Opinion
Criminal Action 3:20CR24-10
07-16-2021
UNITED STATES OF AMERICA, Plaintiff, v. BRANDON EUGENE CORBIN, Defendant.
REPORT AND RECOMMENDATION TO DENY DEFENDANT'S MOTION [ECF NO. 421] TO SEVER
Robert W. Trumble, Judge.
I. INTRODUCTION
This matter comes before the Court on Defendant Corbin's Motion to Sever. ECF No. 421. The Court rules on this motion without a response from the Government and without a hearing.
Defendant Corbin is one of twelve defendants in a forty-four (44) count Indictment, plus forfeiture allegation, relating to the distribution of heroin, fentanyl, and cocaine base in or near Jefferson and Berkeley Counties in the Northern District of West Virginia and elsewhere. ECF No. 1. Defendant is named in Count One (1) of the Indictment, which charges eleven of the twelve defendants with conspiracy to possess with intent to distribute and to distribute heroin, fentanyl, and cocaine base from January 1, 2019 to September 20, 2019. Id. Count Thirty-Six (36) charges Defendant with the unlawful use of communication facility on September 24, 2019. Id. Count Thirty-Eight (38) charges Defendant and co-defendant, Dallas Marie Harris, with aiding and abetting possession with intent to distribute heroin and fentanyl on September 24, 2019. Id.
II. DEFENDANT'S CONTENTIONS
Defendant argues that severance is warranted because he is not charged in any RICO schemes like the two remaining co-defendants. ECF No. 421. In addition, he is not charged with a large quantity drug sale. Id. Further Defendant claims that his limited involvement in the charged offense pales in comparison to that of Co-Defendant Lorenzo-Rivera and Co-Defendant Lopez. Id. As his alleged criminal conduct is limited, severing him will result in a shorter trial for Defendant Corbin and will not expose him to the prejudicial carry-over effect of the RICO charges and allegations of larger drug sales against the two remaining co-defendants. Id. Defendant further asserts that if two separate trials are held, there may be some evidentiary overlap but not so much as to make it burdensome to the Government while at the same time, preventing prejudice to Defendant Corbin. Id.
III. LEGAL ANALYSIS
Rule 8(a) of the Federal Rules of Criminal Procedure allows for separate counts with multiple offenses to be joined when 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(b). Similarly, Rule 8(b) of the Federal Rules of Criminal Procedure permits multiple defendants to be charged in one indictment or information “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(a). “Because of the prospect of duplicating witness testimony, impaneling additional jurors or wasting limited judicial resources, joinder is the rule rather than the exception.” United States v. Whyte, 460 Fed.Appx. 236, 238 (4th Cir. 2012) (unpublished opinion) (citing United States v. Hawkins, 589 F.3d 694, 700 (4th Cir. 2009)).
The United States Supreme Court and the Fourth Circuit have both stated a preference for joinder of defendants named in the same indictment. See Zafiro v. United States, 506 U.S. 534, 537 (1993) (stating that “[t]here is a preference in the federal system for joint trials of defendants who are indicted together.”); United States v. Brugman, 655 F.2d 540, 542 (4th Cir. 1981) (explaining that “[b]arring special circumstances, individuals indicted together should be tried together.”) (internal citations omitted). The Fourth Circuit found this presumption that defendants indicted together be tried together “is especially strong in conspiracy cases.” United States v. Harris, 498 F.3d 278, 291 (4th Cir. 2007). Such a presumption also applies when an indictment charges a crime involving a principal and aider and abettor. See United States v. Spitler, 800 F.2d 1267, 1271 (4th Cir. 1986) (citing United States v. Kahn, 381 F.2d 824, 838 (7th Cir. 1967)).
However, pursuant to Rule 14(a) of the Federal Rules of Criminal Procedure, if joinder “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.” Fed. R. Crim. P. 14(a). The party seeking severance bears the burden of demonstrating prejudice. See United States v. Branch, 537 F.3d 328, 341 (4th Cir. 2008) (citing United States v. Goldman, 750 F.2d 1221, 1225 (4th Cir. 1984)). Showing prejudice is a heavy burden for the defendant:
[W]hen defendants properly have been joined under Rule 8(b), a district court should grant a severance 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.Zafiro, 506 U.S. at 539. The defendant moving for severance “must establish that actual prejudice would result from a joint trial.and not merely that ‘a separate trial would offer a better chance of acquittal.'” United States v. Reavis, 48 F.3d 763, 767 (4th Cir. 1995) (quoting United States v. Brooks, 957 F.2d 1138, 1145 (4th Cir. 1992); United States v. Spitler, 800 F.2d 1267, 1271 (4th Cir. 1986)).
In the present case, Defendant failed to establish that “actual prejudice” would result from a joint trial. While Defendant argues his involvement was only minor, Count One (1) of the Indictment names Defendant as a co-conspirator along with the other ten (10) defendants. The charges throughout the Indictment, including the charges against Defendant, specifically relate to the distribution of heroin, fentanyl and cocaine base in the Northern District of West Virginia. The Grand Jury found that such transactions were part of a single conspiracy. As the aforementioned case law indicates, defendants indicted together, particularly for conspiracy and aiding and abetting charges, should be tried together.
Moreover, Defendant points to no specific trial right that would be compromised if the case proceeds as a joint trial. Defendant simply asserts the three remaining defendants have different degrees of culpability. ECF No. 421 at 2. This speculation is insufficient to satisfy Defendant's high burden. See Najjar, 300 F.3d at 473. Therefore, Defendant has not met his burden of demonstrating prejudicial joinder in order to justify severance under Rule 14(a).
IV. RECOMMENDATION
Defendant failed to make the requisite showing of actual prejudice as required for severance pursuant to Rule 14(a) of the Federal Rules of Criminal Procedure. For the foregoing reasons, the undersigned recommends, Defendant's Motion [ECF No. 421] to Sever be DENIED .
The Defendant shall have fourteen days from the date of filing this Report and Recommendation within which to file with the Clerk of this Court, specific written objections, identifying the portions of the Report and Recommendation to which objection is made, and the basis of such objection. A copy of such objections should also be submitted to Chief United States District Judge Gina M. Groh. Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless accompanied by a motion for leave to exceed the page limitations, consistent with LR PL P 12.
Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
The Court directs the Clerk of the Court to provide a copy of this Report and Recommendation to all counsel of record, as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia.