United States District Court, D. Massachusetts
Nathaniel M. Gorton Nathaniel M. Gorton United States
2018, the government filed a sealed indictment against Igor
Moiseev (“Moiseev”) and Alexander Grinis
(“Grinis”). The government alleges that Moiseev
committed bank fraud in violation of 18 U.S.C. § 1344
and identity theft in violation of 18 U.S.C. § 1028A. It
further alleges that Grinis made false statements on a loan
application in violation of 18 U.S.C. § 1014. Both
defendants are subject to forfeiture allegations pursuant to
18 U.S.C. § 982(a)(2).
Defendants' Motions to Sever and
anticipation of trial, the defendants, who are represented by
separate counsel, submitted two pretrial motions that the
Court now considers.
Grinis's Motion to Sever
November, 2018, Grinis filed a motion to sever (Docket No.
33), arguing that 1) he and Moiseev have been charged with
different crimes, 2) the government has not alleged
conspiracy and 3) there is no allegation that Grinis had
knowledge of Moiseev's intent to defraud. Because the two
defendants are not accused of engaging in the same act or
transaction, Grinis avers that severance is required under
Fed. R. Crim. P. 8(b). Grinis further claims that a joint
trial would be prejudicial pursuant to Fed. R. Crim. P. 14(a)
because the evidence with respect to Moiseev's alleged
embezzlement has no bearing on whether Grinis falsely
certified loan documents and would create a negative
inference of guilt by association.
government opposed this motion, contending that the
defendants were properly joined, pursuant to Fed. R. Crim. P.
8(b), because each count in the indictment arises from the
same set of facts or same series of acts or transactions. The
government further responds that Grinis has failed to
demonstrate a strong showing of prejudice and that proper
jury instructions will ensure a fair trial for Grinis.
Finally, the government submits that a joint trial, in which
the same evidence would be introduced against both
defendants, promotes judicial efficiency and serves the
interest of justice.
Crim. P. 8(b) provides that 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
the allegations against the two defendants arise from the
same set of facts and defendant has the burden of
demonstrating improper joinder, the motion to sever will be
denied. United States v. Natanel,
938 F.2d 302, 306 (1st Cir. 1991) (holding that defendant has
the burden of demonstrating that misjoinder has taken place).
Fed. R. Crim. P. 14(a) provides that If the joinder of
offenses or defendants in an indictment, an information, or a
consolidation for trial appears to prejudice a defendant or
the government, the court may order separate trials of
counts, sever the defendants' trials, or provide any
other relief that justice requires.
applying Fed. R. Crim. P. 14(a), courts have demonstrated a
preference for joinder absent a strong showing of prejudice.
United States v. Silvestri, 790 F.2d 186, 188 (1st
Cir. 1986) (holding that to prevail on a motion to sever, a
defendant must make a strong showing of prejudice). Grinis
has not demonstrated that substantial prejudice is imminent.
Nor has he rebutted the claim that a limiting instruction can
cure any alleged prejudice. Thus, because Grinis has not met
his burden with respect to prejudice, his motion to sever
will be denied.
Moiseev's Motion to Suppress
January 22, 2019, Moiseev filed a motion to suppress
financial records that were seized without a warrant (Docket
No. 51). He alleges that the extensive seizure of his
financial records is akin to more recent cases (namely
Carpenter v. United States, 138 S.Ct. 2206 (2018)),
where the Supreme Court refused to extend the third-party
doctrine to novel circumstances. The government responds that
it is not required to obtain a search warrant for financial
records pursuant to the third-party doctrine and that Moiseev
misstates the holding in Carpenter.
Carpenter v. United States, the Supreme Court
recognized that individuals have a reasonable expectation of
privacy with respect to their individual movements captured
by cell phone records. Carpenter, 138 S.Ct. at 2217.
Carpenter is easily distinguished as a “novel
circumstance” because in that case, the government
obtained location data from a cell phone without a warrant.
Id. Here, the government obtained Moiseev's
financial records pursuant to grand jury subpoenas, and thus,