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United States v. Garcia-Berrios

United States District Court, N.D. Indiana, Hammond Division

May 10, 2017

UNITED STATES OF AMERICA
v.
CHARLES GARCIA-BERRIOS and MARCUS LOVELL JENKINS

          OPINION AND ORDER

          JOSEPH S. VAN BOKKELEN, UNITED STATES DISTRICT COURT

         The superseding indictment brought various charges against Co-Defendants Garcia-Berrios and Jenkins, including murder and use of a firearm. Mr. Jenkins moves to sever his trial from that of Mr. Garcia-Berrios. (DE 129.)

         A. Procedural posture

         On July 15, 2015, the superseding indictment in this case brought five counts:

(1) attempted murder in aid of racketeering, against Co-Defendants Garcia-Berrios and Cartagena;
(2) use of a firearm during and in relation to a crime of violence, against Co-Defendants Garcia-Berrios and Cartagena;
(3) murder in aid of racketeering, against Co-Defendants Garcia-Berrios and Jenkins;
(4) use of a firearm during and in relation to a crime of violence resulting in death, against Co-Defendants Garcia-Berrios and Jenkins; and
(5) possession of a firearm by a prohibited person, against Mr. Jenkins.

         On September 21, 2015, Mr. Jenkins moved to sever Count 5 from Counts 3 and 4. (DE 39.) The government did not oppose severance of Count 5. (DE 46.) The Court severed Count 5 from Counts 3 and 4. (DE 51.)

         On March 22, 2017, Mr. Cartagena pleaded guilty to Count 2.

         On April 12, Mr. Garcia-Berrios filed a notice of intent to plead guilty to Counts 2 and 3, but on April 24 his attorney filed a motion to withdraw and a motion to continue the change-of-plea hearing.

         Also on April 24, Mr. Jenkins moved to sever his trial from that of Mr. Garcia-Berrios. (DE 129.) The government responded. Mr. Jenkins did not reply, and the time for doing so has expired.

         On April 26, the Court granted the motion to withdraw and did not conduct a change-of-plea hearing for Mr. Garcia-Berrios on the date it had been set. The Court also granted Mr. Garcia-Berrios's motion to continue trial.

         B. Law

         Federal Rule of Criminal Procedure 8(b) allows the joinder of two or more defendants in a single indictment and a single trial:

The indictment or information may charge 2 or more defendants 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. The defendants may be charged in one or more counts ...

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