United States v. Andrews

MEMORANDUM OPINION AND ORDER

The labyrinthine 305-page, 175-count indictment in this case, nearly two inches thick and weighing almost four pounds, names thirty-eight defendants, thirty-seven of whom are alleged to have been members or associates of the El Rukns, an infamous Chicago street gang. It details a maze of well over 250 factually separate criminal acts committed from 1966 to 1989 in many different locations and, for each act, alleges the participation of varying combinations of defendants and countless unindict-ed co-conspirators. The government’s justification for including many of these otherwise unconnected criminal events in one indictment and one trial is that each was allegedly committed to attain power, control, and wealth for the street gang.

Defendants Jackie Clay, Harry Evans, Henry Leon Harris, Earl Hawkins, Eugene Hunter, Derrick Kees, Anthony Sumner, *1165 Freddie Elwood Sweeney, and Ricky Dean Williams have all pleaded guilty. Further guilty pleas are not anticipated. Defendants Roger Bowman, Floyd Davis, Eddie Franklin, Bernard Green, Melvin Mayes, Walter Pollard, and Edward Williams are presently fugitives and may not be apprehended in time for trial. This means that at least twenty-two defendants, but as many as twenty-nine, will be going to trial. Several defendants have filed motions to sever this indictment pursuant to Rule 8(b) or, in the alternative, Rule 14 of the Federal Rules of Criminal Procedure, and the issue before the Court is whether we should permit these 175 diverse charges to be tried in a single mega-trial of unprecedented projected duration. We believe that we should not. Therefore, for the reasons discussed below, although we deny the Rule 8(b) motions, the Rule 14 motions are granted. 1

I. Indictment

A. Count One-RICO Conspiracy

Count One of the indictment charges all but one of the defendants 2 with conspiracy to violate the Racketeering Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d) (1988), and alleges that the El Rukn organization is a racketeering “enterprise” as defined by 18 U.S.C. § 1961(4). 3 It describes a cohesive organization with tightly controlled operations and a formal chain of command. As alleged, unindicted co-conspirator Jeff Fort masterminded the activities of the El Rukns and wielded ultimate and unquestioned authority. He was assisted by thirty-five defendants whom the government contends were El Rukn “generals” or “officers,” the organization’s second and third levels of command, respectively. The government contends that the remaining two defendants named in Count One, although not El Rukn members, were otherwise intimately associated with the organization.

Under the direction and control of Fort, the named defendants and other unindicted co-conspirators are alleged to have conducted El Rukn affairs through the commission of an astonishing number of racketeering acts, including at least twenty murders, twelve attempted murders, eleven conspiracies to murder, one act of kidnapping, wide-scale drug trafficking, and numerous acts of obstruction of justice, including one attempt to bribe a judge and several acts of witness intimidation, retaliation, and tampering. As alleged, all of these wide-ranging and diverse offenses are connected, although at times somewhat loosely, to the affairs of the El Rukn street gang.

B. Count Two-Substantive RICO

Count Two charges thirty-six defendants with substantive violations of RICO under 18 U.S.C. § 1962(c) 4 and recounts 128 separate acts of racketeering, many of which are also alleged in Count One. 5 The number of racketeering acts that each defendant is alleged to have committed ranges from as many as seventy for Melvin Mayes to only two for Isiah Kitchen. The nature of acts charged also varies. Some defendants are charged with numerous violent racketeering acts and only one or two narcotics-related acts, while other defendants are charged solely with narcotics-related acts.

1. Violent Racketeering Acts

According to the allegations in Count Two, the long string of violent racketeering *1166 acts began in May 1974, when several defendants murdered Gilbert Connors, the brother of a rival drug dealer, to prevent encroachment on the El Rukn drug trade. To facilitate a cover-up of this crime, the same defendants subsequently killed Gregory Freeman on May 22, 1974, and blamed this murder on a witness to the Connors homicide. As a result, El Rukn members were able to persuade the witness to refuse to testify and the charges in both the Connors and Freeman murder cases were subsequently dropped.

Other murders were committed to enforce and enhance Jeff Fort’s control over the El Rukns. Fort ordered El Rukn members, including several defendants, to kill disloyal members and former El Rukn leaders, including Willie McLilly, Roy Love, and Mickey Cogwell. McLilly and Love were killed on November 29, 1974, and Cogwell was killed on February 25, 1977.

The El Rukns also went to extreme lengths to protect its members from criminal prosecution. In August 1977, eighteen defendants conspired to kill Audrina Thomas to prevent her from testifying against two El Rukn generals charged with murder. Then, in a case of mistaken identity, Thomas’ sister, Rowena James, was shot and killed on September 1, 1977. In January of 1987, four defendants and other El Rukn members kidnapped Patricia McKinley in an attempt to prevent her from testifying against an El Rukn general charged with the murder of Maurice Coleman.

The El Rukns committed a slew of other murders and attempted murders related to narcotics activity. On March 12, 1980, pursuant to Fort’s order, two defendants killed Douglas Ellison because of a dispute involving a narcotics debt. Three months later, eight defendants conspired to murder Lemont Timberlake because he failed to accede to demands to stop dealing narcotics in El Rukn-controlled territory. This plan was carried out on June 17, 1980, when Timberlake was shot and killed in a vacant lot on the south side of Chicago.

From about April 1981 to January 1983, as a result of a drug territorial dispute, twenty-three defendants conspired to kill the top leaders and members of the Titanic Stones, a rival gang, including Eugene Hairston, George Thomas, Barnett Hall, Ray East, Robert East, and Willie Bibbs. During that same time period, Willie Bibbs and Barnett Hall were killed and George Thomas was the target of an attempted murder. In the course of the Thomas attempt, on January 23,1983, five defendants and other gang members killed Charmaine Nathan and shot and attempted to kill Sheila Jackson.

In April 1985, as a result of another drug territorial dispute with a rival gang, twenty-three defendants conspired to kill various members of the King Cobra street gang. In furtherance of this conspiracy, during the last week of April, teams of El Rukns cruised the streets of Chicago in efforts to locate and murder King Cobra members. During this time, several defendants and other El Rukn members murdered Robert Jackson, Rico Chalmers, Glendon McKinley, and Vicki Nolden and attempted to murder Theotis Clark and Andre Chalmers. McKinley and Nolden were innocent bystanders swept up in the wave of violence.

The El Rukns committed other murders and attempted murders as a result of separate drug territorial disputes. On January 7, 1982, Bruce Davis, a rival drug dealer, and his wife Sheila were each shot about six times because Davis had ignored warnings to discontinue narcotics sales in an El Rukn-controlled territory. On February 13, 1983, another rival drug dealer, Chal-mers Tyler, was killed under similar circumstances. In a third incident, on April 28, 1984, the El Rukns killed Jerome Smith and Taiman Hickman. Smith, the leader of a rival gang, had ignored similar warnings regarding narcotics sales in El Rukn-con-trolled territory.

The El Rukns also murdered and attempted to murder rival gang members in retaliation for shootings of El Rukn members. Fort ordered the murders of Melvin and Jerry Ewing in retaliation for the 1981 murder of Carl Taylor, a former El Rukn general. El Rukn defendants subsequently shot and attempted to murder Jerry Little *1167 and Phillip Steele on February 23, 1983, in the mistaken belief that they were the Ewing brothers. Later that year, on June 21, in a conspiracy involving nineteen defendants, Ronald Bell was murdered in retaliation for his earlier attempt to murder El Rukn Thomas Pearson.

During 1985 and 1986, the El Rukns conspired to and committed interstate murder-for-hire on behalf of defendant Noah Robinson. Robinson hired the El Rukns to murder Robert Aulston, a former business partner with whom Robinson was having a legal dispute. In exchange for $10,000, several defendants travelled to Texas and attempted to murder Aulston in November 1985. Approximately one month later, Robinson again solicited the El Rukns to commit murder. This time the target was Leroy Barber, for whose murder Robinson was willing to pay $10,000. At the direction of Fort, two groups of defendants travelled to Greenville, South Carolina in attempts to locate and kill Barber. Then, on January 3, 1985, one of these groups found Barber and murdered him. Nearly two years later, in response to a grand jury investigation of this murder, Robinson hired defendant Sweeney to murder Janice Denise Rosemond, a grand jury witness who had been an eyewitness to the Barber murder. On December 4, 1987, in consideration for $5,000, Sweeney stabbed and attempted to murder Rosemond.

In other efforts to cover up the Barber murder, Robinson and other defendants attempted to prevent defendant Harris from cooperating with authorities and providing details of the murder and other El Rukn affairs. On September 30, 1987, Robinson offered to pay Harris $15,000 to provide false information to the authorities concerning Robinson’s involvement in the Barber murder and El Rukn drug trafficking. Later, on October 9, 1987, two defendants, along with other El Rukn members, fired shots into an establishment called Hank’s Fun House Tap in Milwaukee, Wisconsin, which was owned by Harris’ father, in order to intimidate Harris and prevent him from providing information to the authorities. Less than a year later, on two separate occasions in July 1988, Robinson solicited other defendants to murder Harris. Later that same month, in a final effort to persuade Harris to remain silent, Robinson offered to pay Harris to leave the country.

2. Non-Violent Racketeering Acts

Count Two alleges ninety-seven additional racketeering acts which, with one exception, are narcotics-related offenses. The only exception, designated Racketeering Act 128, charges defendants Melvin Mayes and Alan Knox with using the telephone to facilitate the acquisition of an M-72 series Light Anti-Tank Weapon, commonly referred to as a LAW rocket, in violation of 18 U.S.C. § 1952(a)(3) (1988). The narcotics-related offenses alleged in Count Two include the possession and distribution of narcotics in violation of 21 U.S.C. § 841(a)(1) (1988), the use of a communication facility to further various narcotics offenses in violation of 21 U.S.C. § 843(b) (1988), and interstate travel with intent to further narcotics offenses in violation of 18 U.S.C. § 1952 (1988). A significant majority of these offenses each involve only one or two defendants. Notably, however, Racketeering Act 31 charges thirty-seven defendants with a narcotics conspiracy in violation of 21 U.S.C. § 846 (1988).

C. Count Three-Narcotics Conspiracy

Racketeering Act 31 is repeated as a separate “substantive” offense in Count Three. This Count describes a conspiracy to possess with intent to distribute, and to distribute, multi-kilogram quantities of heroin and cocaine, hundreds of pounds of marijuana, thousands of amphetamine pills, thousands of Talwin and Triplenamin pills, multi-liter quantities of codeine syrup, and large quantities of Phencyclidine (PCP). The government contends that, on a regular basis during the course of this conspiracy, from 1966 to 1989, various defendants purchased narcotics from sources in at least seven states, including Florida, South Carolina, Mississippi, New York, Wisconsin, Illinois, and Michigan. The government further contends that narcotics the defendants sold narcotics from numerous El Rukn-controlled buildings and territories throughout the Illinois cities of Chicago, *1168 Evanston, Skokie, and Harvey, and also from Milwaukee, Wisconsin.

D. The Other Counts

With the exception of Counts One Hundred Sixty-Nine through One Hundred Seventy-Four, which charge certain defendants with firearms offenses in violation of 18 U.S.C. §§ 2, 844(d), 924(c), 922(g)(1), and 18 U.S.C.App. 1202(a)(1) (1988), the other 172 counts of the indictment reallege selected acts of racketeering from Count Two as corresponding “substantive” criminal violations. The large majority of the acts realleged are the narcotics-related offenses. Only fourteen of the remaining substantive counts correspond to violent racketeering acts, and these represent only a small portion of the violent crimes alleged in Count Two. Counts Four through Seven correspond to the King Cobra conspiracy and the related murders and attempted murders. Counts Eight through Sixteen correspond to the crimes connected to Robinson, including the attempted murder of Robert Aulston, the murder of Leroy Barber, and the related acts of witness tampering. The last violent substantive count and the final count in the indictment is Count One Hundred Seventy-Five, which corresponds to the McKinley kidnapping.

II. Severance Discussion

Numerous defendants have filed motions to sever this indictment claiming that they are improperly joined pursuant to Rule 8(b), or, in the alternative, that joinder is unduly prejudicial pursuant to Rule 14. We will discuss these motions in turn.

A. Rule 8(b)

Rule 8(b) permits joinder of an unlimited number of 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.” Fed.R.Crim.P. 8(b). In determining whether joinder is proper under this Rule, a court must look to the face of the indictment. United States v. Bruun, 809 F.2d 397, 406 (7th Cir.1987); United States v. Velasquez, 772 F.2d 1348, 1354 (7th Cir.1985), ce rt. denied, 475 U.S. 1021, 106 S.Ct. 1211, 89 L.Ed.2d 323 (1986). If the indictment alleges a conspiracy, it is well established that all members of that conspiracy are properly joined. United States v. Garner, 837 F.2d 1404, 1412 (7th Cir.1987), cert. denied, 486 U.S. 1035, 108 S.Ct. 2022, 100 L.Ed.2d 608 (1988); United States v. Dounias, 777 F.2d 346, 348 (7th Cir.1985).

Although the defendants agree with this settled principal, they nonetheless argue that they are improperly joined. Relying on Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), they argue that the indictment fails to satisfy Rule 8(b) because it alleges multiple distinct conspiracies, including separate conspiracies to murder, obstruct justice, and distribute narcotics. In Kotteakos, the Supreme Court reversed the convictions of the petitioners where the evidence established at least eight separate conspiracies connected only by a common participant. Id. at 773, 66 S.Ct. at 1252. The Court stated that a defendant has a right “not to be tried en masse for the conglomeration of distinct and separate offenses committed by others_” Id. at 775, 66 S.Ct. at 1253. Thus, according to the defendants here, Kotteakos requires a finding that they are improperly joined.

While their characterization of the indictment is correct, the defendants are wrong that the allegation of separate conspiracies renders joinder improper under Rule 8(b). With the advent of RICO, Congress significantly broadened the scope of the government’s authority to bring defendants together in one indictment. It conferred this broad authority without eviscerating the principals set forth in Kottea-kos or “radically altering] traditional conspiracy doctrine_” United States v. Riccobene, 709 F.2d 214, 224 (3d Cir.), cert. denied, 464 U.S. 849, 104 S.Ct. 157, 78 L.Ed.2d 145 (1983). Instead, Congress simply outlawed a particular conspiratorial agreement, the object of which could include the commission of a wide array of separate and distinct offenses. Section 1962(d) of the RICO statute proscribes agreements “to conduct or participate in the affairs of an enterprise through a pattern of racketeering activity.” United States v. Neapolitan, 791 F.2d 489, 498 *1169 (7th Cir.), cert. denied, 479 U.S. 940, 107 S.Ct. 422, 93 L.Ed.2d 372 (1986). A single “pattern of racketeering activity” can include numerous distinct conspiracies. Riccobene, 709 F.2d at 224-25; United States v. Sutherland, 656 F.2d 1181, 1192 (5th Cir.1981), cert. denied, 455 U.S. 949, 102 5.Ct. 1451, 71 L.Ed.2d 663 (1982). Consequently, “a series of agreements that under pre-RICO law would constitute multiple conspiracies could under RICO be tried as a single ‘enterprise’ conspiracy” in violation of § 1962(d). 6 Sutherland, 656 F.2d at 1192; see also Neapolitan, 791 F.2d at 496 n. 3, 501; Riccobene, 709 F.2d at 224-25; United States v. Castellano, 610 F.Supp. 1359, 1396 (S.D.N.Y.1985); cf. United States v. Napue, 834 F.2d 1311, 1332 (7th Cir.1987) (if separate agreements “represent stages or different functions to be performed in the formulation of a larger scheme, the object of which is to effectuate a single unlawful result, then there is a single conspiracy”). Therefore, consistent with the rationale of Kotteakos, the defendants in this case are properly joined because they are each alleged members of a single and unifying RICO conspiracy. The separate and distinct underlying conspiracies are simply part of the “same series of acts or transactions constituting [this] of-fense_” Fed.R.Crim.P. 8(b).

Some defendants argue in the alternative that joinder is improper because the indictment charges certain defendants with substantially more conspiratorial ae-tivity than others. 7 This argument has no merit. According to the Seventh Circuit in United States v. Whaley:

Various people knowingly joining together in furtherance of a common design or purpose constitute a single conspiracy. While the conspiracy may have a small group of core conspirators, other parties who knowingly participate with these core conspirators and others to achieve a common goal may be members of an overall conspiracy.

830 F.2d 1469, 1474 (7th Cir.1987) (quoting United States v. Varelli, 407 F.2d 735, 742 (7th Cir.1969), cert. denied, 405 U.S. 1040, 92 S.Ct. 1311, 31 L.Ed.2d 581 (1972)), cert. denied, 486 U.S. 1009, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988). Moreover, mere ignorance of the identities of all of the conspirators or of all the details of the conspiracy is immaterial. United States v. Fitzgerald, 579 F.2d 1014, 1018 (7th Cir.), cert. denied, 439 U.S. 1002, 99 S.Ct. 610, 58 L.Ed.2d 677 (1978); United States v. Arvanitis, 676 F.Supp. 840, 844 (N.D.Ill.1987), affd sub nom. United States v. Gaitanis, 902 F.2d 37 (7th Cir.1990). Thus, regardless of the alleged extent of any one defendant’s involvement, all of the defendants in this case are properly joined for purposes of Rule 8(b) because they each allegedly agreed to the “overall objective,” namely to conduct or participate in the affairs of the so called “El Rukn Nation” through a pattern of racketeering. 8 Indeed, the govern *1170 ment claims that each of the moving defendants willingly held a formal leadership position, either as a “general” or “officer,” and thus “operated and promoted the [racketeering] activities of the enterprise, and exercised authority over subordinate members.” We conclude that these defendants are properly joined. Accordingly, their motions to sever pursuant to Rule 8(b) are denied. 9

B. Rule lip

Having decided that the requirements of Rule 8(b) are met by the allegations in the indictment, we turn to Rule 14. As indicated above, although join-der is technically proper under Rule 8(b), Rule 14 authorizes severance if such join-der is prejudicial to the defendants. United States v. Lane, 474 U.S. 438, 447, 106 S.Ct. 725, 731, 88 L.Ed.2d 814 (1986); Garner, 837 F.2d at 1413. According to Rule 14:

If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant the severance of a defendant or provide whatever relief justice requires.

Fed.R.Crim.P. 14; see also ABA Standards for Criminal Justice, Joinder and Severance § 13-3.1(b)(1) (1980) (severance should be granted whenever it “is deemed to promote a fair determination of a defendant’s guilt or innocence of each offense”). This Rule must be read against the backdrop of Rule 2, which provides that the Federal Rules of Criminal Procedure “are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.” Fed.R.Crim.P. 2.

The District Court is given wide latitude in determining whether a Rule 14 severance is appropriate. The decision is within its “sound discretion” and “will not be overturned absent a clear showing of an abuse of that discretion.” United States v. Caliendo, 910 F.2d 429, 437 (7th Cir.1990); see also United States v. McAnderson, 914 F.2d 934, 948 (7th Cir.1990); United States v. Penson, 896 F.2d 1087, 1094 (7th Cir.1990). This deference is due in part to the fact that the “balancing of the cost of conducting separate trials and the possible prejudice inherent in a single trial is best conducted by the trial court_” Caliendo, 910 F.2d at 437 (quoting United States v. Moya-Gomez, 860 F.2d 706, 754 (7th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 3221, 106 L.Ed.2d 571 (1989)). To determine if severance is appropriate in the present case, we must weigh the public interest in a joint trial of the twenty-two to twenty-nine defendants against the possibility of undue prejudice or confusion arising from such a trial. See United States v. *1171 Zanin, 831 F.2d 740, 744 (7th Cir.1987); United States v. Rivera, 825 F.2d 152, 159 (7th Cir.1987), cert. denied, 484 U.S. 979, 108 S.Ct. 494, 98 L.Ed.2d 492 (1987); United States v. Racente, 503 F.2d 543, 549 n. 8 (7th Cir.) (must balance “possible prejudice” against “inconvenience and expense to the Government, the court and the jurors”), ce rt. denied, 419 U.S. 1048, 95 S.Ct. 623, 42 L.Ed.2d 642 (1974); see also 8 R. Cipes, I. Hall & M. Waxner, Moore’s Federal Practice ¶ 14.02(1), at 14-5 (2d ed. 1990).

1. Public Interest

a. Advantages of Joint Trial

To strike the appropriate balance, we recognize, as we must, the oft-cited “strong public interest in having persons jointly indicted tried together, especially where the evidence against the defendants arose out of the same acts or series of acts.” United States v. Turk, 870 F.2d 1304, 1306 (7th Cir.1989) (quoting United States v. Oxford, 735 F.2d 276, 280 (7th Cir. 1984)); see also Caliendo, 910 F.2d at 437. Joint trials generally “reduce the expenditure of judicial and prosecutorial time [and] ... the claims the criminal justice system makes on witnesses, who need not return to court for additional trials.” United States v. Buljubasic, 808 F.2d 1260, 1263 (7th Cir.), cert. denied, 484 U.S. 815, 108 S.Ct. 67, 98 L.Ed.2d 31 (1987). For this reason, joint trials are considered “an essential element of the quick administration of justice.” United States v. Walters, 913 F.2d 388, 393 (7th Cir.1990). Certainly, “[i]f every defendant who wanted a severance was given one, the slow pace of our court system would go from a crawl to paralysis.... ” Id.

Joint trials are also favored because of their purported effect on the accurate determination of culpability. According to the court in Buljubasic, joint trials

reduce the chance that each defendant will try to create a reasonable doubt by blaming an absent colleague, even though one or the other (or both) undoubtedly committed a crime. The joint trial gives the jury the best perspective on all of the evidence and therefore increases the likelihood of a correct outcome.

808 F.2d at 1263; see also Richardson v. Marsh, 481 U.S. 200, 208-210, 107 S.Ct. 1702, 1708, 95 L.Ed.2d 176 (1987).

b. Special Concerns Raised by Prospect of Joint Mega-Trial

It has long been assumed that the advantages referred to above adequately support a strong presumption in favor of joint trials and against severance. See Caliendo, 910 F.2d at 437; see also Bruton v. United States, 391 U.S. 123, 143, 88 S.Ct. 1620, 1631, 20 L.Ed.2d 476 (1968) (White, J., dissenting) (“[unquestionably, joint trials are more economical and minimize burdens on witnesses, prosecutors, and courts” and “avoid delays in bringing those accused of crime to trial”). Thus, to prevail in a motion for severance, a defendant ordinarily “must show that she could not possibly have a fair trial without a severance.” Caliendo, 910 F.2d at 437; see also United States v. Holleman, 575 F.2d 139, 142 (7th Cir.1978) (“severance need be granted only for the most compelling reasons”); Arvanitis, 676 F.Supp. at 847. However, the recent proliferation of complex, multi-de-fendant trials in this district and others, prompted in large part by RICO, has raised doubts about the foundations of this onerous burden. See generally Federal Bar Council Committee on Second Circuit Courts, A Proposal Concerning Problems Created by Extremely Long Criminal Trials (1989) (hereinafter Extremely Long Criminal Trials). Some courts, when faced with a multitude of defendants indicted together under the expansive RICO umbrella, have questioned the wisdom of blindly embracing the purported advantages of a joint trial while, at the same time, disregarding the manifest difficulties presented by what is commonly called a “mega-trial.” See, e.g., United States v. Mancuso, 130 F.R.D. 128, 131 (D.Nev. 1990); United States v. Gallo, 668 F.Supp. 736, 754 (E.D.N.Y.1987).

A careful review of these difficulties reveals a point of diminishing returns with respect to the net benefits of a joint *1172 trial as the number of defendants and complexity of the indictment increases. Accordingly, at some point, the oft-cited advantages of a joint trial are outweighed by the manifest disadvantages of a large and protracted trial. Based on this abstract supposition, the Second Circuit, in United States v. Casamento, 887 F.2d 1141, 1152 (2d Cir.1989), cert. denied, — U.S. -, — U.S. -, 110 S.Ct. 1138, 2175, 107 L.Ed.2d 1043, 109 L.Ed.2d 504 (1990), adopted a presumption against a joint trial and for severance when faced with the prospect of a mega-trial. It counseled that in the event the estimated length of the government’s case is more than four months, the prosecutor should “present a reasoned basis to support a conclusion that a joint trial of all the defendants is more consistent with the fair administration of justice than some manageable division of the case into separate trials for groups of defendants.” Id. If, in addition to an estimated length of more than four months, the case involves more than ten defendants, “the prosecutor should make an especially compelling justification for a joint trial.” Id.

Although the approach of the Second Circuit is necessarily arbitrary, it is well-taken. It correctly recognizes that the broad societal disadvantages of large and protracted joint trials, some of which are referred to below, may outweigh their arguable advantages. See generally Dawson, Joint Trials of Defendants in Criminal Cases: An Analysis of Efficiencies and Prejudices, 77 Mich.L.Rev. 1379 (1979). Accordingly, a strong presumption in favor of joint trials is not justified in the context of an inordinately complex mega-trial like the one proposed here, where the principal nexus between the charges is that the defendants allegedly were associated with the same criminally-oriented gang.

c. Disadvantages of Joint Mega-Trial

One disadvantage, which is particularly relevant in this case, is the significant exacerbation of the public cost of providing defense counsel to each defendant. All but one of the defense attorneys currently representing a defendant in this case are being federally funded. Testimony directly implicating most of their clients is projected to last not more than a few weeks, and, for many, not more than a few days. Thus, in a single trial, most of these twenty-one to twenty-eight appointed attorneys would be compelled to sit idly for the duration of a lengthy trial where the vast majority of evidence deals solely with the criminal activities of other attorneys’ clients. See United States v. Phillips, 664 F.2d 971, 1017 n. 68 (5th Cir.1981) (defendant complains that only 120 pages of 12,-000 page transcript concerned his activities), ce rt. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982); United States v. Morrow, 537 F.2d 120, 137 (only twenty-five pages of transcript devoted to testimony concerning defendant’s activities out of a total record of “over fifty volumes”), ce rt. denied, 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977); United States v. Kelly, 349 F.2d 720, 759 (2d Cir.1965) (defendant’s name first mentioned three months into a nine-month trial and then only sporadically thereafter),