UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
United States of America )
Scott M. Galindez ) Crim. No. 87-60
Stephen Semple ) Crim. No. 87-61
William Thomas ) Crim. No. 87-62
Phillip Joseph ) Crim. No. 87-63
Ellen B. Thomas ) Crim. No. 87-64
Andrew Hammerman, and ) Crim. No. 87 65
Robert Dorrough ) FILED APR 6 1987
Robin White 1/ )Clerk, U.S.District Court
District of Columbia
The United States has filed a motion to consolidate these
cases, which are now pending before several judges of this Court.
This member of the Court has held a hearing on the motion to consolidate and has learned that several of the defendants
Fed. R. Crim. P. 13 provides the basis for joinder of defendants in criminal cases. That rule provides:
The court may order two or more indictments or informations
or both to be tried together if the offenses, and the defendants
if there is more than one, could have been joined in a single
indictment or information. The procedure shall be the same if
the prosecution were under such single indictment or information.
Whether joinder is proper is governed by Fed. R. Crim.
P. 8(b), which provides that:
Two or more defendants may be charged in the same indictment
or information if they are alleged to have participated in the
same act or transaction or in the same series of acts or transactions
constituting an offense or offenses ....
Although the language of Rule 8(b) is imprecise, its meaning
is clear. Joinder is allowed if defendants are alleged
to have participated in " (1) the same act or transaction
constituting an offense or offenses, or (2) the same series of
acts or transactions constituting an offense or offenses "
What the Rule does not permit is joinder when "it
is charged that one defendant committed an offense and that a
second defendant committed a similar offense, but there is no
allegation that the two offenses arose out of a series of transactions in which both defendants participated." Id. at 509; United States v. Jeffries, 45 F.R.D. 119 (D.D.C. 1968). This, and nothing else, is what is involved in the motion now before the
Each defendant is accused of behavior in Lafayette Park
that allegedly violates a federal regulation. All but one defendant
was charged by Information with unlawfully camping in Lafayette
Park. Defendant Hammerman was charged by information with unlawfully
erecting a "structure, that is a large mass of snow"
in that park.1 Nothing in those Informations, or in the government's
motion, suggests that these individuals agreed
C.A. Wright , Federal Practice and Procedure: Criminal §144,
at 495 (1982). The Rule envisions joinder of acts arising, out
of a conspiracy, a common scheme or plan, a "substantial
identity of facts or participants,'' or another type of connected
occurrence where the indictment invites joint proof. Id. at 503-05.
1/ The government has moved to consolidate its case
against Robin White with the other cases now before the Court
or that the government would place before the Court. As far as
the Court can tell from the files kept by the Clerk of the Court,
neither an indictment nor an information has been issued against
Robin White. Therefore, the Court knows of no charge against him
or her; if any charge there be, the Court is ignorant of its content.
to perform the alleged acts in concert or that the acts can
be said to form a '"series." Nothing even remotely suggests
that the government could offer joint proof against the defendants.
The facts may well differ as to each defendant, just as defenses
may differ. What the government appears to ask is that the Court
consolidate cases of seven individuals who, apparently by themselves
and with no participation from any other person, allegedly violated
a regulation in a similar way in a similar place. When put so
bluntly, it is clear that the government's motion is without foundation.
See United States v. Adams, 581 F.2d 193 (9th Cir.), cert.
denied, 439 U.S. 1006 (1978); United States v. Jackson,
562 F.2d 789 (D.C. Cir. 1977).
The Court is aware, however, that several of these defendants
have already filed pre-trial motions and that the others intend
to do so. The Court is also aware that these motions will be similar
in content and intention. Because judicial economy and the interests
of justice would best be served if only one member of the Court
heard and decided these similar motions, this Court will, consistent
with the Order entered by Judge Joyce Hens Green on March 10,
1987, allow all but one of these cases to be consolidated in this
Court for pre-trial purposes. The Court understands that counsel
for the Government inadvertently asked to consolidate Criminal
No. 87-65 with these other cases, and, as that information alleges
violation of a different regulation from the ones at issue in
the other informations, the Court will not consolidate pre-trial
matters in that case with these other cases.
Accordingly, it is this 6th day of April, 1987,
ORDERED that the Government's motion to consolidate the
above-captioned cases for trial shall be, and hereby is, DENIED;
and it is
FURTHER ORDERED that Criminal No. 87-65 shall be, and a
hereby is, returned to the docket of Judge John Garrett Penn for
all purposes; and it is
FURTHER ORDERED that Criminal Nos. 87-60, 87-61, 87-62,
87-63 and 87-64 shall be, and hereby are, consolidated before
this Court for pre-trial purposes only; and it is
FURTHER ORDERED that all pre-trial motions in Criminal
Nos. 87-61, 87-62, 87-63, and 87-64 shall be filed, both with
the Clerk of the Court and with the Court in Room 4317, by 4 PM.
April 15, 1987, and all responses thereto shall be filed by 4PM,
April 21, 1987; and it is
FURTHER ORDERED that a hearing on those motions shall be
held on April 23, 1987, at 2PM in Courtroom 11.
//s// Charles R. Richey
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE