Opinion
Case No: 8:11-CR-115-T-30MAP
11-26-2012
UNITED STATES OF AMERICA, v. TODD S. FARHA, et al., Defendants.
ORDER
THIS CAUSE came on for consideration upon Defendant Thaddeus Bereday's Motion for Severance or in the Alternative to Exclude Evidence of Alleged Co-Defendant Conduct (Dkt. #285), Defendant William L. Kale's Motion to Sever Trials (Dkt. #299), and the Government's Response (Dkt. #314). Upon consideration, the Court concludes that the motions should be denied without prejudice.
The parties agree that in the Eleventh Circuit a joint trial is preferred in conspiracy cases. Defendants carry a heavy burden of obtaining a separate trial. See Unite States v. Lopez, 649 F. 3d 1222 (11th Cir. 2011). Defendants argue they are not named in all counts of the Indictment and, in light of the Government's recent notice of multiple categories of intrinsic and Rule 404(b) evidence in which only some of the categories apply to them, the jury will be confused by the evidence. The spillover effect might support a severance of the trials.
Here, the Court is unable to determine whether the evidence offered by the Government against some Defendants will be "overwhelming" as compared to the two moving Defendants. The two moving Defendants are named in nine of the eleven counts of the Indictment. And, they are involved in several of the categories of intrinsic and 404(b) evidence intended to be offered by the Government. Therefore, at this time, it does not appear that a severance is necessary. But the Court is unable to make a definitive judgment on this issue until it has had the benefit of hearing the evidence.
The Defendants' motions are therefore denied without prejudice to being raised at the conclusion of the Government's direct.
It is therefore ORDERED AND ADJUDGED that:
1. Defendant Thaddeus Bereday's Motion for Severance or in the Alternative to Exclude Evidence of Alleged Co-Defendant Conduct (Dkt. #285) is DENIED without prejudice.
2. Defendant William L. Kale's Motion to Sever Trials (Dkt. #299) is DENIED without prejudice.
DONE and ORDERED in Tampa, Florida on November 26, 2012.
______________________
JAMESS. MOODY , JR.
UNITED STATES DISTRICT JUDGE
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