United States of America    )
           v.               )
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 oppose consolidation.

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 "
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.

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 Court.

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

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