Case 7:21-cr-00502-PMH Document 90 Filed 12/12/22 Page 1 of 13
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`---------------------------------------------------------X
`UNITED STATES OF AMERICA,
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`v.
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`ROHARIL CRUZ,
`MAX JOSE LAMARCHE,
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`Defendants.
`---------------------------------------------------------X
`PHILIP M. HALPERN, United States District Judge:
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`MEMORANDUM
`OPINION AND ORDER
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`21-CR-00502 (PMH)
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`Roharil Cruz (“Cruz”) and Max Jose Lamarche ( “Lamarche” and together with Cruz,
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`“Defendants”) each stand charged in a one-count indictment of conspiracy to distribute narcotics
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`in violation of 21 U.S.C. § 846. (Doc. 9). Pending presently before the Court are: (1) Defendants’
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`joint motion to dismiss the indictment under Federal Rule of Criminal Procedure 12 (Doc. 66);
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`(2) Lamarche’s motion to suppress physical evidence and statements under Federal Rule of
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`Criminal Procedure 12(b)(3) (Doc. 68); and (3) Lamarche’s motion to sever his case under
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`Federal Rule of Criminal Procedure 14 (id.). The Court held a status conference on
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`November 9, 2022 and heard argument from the parties on the extant motions. (See Nov. 9, 2022
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`Min. Entry).
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`Based upon the parties’ written submissions, oral argument, and for the reasons set forth
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`below, Defendants’ motions are DENIED.
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`BACKGROUND
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`The facts recited herein are undisputed or, where disputed, are taken most favorably to
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`Defendants.1
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`On or about June 3, 2021, a confidential informant (“CI”) informed the FBI that Cruz
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`could supply the CI with fentanyl pills. (Doc. 71-2 ¶ 5; Doc. 71-3 ¶ 5). At approximately 8:30
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`p.m., the CI made multiple recorded calls to Cruz to arrange to purchase approximately 5,000
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`fentanyl pills for $7.50 per pill. (Doc. 71-2 ¶ 6; Doc. 71-3 ¶ 6). The CI told Cruz, during a call at
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`approximately 10:10 p.m., to meet them in the vicinity of the Yonkers Casino in Yonkers, New
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`York, around midnight. (Doc. 71-2 ¶ 6; Doc. 71-3 ¶ 6).
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`The CI took law enforcement officers to a residence in the Bronx in the vicinity of 175th
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`Street and Southern Boulevard where, based on prior interactions, the CI knew that Cruz lived.
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`(Doc. 71-3 ¶ 7). At approximately 11:00 p.m., law enforcement observed a 2019 black Audi SQ5
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`with New York registration (the “Audi”) park on the corner of 175th Street and Southern
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`Boulevard. (Id.; Doc. 71-4). One of the two occupants in the Audi, the passenger, was identified
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`by law enforcement as Cruz. (Doc. 71-3 ¶ 7; Doc. 71-4). The other occupant, the driver, was
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`1 “[A]n evidentiary hearing on a motion to suppress ordinarily is required if the moving papers are
`sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested
`issues of fact going to the validity of the search are in question.” United States v. Cantoni, No. 19-4358-
`CR, 2022 WL 211211, at *3 (2d Cir. Jan. 25, 2022) (quoting United States v. Watson, 404 F.3d 163, 167
`(2d Cir. 2005) (alteration in original)). Here, however, an evidentiary hearing is unnecessary because of
`the absence of any “contested issues of fact that must be resolved in order for this Court to rule on [the]
`motion to suppress.” United States v. Holt, No. 21-CR-00080, 2021 WL 5281366, at *2 (D. Conn. Nov.
`12, 2021); see also United States v. Merced, No. 19-CR-00832, 2021 WL 5647827, at *11 (S.D.N.Y.
`Nov. 30, 2021). As indicated, the Court credits Lamarche’s assertions made in his declaration
`accompanying the motion; but the only facts arguably contested by Lamarche’s declaration concern the
`visibility of the contents of the brown paper bag seized from the Audi. As noted infra, the Court need not
`resolve that question to fully adjudicate the instant motions. See, e.g., United States v. Caming, 968 F.2d
`232, 236 (2d Cir. 1992) (holding that the district court was not required to hold an evidentiary hearing
`before denying a motion to suppress where the defendant’s affidavit did not create a dispute over any
`material facts and where the factual issues the defense contended necessitated a hearing were irrelevant to
`the inquiry before the court), abrogated on other grounds by Peck v. United States, 73 F.3d 1220 (2d Cir.
`1995).
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`2
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`“later identified” as Lamarche. (Doc. 71-4). Law enforcement observed Defendants enter the
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`building and, about ten minutes later, exit the building together. (Id.; Doc. 71-3 ¶ 7). Lamarche
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`returned to the Audi and drove away, while Cruz walked away. (Doc. 71-4; Doc. 71-3 ¶ 7).
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`The CI had another call with Cruz around midnight, during which they ultimately agreed
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`that they would meet at the CVS parking lot in Yonkers, New York to conduct the transaction.
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`(Doc. 71-2 ¶ 6; 71-3 ¶ 6). The CI waited for Cruz in the CVS parking lot and shortly after
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`midnight, the Audi pulled into the parking lot. (Doc. 71-5; Doc. 71-2 ¶ 7(a); 71-3 ¶ 8(a); see also
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`Doc. 70, “Lamarche Decl.” ¶ 3 (“Not long after 12:00 a.m. on June 4, 2021, I drove my black
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`Audi into a CVS store parking lot in Yonkers, New York.”).
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`Law enforcement arrested Lamarche and conducted a search of the Audi. (Lamarche
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`Decl. ¶¶ 5-8; Doc. 71-5). A brown bag containing approximately 5,000 pills was seized from the
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`Audi and the pills were field tested. (Doc. 71-2 ¶ 7(b); 71-3 ¶ 8(b)). The first field test was
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`inconclusive, but the subsequent field test was positive for the presence of fentanyl. (Doc. 71-2 ¶
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`7(b); 71-3 ¶ 8(b)). Lamarche was taken to the Yonkers Police Department where he waived his
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`Miranda rights and advised law enforcement that he was told by another individual to deliver the
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`pills from a location in the Bronx, New York, to an address in Yonkers, New York. (Doc. 71-2 ¶
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`8; 71-3 ¶ 9; Doc. 71-5).
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`The Government produced in its Rule 16 discovery, inter alia, a laboratory report from
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`the Yonkers Police Department’s forensic laboratory indicating that a sample of the pills
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`“contains para-/ortho-/meta-Fluorofentanyl.” (Doc. 67-2). The report does not specifically
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`indicate which of the three analogues (para-fluorofentanyl, ortho-fluorofentanyl, or meta-
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`fluorofentanyl) were present in the evidence. The report notes explain that the isomer could not
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`be determined by the Yonkers Police Department’s forensic laboratory: “I explained that the
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`3
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`Case 7:21-cr-00502-PMH Document 90 Filed 12/12/22 Page 4 of 13
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`drug found had positional isomers (all of which are not controlled) and that the YPDFSL could
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`not determine which isomer the compound was . . . . the laboratory could not determine the
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`isomer for the compound . . . the laboratory follows the NY State Public Health Law list of
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`controlled substances.” (Id. at 65-67).
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`Joint Motion to Dismiss Indictment
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`ANALYSIS
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`I.
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`Defendants jointly move under Federal Rule of Criminal Procedure 12 to dismiss the
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`indictment. “Before trial, a defendant ‘may raise by . . . motion any defense, objection, or request
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`that the court can determine without a trial on the merits,’ including a motion alleging ‘a defect
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`in the indictment.’” United States v. Aiyer, 33 F.4th 97, 116 (2d Cir. 2022) (quoting Fed. R.
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`Crim. P. 12(b)(1)(B)). Defendants move to dismiss the indictment on the grounds that it violates
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`the Fifth and Sixth Amendments and the rules of fundamental fairness.
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`“An indictment returned by a legally constituted and unbiased jury . . . if valid on its face,
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`is enough to call for a trial of the charge on the merits.” Costello v. United States, 350 U.S. 359,
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`363 (1956). To be valid on its face, “[a]n indictment need do little more than to track the
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`language of the statute charged and state the time and place (in approximate terms) of the alleged
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`crime.” United States v. Wedd, 993 F.3d 104, 120 (2d Cir. 2021) (alteration omitted). The form is
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`governed by Federal Rule of Criminal Procedure 7(c)(1), which requires that an indictment be a
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`plain, concise and definite written statement of the essential facts constituting the offense
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`charged. “An indictment is sufficient as long as it (1) contains the elements of the offense
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`charged and fairly informs a defendant of the charge against which he must defend, and (2)
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`enables the defendant to plead an acquittal or conviction in bar of future prosecutions for the
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`4
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`Case 7:21-cr-00502-PMH Document 90 Filed 12/12/22 Page 5 of 13
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`same offense.” United States v. Dawkins, 999 F.3d 767, 779 (2d Cir. 2021) (internal quotation
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`marks omitted).
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`District courts considering Rule 12 motions can “make factual determinations in matters
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`that do not implicate the general issue of a defendant’s guilt,” but “cannot resolve ‘a factual
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`dispute that is inextricably intertwined with a defendant’s potential culpability,’ as that is a role
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`reserved for the jury.” Aiyer, 33 F.4th at 116 (quoting United States v. Sampson, 898 F.3d 270,
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`281 (2d Cir. 2018)); see also United States v. Alfonso, 143 F.3d 772, 776-77 (2d Cir. 1998)
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`(inquiry on pretrial motion to dismiss should not go beyond the face of the indictment and into
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`the sufficiency of the evidence that would be introduced by the government at trial); United
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`States v. Griffith, 515 F. Supp. 3d 106, 113 (S.D.N.Y. 2021) (“A pretrial motion to dismiss an
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`indictment must not weigh the sufficiency of the evidence.”).
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`Defendants’ argument that the indictment fails to state facts specific enough to describe a
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`particular criminal act and the Government therefore proceeds on an “either-or” theory of
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`prosecution falls flat. The indictment in this case pleads the elements of the statute charged (21
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`U.S.C. § 846); the controlled substance involved in the charged conspiracy (“para-/ortho-/meta-
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`fluorofentanyl, an analogue of fentanyl”); the quantity involved (100 grams and more); the
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`relevant time period (“[f]rom on or about June 3, 2021, to on or about June 4, 2021”); and the
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`approximate location (in the Southern District of New York and elsewhere). (Doc. 67-1). The
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`indictment is valid on its face. See Wedd, 993 F.3d at 120; see also United States v. Ulbricht, No.
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`14-CR-00068, 2014 WL 5410049, at *4 (S.D.N.Y. Oct. 24, 2014) (“An indictment is not
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`defective simply because it charges a defendant with alternative offenses.”); United States v.
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`Logan, 845 F. Supp. 2d 499, 515 (E.D.N.Y. 2012) (“An indictment under § 846 ‘need only
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`5
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`allege the existence of a narcotics conspiracy, a relevant time frame, and the statute alleged to be
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`violated.’” (quoting United States v. Macklin, 927 F.2d 1272, 1276 (2d Cir. 1991)).
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`Moreover, and contrary to Defendants’ assertion, the indictment indeed cites “other
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`relevant provisions of the United States Code,” namely 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)—
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`the specific offense for which Defendants are charged: conspiracy to distribute 100 grams or
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`more of a mixture or substance containing a detectable amount of any analogue of fentanyl. 21
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`U.S.C. § 841(b)(1)(A)(vi).
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`Defendants argue that only two of the three fentanyl analogues charged in the indictment
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`are “scheduled fentanyl analogues,” meta-fluorofentanyl is not a “controlled substance
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`analogue,” and therefore, they cannot be charged with conspiracy to distribute such an
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`analogue.2 A substance can be a fentanyl analogue under 21 U.S.C. § 841(b)(1)(A)(vi) even if it
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`is not a “controlled substance analogue” under 21 U.S.C. § 802(32). United Sates v. McCray, 7
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`F.4th 40, 45-46 (2d Cir. 2021). “Neither § 841 nor the definitional statute—21 U.S.C. § 802—
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`defines the term ‘analogue’ or the phrase ‘any analogue of [fentanyl].’” Id. at 45. When a term is
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`not defined in a statute, it is given its ordinary meaning. Id. at 45-46; Encino Motorcars, LLC v.
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`Navarro, 138 S. Ct. 1134, 1140 (2018). The Second Circuit, employing the plain and ordinary
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`meaning of the word, has explained that “analogue” is defined as “a chemical compound
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`structurally similar to another but differing often by a single element of the same valence and
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`group of the periodic table as the element it replaces.” Id. at 46 (quoting Webster’s New
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`Collegiate Dictionary (9th ed. 1985)). The question of whether a particular substance is
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`structurally similar to another substance is a proper subject for the jury. United States v. Lawton,
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`759 F. App’x 66, 67 (2d Cir. 2019) (“[J]uries may decide the question of “substantial similarity”
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`2 The laboratory report identifies the substance as para-, ortho-, or meta-fluorofentanyl but does not
`determine the positional isomer because the laboratory follows New York State Public Health Laws, and
`only para- and ortho-fluorofentanyl are controlled under State law. See N.Y. Pub. Health Law §§ 3306.
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`6
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`without running afoul of vagueness concerns.”); United States v. Demott, 906 F.3d 231, 239 (2d
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`Cir. 2018) (holding that whether a particular substance is substantially similar to a controlled
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`substance is a factual question for the jury).
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`Whether the Government’s evidence sufficiently establishes that meta-fluorofentanyl is
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`an analogue of fentanyl under § 841 is not the proper subject of a pretrial motion to dismiss. See
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`Aiyer, 33 F.4th at 116. Accordingly, Defendants’ joint motion to dismiss the indictment is
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`denied.3
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`II. Motions to Suppress
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`Lamarche moves to suppress the physical evidence seized from his Audi, arguing that
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`law enforcement did not have probable cause to arrest him or to search his vehicle. He further
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`argues that his post-arrest, Mirandized statements to law enforcement should be suppressed as
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`the tainted fruit of the foregoing Fourth Amendment violations.
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`The Fourth Amendment provides, in pertinent part, that “[t]he right of the people to be
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`secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,
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`shall not be violated ....” U.S. Const. amend. IV. As that “text makes clear, the concept of
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`reasonableness is the touchstone of constitutionality of a governmental search. What is
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`reasonable, of course, depends on all of the circumstances surrounding the search or seizure and
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`3 Defendants requested, in the event their motion was denied, that the Court preclude the Government
`from using any expert disclosures that have not yet been disclosed. Preclusion is unwarranted under
`Federal Rule of Criminal Procedure 16. Until December 1, 2022 (and at the time Defendants filed this
`motion), the rule did not provide for the specific timing of expert witness disclosures, though it was
`expected that such disclosures occur in a “timely fashion.” United States v. Freeman, No. 18-CR-00217,
`2019 WL 2590747, at *3 (S.D.N.Y. June 25, 2019). The rule now provides that “[t]he court, by order or
`local rule, must set a time for the government to make its disclosures. The time must be sufficiently
`before trial to provide a fair opportunity for the defendant to meet the government’s evidence.” Fed. R.
`Crim. P. 16(a)(1)(G)(ii). The timeline proposed by the Government, that it would “produce expert
`disclosure materials in accordance with the Court’s trial schedule . . . and at least 30 days before trial”
`(Doc. 72 at 12), is reasonable. See, e.g. Freeman, 2019 WL 2590747, at *3 (four weeks before trial);
`United States v. Ojeikere, No. 03-CR-00581, 2005 WL 425492, at *8 (S.D.N.Y. Feb. 18, 2005) (one
`month before trial); United States v. Lino, No. 00-CR-00632, 2001 WL 8356, at *21 (S.D.N.Y. Jan. 2,
`2001) (30 days before trial). This branch of Defendants’ motion is therefore denied without prejudice.
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`7
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`Case 7:21-cr-00502-PMH Document 90 Filed 12/12/22 Page 8 of 13
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`the nature of the search or seizure itself.” MacWade v. Kelly, 460 F.3d 260, 267-68 (2d Cir.
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`2006) (internal citations and quotation marks omitted). “A court’s ‘assessment as to whether
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`probable cause existed at the time of the arrest is to be made on the basis of the collective
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`knowledge of the police, rather than on that of the arresting officer alone.’” Daniels v. City of
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`New York, No. 15-CV-2251, 2016 WL 4368378, at *5 (S.D.N.Y. Aug. 14, 2016) (quoting
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`Husbands ex rel. Forde v. City of New York, 335 F. App’x 124, 127 (2d Cir. 2009)); United
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`States v. Colon, 250 F.3d 130, 135 (2d Cir. 2001) (“Under the collective or imputed knowledge
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`doctrine, an arrest or search is permissible where the actual arresting or searching officer lacks
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`the specific information to form the basis for probable cause or reasonable suspicion but
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`sufficient information to justify the arrest or search was known by other law enforcement
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`officials initiating or involved with the investigation.”).
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`“Warrantless searches and seizures are per se unreasonable under the Fourth
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`Amendment—subject only to a few specifically established and well-delineated exceptions.”
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`United States v. Weaver, 9 F.4th 129, 138 (2d Cir. 2021) (internal quotation marks omitted). One
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`such exception is the automobile exception. Under the automobile exception, law enforcement
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`“may conduct a warrantless search of a readily mobile motor vehicle if probable cause exists to
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`believe the vehicle contains contraband or other evidence of a crime.” United States v. Gaskin,
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`364 F.3d 438, 456 (2d Cir. 2004). “Where the probable cause upon which the search is based
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`extends to the entire vehicle, the permissible scope of a search pursuant to this exception
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`includes every part of the vehicle and its contents including all containers and packages that may
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`conceal the object of the search.” United States v. Navas, 597 F.3d 492, 497 (2d Cir. 2010)
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`(quotation marks and alteration omitted).
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`8
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`Lamarche does not dispute that: (1) on June 3, 2021, at approximately 8:30 p.m., the CI
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`made multiple audio recorded calls to Cruz to arrange to purchase approximately 5,000 fentanyl
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`pills at around midnight; (2) at approximately 11:00 p.m., law enforcement observed the Audi in
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`the vicinity of Cruz’s residence in the Bronx, New York; (3) law enforcement observed
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`Defendants together exiting the Audi and entering the building; (4) law enforcement observed
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`Defendants, ten minutes later, exit the building together and Lamarche return to the Audi and
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`drive away; (5) at approximately 11:41 p.m., Cruz told the CI he wold send “Max” and the CI
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`should give money to “Max”;4 (6) the CI and Cruz ultimately agreed to meet at the CVS parking
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`lot in Yonkers, New York; and (7) Lamarche arrived alone in the Audi to the CVS parking lot in
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`Yonkers, New York, not long after 12:00 a.m. on June 4, 2021.
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`Based on the totality of these undisputed facts, law enforcement had probable cause to
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`arrest Lamarche when he arrived in the Audi in the CVS parking lot. The events leading up to
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`the arrest, viewed from the standpoint of an objectively reasonable police officer, amounts to
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`probable cause. United States v. Vasquez, 297 F. Supp. 2d 696, 698 (S.D.N.Y. 2004).
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`For the same reasons, there existed probable cause to search the Audi and the brown
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`paper bag therein. Lamarche argues that because there was no prior information that Lamarche
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`specifically would be conducting the drug transaction or that the Audi was being used to
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`transport illegal drugs, law enforcement lacked probable cause to search the Audi and the brown
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`paper bag therein. The Court disagrees. Law enforcement had probable cause to believe the Audi
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`contained the pills the CI was expecting based on his arrangement with Cruz, predicated upon
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`4 Lamarche takes issue with the description of this recorded call in the Government’s brief, in particular
`noting that, at the time of this call between the CI and Cruz, law enforcement did not know who “Max”
`was, nor did the CI and Cruz use the words “fentanyl” or “drugs” during the call. (Doc. 78 at 5). Whether
`law enforcement knew to expect Lamarche, specifically, in the parking lot (as opposed to any other
`individual who was not Cruz) does not aid the Court’s assessment of probable cause, when considering
`the facts known to law enforcement in their totality.
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`9
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`the content of the recorded calls, what law enforcement observed during the surveillance of
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`Defendants, and upon the Audi’s arrival in the CVS parking lot. Law enforcement further had
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`probable cause to believe that the brown paper bag “on the floor in front of the passenger seat
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`under the glove compartment dashboard area” (Lamarche Decl. ¶ 4)—an obvious location to
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`search—contained those pills. California v. Acevedo, 500 U.S. 565, 580 (1991) (“The police may
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`search an automobile and the containers within it where they have probable cause to believe
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`contraband or evidence is contained.”).
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`Accordingly, under these circumstances, probable cause existed for law enforcement to
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`arrest Lamarche and search the Audi.5 Lamarche’s motion to suppress the physical evidence
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`seized from the Audi at the time of his arrest is, therefore, denied.
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`The Court’s determination as to the existence of probable cause is dispositive of
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`Lamarche’s associated argument that his post-arrest, Mirandized statements should be
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`suppressed. He contends that the exclusionary rule applies to his post-arrest statements as the
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`fruits of an illegal arrest. Murray v. United States, 487 U.S. 533, 536-37 (1988) (“The
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`exclusionary rule . . . prohibits the introduction of derivative evidence, both tangible and
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`testimonial, that is the product of the primary evidence, or that is otherwise acquired as an
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`indirect result of the unlawful search . . . .”). Because, however, the pills were discovered
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`through a lawful search and arrest, the exclusionary rule has no application to these facts. United
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`States v. Daniels, No. 21-CR-0081, 2021 WL 4690837, at *11 (E.D.N.Y. Oct. 7, 2021)
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`(declining to suppress post-arrest statements as “fruits from the poisonous tree” where the
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`contraband at issue were discovered through a lawful pat down of the defendant based on the
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`existence of probable cause to arrest him). Lamarche does not dispute that he was provided
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`5 Because the Court finds that the automobile exception applies, it need not and does not conduct a
`separate analysis under the plain view exception, a separate and independent basis proffered by the
`Government.
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`Miranda warnings after his arrest and signed a Miranda waiver form. He knowingly and
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`voluntarily made statements to law enforcement, including that he was told by another individual
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`to deliver the pills from a location in the Bronx, New York, to an address in Yonkers, New York.
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`Accordingly, the suppression of Lamarche’s post-arrest statements is not warranted under the
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`fruit of the poisionous tree doctrine.
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`III. Motion to Sever
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`Lamarche asks the Court to sever his case from that of his co-defendant Cruz on the
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`ground that he will suffer substantial prejudice from a joint trial. He argues that “[s]everance is
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`warranted for Mr. Lamarche because the drastically greater amount of evidence against Cruz will
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`result in substantial prejudice against Mr. Lamarche and will prevent the jury from making a
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`reliable judgment about Mr. Lamarche’s innocence or guilt.” (Doc. 71 at 13-14).
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`“If the joinder of . . . defendants in an indictment . . . appears to prejudice a defendant or
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`the government, the court may order separate trials . . . or provide any other relief that justice
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`requires.” Fed. R. Crim. P. 14(a). A defendant who “seeks separate trials carries a heavy burden
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`of showing that joinder will result in substantial prejudice.” United States v. Amato, 15 F.3d 230,
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`237 (2d Cir. 1994). “With conspiracy charges, ‘[t]he established rule is that a non-frivolous
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`conspiracy charge is sufficient to support joinder.’” United States v. Lemay, No. 21-CR-00573,
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`2022 WL 17363595, at *2 (S.D.N.Y. Dec. 1, 2022) (quoting United States v. Nerlinger, 862 F.2d
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`967, 973 (2d Cir. 1988)). It is beyond cavil that “[w]here a defendant is a member of a
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`conspiracy, all the evidence admitted to prove that conspiracy, even evidence relating to acts
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`committed by co-defendants, is admissible against the defendant.” United States v. Salameh, 152
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`F.3d 88, 111 (2d Cir. 1998).
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`Even if, as Lamarche argues, there is a greater amount of evidence against Cruz,
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`“[d]iffering levels of culpability and proof are inevitable in any multi-defendant trial and,
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`standing alone, are insufficient grounds for separate trials.” United States v. Spinelli, 352 F.3d
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`48, 55 (2d Cir. 2003). Moreover, “even the fact that evidence may be admissible against one
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`defendant but not another does not necessarily require a severance.” Id. (internal quotation marks
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`omitted). Where, as here, each defendant is alleged to be a member of a single conspiracy,
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`“virtually all of the evidence admitted at a joint trial would be admissible against each separate
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`defendant in a separate trial as acts of his co-conspirators in furtherance of the charged
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`conspiracy.” United States v. Jimenez, 824 F. Supp. 351, 368 (S.D.N.Y. 1993). Because Federal
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`Rule of Criminal Procedure 14 explicitly permits a district court to “provide any other relief that
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`justice requires,” the rule “does not require severance even if prejudice is shown; rather, it leaves
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`the tailoring of the relief to be granted, if any, to the district court’s sound discretion.” Zafiro v.
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`United States, 506 U.S. 534, 538-39 (1993). Even in the rare circumstances where “the risk of
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`prejudice is high,” severance is not required, as “less drastic measures, such as limiting
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`instructions, often will suffice to cure any risk of prejudice.” Id. at 539.
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`Lamarche has not shown that the fact there may be more evidence against Cruz than can
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`be offered against Lamarche will result in substantial prejudice warranting a separate trial. The
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`motion to sever is, accordingly, denied.
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`Case 7:21-cr-00502-PMH Document 90 Filed 12/12/22 Page 13 of 13
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`CONCLUSION
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`For the foregoing reasons, Defendants’ joint motion to dismiss the indictment is DENIED
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`and Lamarche’s omnibus motion to suppress evidence and statements and to sever is DENIED.
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`As noted during the November 9, 2022 conference, time has been excluded under the
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`Speedy Trial Act through May 30, 2023.
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`The Court will separately docket a Pretrial Scheduling Order.
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`Dated: White Plains, New York
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`December 12, 2022
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`SO ORDERED.
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`____________________________
`Philip M. Halpern
`United States District Judge
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`13
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