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United States v. Burke

United States District Court, D. Connecticut

October 12, 2016

UNITED STATES OF AMERICA
v.
TIMOTHY BURKE

          RULING ON MOTIONS

          Michael P. Shea, U.S.D.J.

         Defendant 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.

         I. Background

         On 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.

         II. Discussion

         a. Motion to Sever

         Defendant 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 evasion:
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.

         All in violation of Title 26, United States Code, Section 7201. (Indictment, ECF No. 79 at ¶ 56.)

         Defendant 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 ...


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