United States District Court, D. Connecticut
RULING ON MOTIONS
Michael P. Shea, U.S.D.J.
Timothy Burke moves to sever Court Nine of the Second
Superseding Indictment (ECF No. 107), moves to strike
surplusage from the Indictment (ECF No. 109), and moves to
suppress any attorney-client privileged communications
between him and his co-defendant, Bradford Barneys (ECF No.
111). For the reasons stated below, the Motion to Sever is
DENIED, the Motion to Strike is DENIED, and the Motion to
Suppress is DENIED without prejudice.
April 27, 2016, a grand returned a twelve-count Second
Superseding Indictment charging Defendant Timothy Burke with
conspiracy, mail fraud, wire fraud, aggravated identity
theft, tax evasion, and money laundering. (ECF No. 79.) The
Indictment alleges that Burke, along with his co-defendant
Bradford Barneys, took control from homeowners of foreclosed
properties through fraudulent representations.
Motion to Sever
first moves to sever Count Nine of the Indictment, which
charges him with tax evasion. Count Nine of the Second
Superseding Indictment states:
From on or about May 2007 to in or about November 19, 2015,
in the District of Connecticut and elsewhere, the defendant
Timothy W. Burke did willfully attempt to evade and defeat
the payment of a large part of the income tax due and owing
by him to the United States for the calendar year set forth
for calendar years [sic] 1994, 1995, 1997, 1998, 1999, 2000,
2001, 2002, 2003, 2007, 2010, 2011, and 2012, in the amount
of $1, 029, 584.58, by the following affirmative acts of
a. Instructing tenants to pay rent in cash;
b. Depositing rental income into a nominee bank account with
other individuals as signatories;
c. Structuring multiple cash deposits under $10, 000 at
multiple bank branches to avoid the filing of Currency
Transaction Reports ("CTRs"); and
d. Holding real property in a nominee name.
violation of Title 26, United States Code, Section 7201.
(Indictment, ECF No. 79 at ¶ 56.)
argues that Rule 8(b) of the Federal Rules of Criminal
Procedure applies to the Motion to Sever. The Second Circuit
has left open the question of whether the Rule 8(a) or the
Rule 8(b) standard applies to severance motions where a
defendant in a multi-defendant case seeks severance of a
count in which only he is charged. See United States v.
Shellef, 507 F.3d 82, 97 n.12 (2d Cir. 2007). The Court
need not address the question, as Defendant's motion for
severance fails under either standard. The motion ...