case.’> The Defendants argue that mere consideration of Count 60 will raise
the inference of “once a thief, always a thief’ and will result in undue
prejudice against them.'*

(7) Rule 8(a) is designed, in part, to promote judicial economy and
efficiency; objectives which outweigh a defendant’s unsubstantiated claim
of prejudice.’ Under Rule 14, severance of jointly indicted offenses is
appropriate only when joinder will substantially prejudice the defendant."
“(Mere hypothetical prejudice” is not sufficient.'’ The defendant must
demonstrate the joinder of offenses is so manifestly prejudicial that it
outweighs the dominant concern of judicial economy and compels the

Court’s discretion to sever.'®

8 See id.

‘4 See id.

. See, e.g., Mayer v. State, 320 A.2d 713, 717 (Del. 1974).

'6 Skinner v. State, 575 A.2d 1108, 1118 (Del. 1990).

" Id. (citing Bates v. State, 386 A.2d 1139, 1142 (Del. 1978)).

“= See Howard, 704 A.2d at 280; State v. Rivera, 1995 WL 156059, at *3 (Del.
Super. Ct. March 3, 1995), aff'd, 1996 WL 191009 (Del. Apr. 2, 1996) (under Rule
14 analysis the question is “whether the joinder is so manifestly prejudicial that it

outweighs the dominant concern with judicial economy and compels the exercise of the
Court’s discretion to sever”) (internal quotations and citations omitted).

5.


prejudice. And the Defendants have failed to otherwise demonstrate substantial
prejudice arising from a joint trial of all indicted charges.
And so, IT IS HEREBY ORDERED that the Defendants’ Motion
Seeking Relief from Prejudicial Joinder is DENIED.
SO ORDERED this 23" day of November, 2016.

PPimaste 3

Paul R. Wallace, Judge

Original to Prothonotary

cc: Stacey Cohee, Deputy Attorney General
Joseph A. Hurley, Esquire

ae Skinner, 575 A.2d at 1108.

-8-


prejudice from the joinder.* Such decision lies within the Court’s sound
discretion.’

(5) Our supreme court has held that “where offenses are of the
same general character, involve a similar course of conduct and are alleged
to have occurred within a relatively brief span of time, it is proper to try the
offenses together.”"° Where offenses charged meet these standards,
severance has been denied, even if there is some potential for prejudice to
the defendant."

(6) Defendants suggest that there is an “obvious danger” that when
considering evidence of Count 60, the jury will infer some general criminal
intent and convict on the other indicted counts without considering the
evidence.” Further, Defendants argue that “the mere accusation raises
significant questions regarding honesty and integrity which are central

ingredients for the jury’s consideration” of the other pending charges in the

. Super. Ct. Crim. R. 14.

° See Lampkins vy. State, 465 A.2d 785, 793-94 (Del. 1985); Burton vy. State, 149
A.2d 337, 339 (Del. 1959) (Court’s prejudice review will not be reversed except for clear
abuse of discretion).

10 Younger v. State, 496 A.2d 546, 550 (Del. 1985).

" See Howard y. State, 704 A.2d 278, 281 (Del. 1996).

a See Defs.’ Mot. at § 2, State vy. Cipriano, et al., 1.D. Nos. 1602000442,
1601019449, 1601019421 (Del. Super. Ct. Oct. 31, 2016) (D.I. 14).

-4-


(8) The Delaware Supreme Court has recognized three forms of
prejudice to be evaluated in determining if severance is proper. These three
are set forth in Weist v. State as follows:

1) the jury may cumulate the evidence of the various crimes charged

and find guilt when, if considered separately, it would not so find;

2) the jury may use the evidence of one of the crimes to infer a

general criminal disposition of the defendant in order to find guilt of

the other crime or crimes; and 3) the defendant may be subject to

embarrassment or confusion in presenting different and separate

defenses to different charges.'”
A defendant is not entitled to severance merely because he might then stand a
better chance of being acquitted.” Joinder here is not required as there has been no
showing of substantial prejudice to any of the Defendants.

(9) The second Weist prejudice consideration”! involves an inquiry into
whether the jury may use evidence of one of the crimes to infer a general criminal
disposition on the part of the Defendants, thus leading to a conviction on additional
charges which would not otherwise be obtained. Defendants allude to such

prejudice here. But with no analysis, Defendants say only that there is an “obvious

danger” that the jury will conclude that Ross is “once a thief, always a thief’ and

"9 Weist v. State, 542 A.2d 1193, 1195 (Del. 1988).

cal See Howard, 704 A.2d at 281 (citing Bradley v. State, 559 A.2d 1234, 1239 (Del.
1989).

a The Defendants’ claims neither cite nor implicate the first or third forms of
prejudice defined in Weist. See Defs.’ Mot. at § 2. And so they need not, and are not,
addressed here.

-6-


IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)

v. ) LD. Nos. 1602000442

) 1601019449

JENNIFER MALDONADO, ) 1601019421
GRAHAM MOONEY, )
CHARLES ROSS, et al., )
)
Defendants. _)

Submitted: November 18, 2016
Decided: November 23, 2016

Upon Defendants Jennifer Maldonado, Graham Mooney, and Charles Ross’s
Motion Seeking Relief from Prejudicial Joinder,
DENIED.

This 23" day of November, 2016, upon consideration of Defendants
Jennifer Maldonado, Graham Mooney, and Charles Ross’s (collectively,
“Defendants”) Motion Seeking Relief from Prejudicial Joinder (D.I. 15), and
the record in this matter, it appears to the Court that:

(1) Defendants and a dozen others have been indicted by the Grand
Jury on multiple counts that include: (a) structuring to evade currency

transaction reporting requirements, under 11 Del. C. § 951(f); (b) conspiracy


that his spouse, Maldonado, and employee/friend, Mooney, are “birds of a
feather.””? These bare allegations hardly shoulder the substantial prejudice burden
Defendants’ bear to obtain severance here.”

(10) The crimes alleged against the indictees are “of the same or similar
character” and are allegedly “based on . . .two or more acts or transactions
connected together [and] constituting parts of a common scheme or plan.”
Further, presentation of this matter in separate trials will likely require multiple
identical appearances by the same witnesses and investigators, as well as multiple
presentations of identical evidence. “The jury should have no difficulty
compartmentalizing the evidence concerning each offense and reaching a separate
and distinct verdict based upon the evidence and the specific instructions the court

will give.” The Court can effectively instruct the jury that the evidence of each

offense or incident must be considered separately, thereby minimizing any risk of

2 Defs.’ Mot. at ] 2, State v. Cipriano, et al., 1.D. Nos. 1602000442, 1601019449,
1601019421 (Del. Super. Ct. Oct. 31, 2016) (D.I. 14).

3 Skinner y. State, 575 A.2d 1108, 1118 (Del. 1990)(must be shown that “there is a
reasonable probability that substantial prejudice may result from a joint trial” and “[t]he
defendant has the burden of demonstrating such prejudice”); Rivera, 1995 WL 156059, at
*3 (“The burden is on the defendant to make a strong showing of prejudice in order to
obtain relief under [] Rule [14].”).

2 Super. Ct. Crim. R. 8(a). See Indictment, State v. Cipriano, et al., 1.D. Nos.
1602000442, 1601019449, 1601019421 (Del. Super. Ct. Apr. 25, 2016) (D.L. 48).

> Rivera, 1995 WL 156059, at *3.


second degree, under 11 De/. C. § 512; (c) criminal impersonation, under
11 Del. C. § 907, and (d) theft, under 11 Del. C. § 841.'

(2) The charges all derive from alleged fund transfer structuring
that the State argues was designed by the Defendants to evade certain
Treasury and Revenue regulations. The State intends to prove at trial that
Charles Ross, a local restaurateur, led a scheme to increase his lottery
commission from sports book sales by purchasing his patrons’ winning
sports bet lottery tickets in order to encourage those patrons to re-visit his
restaurant. The State alleges Ross would then “[cash] said tickets at
Delaware Park Casino in a manner that evaded cash transaction reports
(CTR) in violation of 11 Del. C. § 951(f).”” The State contends the scheme
began in the Fall of 2014 and ended when the alleged victim of Indictment

Count 60 reported the behavior.’

' Indictment, State v. Cipriano, et al., 1.D. Nos. 1602000442, 1601019449,
1601019421 (Del. Super. Ct. Apr. 25, 2016) (D.I. 48).

2 State’s Resp. at J 3, State v. Cipriano, et al., 1.D. Nos. 1602000442, 1601019449,
1601019421 (Del. Super. Ct. Nov. 18, 2016) (D.I. 16).

3 Id. Count 60 of the Indictment reads: “Count 60: A Misdemeanor—THEFT, in
violation of Title 11 Section 841 of the Delaware Code of 1974, as amended. CHARLES
ROSS, on or about the 19" day of January 2016, in the County of New Castle, State of
Delaware, did with the intent to appropriate, take, obtain or exercise control over property
consisting of a football parlay ticket, belonging to Lance McCue, and valued at less than
$1,500.” Indictment, State v. Cipriano, et al., 1.D. No. 1601019421 (Del. Super. Ct. Apr.
25, 2016) (D.I. 48).

-2-


(3) Count 60 charges Charles Ross with theft of a winning sport
betting lottery ticket from one of his patrons when the patron sought to cash
it through or sell it to Ross.’ It’s alleged that Ross did so in concert with one
or more of his employees. > And the State expects that the alleged theft
victim will testify to facts not only of the theft, but how that activity tied into
Ross’s alleged structuring scheme and his use of his employees to carry it
out.’

(4) Superior Court Criminal Rule 8 provides that two or more
offenses may be charged in the same indictment if the offenses are of the
same or similar character or are based on two or more transactions
connected together or constituting parts of a common scheme or plan.”

Conversely, Superior Court Criminal Rule 14 allows the Court to sever

counts of an indictment if it appears that a defendant will suffer substantial

4 See Indictment, State v. Cipriano, et al., 1.D. No. 1601019421 (Del. Super. Ct.
Apr. 25, 2016) (D.I. 48); see also State’s Resp. at 5-6, State v. Cipriano, et al., I.D.
Nos. 1602000442, 1601019449, 1601019421 (Del. Super. Ct. Nov. 18, 2016) (D.L 16).

5 See State’s Resp. at § 5, State v. Cipriano, et al., 1D. Nos. 1602000442,
1601019449, 1601019421 (Del. Super. Ct. Nov. 18, 2016) (D.I. 16).

2 Id at] 6.

7 Super. Ct. Crim. R. 8(a).