. Docs. 182, 178
A. Joinder and Consolidation of Criminal Matters
"Two offenses may be joined in the indictment under Rule 8(a) only if the offenses charged are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." "Because Rule 8 is concerned with the propriety of joining offenses in the indictment, the validity of the joinder is determined solely by the allegations in the indictment." "Because Rule 14 is available as a remedy for prejudice that may develop during the trial, ' Rule 8 has been broadly construed in favor of initial joinder....'" Nevertheless, joinder under Rule 8 requires scrutiny, as Rule 14 is not a substitute for joinder analysis. Under Rule 8, at least one of three conditions must be satisfied for proper joinder: (1) the commission of one of the offenses either depended upon or necessarily led to the commission of the other; proof of the one act either constituted or depended upon proof of the other; (2) the offenses are the same or similar character in that they share "the elements of the statutory offenses, the temporal proximity of the acts, the likelihood and extent of evidentiary overlap, the physical location of the acts, the modus operandi of the crimes, and the identity of the victims"; or (3) the joinder will not result in prejudice in that it will have a substantial and injurious influence on the jury's determination of the verdict.
The Government contends that these cases should be joined because (1) Halgat and McCall will be entering into a joint defense agreement; (2) Halgat and McCall will be presenting an entrapment defense and the evidence relating to the Wickham case will be introduced at the McCall trial; (3) judicial economy supports consolidation because Task Force Officer ("TFO") Brancato will be a primary witness in both cases and Halgat has filed similar motions to dismiss in both cases, which could be more efficiently addressed by the government with a single opposition. Doc. 176. Halgat opposes the motion as untimely, "judge shopping, " and a violation of Rules 8 and 14. Doc. 181. McCall has moved to join in Halgat's opposition and additionally argues that he will be prejudiced by the consolidation because there is no overlap between him and the Wickham case.
B. The Government Has Not Demonstrated that the Wickham and McCall Matters Are Appropriate for Joinder or Consolidation.
1. The Wickham Case
The Wickham indictment was filed on June 19, 2013, alleging against Halgat and Wickham one count of conspiracy to distribute cocaine and four counts of distribution of cocaine on four dates in September and October 2012. In each of the alleged distributions, TFO Brancato acted in his undercover capacity as a cocaine buyer, Wickham supplied roughly an ounce of cocaine to Brancato in each transaction, and Halgat allegedly acted as a middleman. On April 22, 2014, Judge Ferenbach granted Halgat's motion to compel information regarding the Government's confidential informant, Doc. 38, and Halgat's motion to compel information regarding an undercover agent's cell phone records, Doc. #39. That order is currently on appeal to Judge Andrew Gordon, Doc. 76, and subject to a stay pending appeal. Doc. 82. There are also two additional motions currently pending in Wickham : (1) Halgat's Motion to Dismiss for Outrageous Government Conduct; and (2) the Government's motion to strike it. On May 12, 2014, Udell Wickham, the only other defendant in the case, entered a guilty plea leaving Halgat as the only remaining defendant in the Wickham matter. Trial is currently scheduled before Judge Gordon on August 25, 2014.
2. The McCall Case
The McCall indictment was also filed on June 19, 2013. It alleges against Halgat, McCall, and Morrow one count of conspiracy to possess with intent to deliver cocaine and one count of using and carrying a firearm in relation to that drug trafficking crime. The charges arise from events that occurred in February-March of 2013 (four months after the Wickham events) and the alleged agreement to provide armed security for the receipt and transfer of 10 kilograms of cocaine. McCall and Morrow allegedly helped undercover TFO Brancato package and load the cocaine in the TFO's vehicle, while Halgat maintained armed security. The pre-trial motions deadline was October 31, 2013,  and trial is currently scheduled before the undersigned on August 26, 2014.
3. Application of the Rule 8 Analysis to these Matters
The three conditions for joinder of criminal matters have not been satisfied. The Government has not argued, nor can this Court find any support for the notion that the Wickham and McCall offenses are sufficiently interrelated to justify joinder under the first factor. Wickham involves a series of controlled cocaine buys in which it is alleged that Halgat and Wickham sold cocaine to TFO Brancato. In McCall, Halgat is alleged to have provided armed security while two defendants not named in the Wickham case - McCall and Morrow - packaged and loaded a large quantity of cocaine into the TFO's vehicle. Although both investigations were apparently part of the same sting operation, the cases involve different charges, defendants, and allegations, and the events that give rise to the charges are separated by a period of four months. There is simply no indication that the commission of the offenses in McCall depended on those in Wickham or that the Wickham offenses led to the offenses in McCall.
The Government has also failed to satisfy the second factor of the Rule 8 analysis. The Government asserts without analysis that the Wickham transactions are inextricably intertwined with the McCall facts in this case and constitute evidence of the chronology of events leading to Halgat's indictment in this case. But the "same or similar character" factor requires more "such as the elements of the statutory offenses, the temporal proximity of the acts, the likelihood and extent of evidentiary overlap, the physical location of the acts, the modus operandi of the crimes, and the identity of the victims." Although both cases involve cocaine, the indictments allege different offenses: Halgat is charged in Wickham with four counts of conspiracy to distribute cocaine; Halgat is charged in McCall with conspiracy to possess with intent to deliver cocaine and the use and carrying of a firearm in the course of that drug offense. The underlying acts do not share temporal proximity - they happened four months apart. Nor do they share evidentiary overlap because they were entirely separate actions and occurrences involving different actors (Halgat and Wickham for one set of facts; and Halgat, McCall, and Morrow for the other); Halgat and TFO Brancato are the only overlapping actors. There is no allegation that the acts ...