Opinion and Order — United States v. Konrad Bicher (Southern District of New York, Document 35)

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An Opinion and Order dated March 7, 2023, by Judge Lorna G. Schofield in United States v. Konrad Bicher, 22 Cr. 589 (LGS) (Document 35), denying Defendant's motion to sever counts. The three-count Indictment charges wire fraud in a scheme to defraud New York City landlords with apartment leases (Count One), wire fraud in a scheme to obtain Government-guaranteed loans through the Payment Protection Program (Count Two), and aggravated identity theft (Count Three). The Court finds both schemes relate to Defendant's control over companies that rented apartment units on a short-term basis, with some overlap in companies and bank accounts. It states Defendant fails to articulate prejudice that a limiting instruction would not cure.

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             Case 1:22-cr-00589-LGS Document 35 Filed 03/07/23 Page 1 of 4


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
 -------------------------------------------------------------- X
                                                                :
 UNITED STATES OF AMERICA,                                      :
                                                                :
                                                                :     22 Cr. 589 (LGS)
                            -against-                           :
                                                                :   OPINION AND ORDER
 KONRAD BICHER,                                                 :
                                              Defendant. :
                                                                :
 ---------------------------------------------------------------X

LORNA G. SCHOFIELD, District Judge:

        Defendant is charged in a three-count indictment in connection with two alleged fraudulent

schemes. Defendant brings a motion to sever counts. For the reasons below, the motion is denied.

I.      BACKGROUND

        Defendant was arrested on June 29, 2022, pursuant to a one-count Complaint, sworn to June

27, 2022. Familiarity with its allegations is assumed. On October 27, 2022, Defendant was charged

in a three-count Indictment. Count One charges Defendant with wire fraud in a scheme to defraud

New York City landlords by entering into lease agreements to rent apartment units in Manhattan

with no intention of abiding by the lease terms, including the prohibition on renting the units to

third parties on a short-term basis and the obligations to make rental payments (the “Rental Property

Scheme”). Count Two charges Defendant with wire fraud in a scheme to obtain fraudulent

Government-guaranteed loans through the Payment Protection Program (“PPP”) of the United

States Small Business Administration (the “PPP Loan Scheme”). Count Three charges Defendant

with aggravated identity theft in connection with the PPP Loan Scheme.

II.     DISCUSSION

        Defendant moves to sever Count I from Counts II and III, arguing that a joint trial of all

three counts would violate Federal Rule of Criminal Procedure 14(a). That rule states: “If the
            Case 1:22-cr-00589-LGS Document 35 Filed 03/07/23 Page 2 of 4


joinder of offenses or defendants in an indictment . . . 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.” The Government opposes the motion.

       A. Applicable Law

       The Government may join multiple offenses in an indictment only if the offenses are “of the

same or similar character, or are based on the same act or transaction, or are connected with or

constitute parts of a common scheme or plan.” Fed. R. Crim. P. 8(a). Rule 8(a) requires only that

the offenses be “somewhat alike” or have a “general likeness.” United States v. Rivera, 546 F.3d

245, 253 (2d Cir. 2008) (internal quotation marks omitted); accord United States v. Griffin, 811 F.

App’x 683, 685 (2d Cir. 2020) (summary order). “Joinder is proper where the same evidence may

be used to prove each count, or if the counts have a sufficient logical connection.” United States v.

Page, 657 F.3d 126, 129 (2d Cir. 2011) (cleaned up); accord United States v. Kemp, No. 21 Crim.

1684, 2023 WL 405763, at *6 (2d Cir. Jan. 26, 2023). Rule 8 provides a “liberal standard for

joinder.” United States v. McGrath, 558 F.2d 1102, 1106 (2d Cir. 1977); accord United States v.

Spear, No. 20 Crim. 51, 2021 WL 794784, at *4 (D. Vt. Mar. 2, 2021).

       Even if counts within an indictment are properly joined under Rule 8, the Court may order

severance of offenses under Rule 14(a) if the defendant may suffer prejudice by being required to

defend the multiple counts at trial. See United States v. Werner, 620 F.2d 922, 928 (2d Cir. 1980);

accord United States v. Samuels, No. 18 Crim. 306, 2020 WL 5517772, at *3 (S.D.N.Y. Sept. 14,

2020). “Rule 14 does not require severance even if prejudice is shown; rather, it leaves the tailoring

of the relief to be granted, if any, to the district court’s sound discretion.” Zafiro v. United States,

506 U.S. 534, 538-39 (1993). Severance should be granted “under Rule 14 only if there is a serious

risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the

jury from making a reliable judgment about guilt or innocence.” Id. at 539; accord United States v.




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           Case 1:22-cr-00589-LGS Document 35 Filed 03/07/23 Page 3 of 4


Cacace, 796 F.3d 176, 192 (2d Cir. 2015). “The principles that guide the district court’s

consideration of a motion for severance usually counsel denial.” United States v. Rosa, 11 F.3d

315, 341 (2d Cir. 1993); accord United States v. Tuzman, 301 F. Supp. 3d 430, 440 (S.D.N.Y.

2017). “[L]ess drastic measures [than severance], such as limiting instructions, often will suffice to

cure any risk of prejudice and permit joinder.” Page, 657 F.3d at 129 (alteration in original)

(internal quotation marks omitted).

       B. Analysis

       For the reasons below, Defendant’s motion to sever Count I is denied. He argues,

principally, that “there is no logical connection between Count I and Counts II & III.” The latter

charges do not share a “general likeness” to the conduct alleged in Count I, as the “facts and the

manner in which the schemes were carried out are completely dissimilar.” As “evidence supporting

Counts II and III is different in nature and would be different from that introduced in any trial on

Count I,” Defendant would be unfairly prejudiced by a joint trial of the three counts. Defendant

agrees that Counts II and III should be tried together.

       Defendant’s argument is unpersuasive. Although Counts I and II arise out of different

alleged schemes -- one involving allegedly fraudulent PPP loans and the other lease agreements for

residential apartment units -- both relate to Defendant’s control over companies that rented

apartment units on a short-term basis. There appears also to be some overlap in the companies

involved across the two schemes, as well as the bank accounts where the proceeds were sent. The

schemes, therefore, have a “general likeness” sufficient to satisfy the “liberal standard” of Rule 8(a).

McGrath, 558 F.2d at 1106.

       Defendant fails to articulate how he would be prejudiced by a joint trial, and why a “less

drastic” measure such as a limiting instruction would not cure the risk of any such prejudice. He

contends that “joinder of these counts” precludes “any reasonable juror from being able to follow a




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proper limiting instruction, causing [Defendant] to suffer a significant danger of being unfairly

prejudiced.” The Court perceives no such prejudice, much less any that “is sufficiently severe to

outweigh the judicial economy that would be realized by avoiding multiple lengthy trials.” United

States v. Guttenberg, No. 7 Crim. 141, 2007 WL 4115810, at *8 (S.D.N.Y. Nov. 14, 2007). Juries

“are not only able to compartmentalize [evidence] as required, but do it with care and, frequently,

visible results in the form of verdicts that distinguish among counts.” United States v. Buyer, No.

22 Crim. 397, 2023 WL 1381970, at *1 (S.D.N.Y. Jan. 31, 2023) (alteration in original) (internal

quotation marks omitted).

III.   CONCLUSION

       For the foregoing reasons, Defendant’s motion to sever counts is DENIED.

       The Clerk of Court is respectfully directed the close the motion at Dkt. No. 28.

Dated: March 7, 2023
       New York, New York




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