Opinion
02 Cr. 756 (LMM).
November 10, 2005
MEMORANDUM AND ORDER
1.
Defendant Cleon Rowe moves for a severance of his trial from that of defendant Frederick Jackson. The principal ground for the motion is that defendant Rowe "wishes to call Mr. Frederick Jackson, his co-defendant, as a witness in his behalf at the forthcoming trial," arguing that "[t]he proposed testimony of Mr. Jackson would be to fully exonerate Mr. Rowe of any culpability of the criminal conduct charged herein." (Siegel Letter Br., Nov. 6, 2005, at 1.) He further argues that it would be "improper" and "impossible" to call defendant Jackson as a witness in a joint trial because of Jackson's Fifth Amendment right not to incriminate himself. (Id.) Defendant Rowe also argues that he is subject to prejudicial spillover in that defendant Jackson is charged, in two counts, with causing a murder, the evidence as to which the jury will not be able to separate from that as to the charges against defendant Rowe, who is not charged with the murder with which Jackson is charged.
In 2003, the Court had granted defendant Rowe a severance of his trial from that of Jackson and defendant Rashem Jordan, on the basis, however, that, at that time, Jackson and Jordan were subject to a possible death penalty. See United States v. Jackson, No. 02 Cr. 756, 2003 WL 21787320, at *1-*2 (S.D.N.Y. Aug. 4, 2003). Since then, (i) the government has determined not to seek the death penalty in the case of defendant Jackson (or Jordan), and (ii) defendant Rowe has withdrawn his guilty plea, entered on the first day of his trial in January of 2004. Subsequent to notification that the government would not seek the death penalty in the case of defendant Jackson and defendant Rowe's withdrawal of his guilty plea, the Court, on March 30, 2005, consolidated the trials of defendants Jackson and Rowe.
2.
"If the joinder of . . . defendants in an indictment . . . appears to prejudice a defendant . . ., 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). "[T]he decision whether to sever under Rule 14 is confided to the sound discretion of the trial court." United States v. Feyrer, 333 F.3d 110, 114 (2d Cir. 2003) (citations omitted).
"For reasons of economy, convenience and avoidance of delay, there is a preference in the federal system for providing defendants who are indicted together with joint trials." Id. (citing Zafiro v. United States, 506 U.S. 534, 537 (1993)) (other citation omitted).
Zafiro makes it clear that "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." 506 U.S. at 539. Zafiro also recognizes that "a defendant might suffer prejudice if essential exculpatory evidence that would be available to a defendant tried alone were unavailable in a joint trial." Id. (citing Tifford v. Wainright, 588 F.2d 954 (5th Cir. 1979) (per curiam)).
That does not mean, of course, that suggesting that, at a severed trial, a defendant will have the benefit of the exculpatory testimony of a co-defendant, will, of itself, result in severance. Rather, where (as here), a defendant seeks a severance on the ground that that will enable him to obtain such otherwise unavailable exculpatory testimony, there are a number of factors to be considered. Among such non-exclusive factors, the Second Circuit has pointed out "(1) the sufficiency of the showing that the co-defendant would testify at a severed trial and waive his Fifth Amendment privilege; (2) the degree to which the exculpatory testimony would be cumulative; (3) the counter arguments of judicial economy; and (4) the likelihood that the testimony would be subject to substantial, damaging, impeachment." United States v. Finkelstein, 526 F.2d 517, 523-24 (2d Cir. 1975) (citation omitted).
On a motion for a severance on the ground here advanced, the movant must also detail the allegedly exculpatory testimony — the movant's "burden of demonstrating prejudice is not satisfied by wholly conclusory statements merely labelling the proffered testimony as exculpatory." United States v. Bari, 750 F.2d 1169, 1177-78 (2d Cir. 1984) (citation omitted).
Defendant Jackson has submitted an affidavit in support of defendant Rowe's motion for a severance, in which he states that:
The affidavit is made in the name Frederick Rowe. Mr. Jackson is also known by that name.
If called as a witness by my brother Cleon Rowe in a separate trial where I am not a defendant on trial, I would state that my brother Cleon Rowe had absolutely no connection with any drug operation or criminal activity. I am willing to testify on behalf of my brother Cleon Rowe.
(Frederick Rowe [Jackson] Aff., ¶ 2.) He adds that "[m]y testimony would completely exonerate my brother Cleon Rowe of all the accusations contained in the subject indictment." (Id. ¶ 3.)
The motion does not otherwise detail the testimony defendant Jackson would give.
For several reasons, the requested severance is not warranted.
Defendant Jackson's affidavit is no guarantee that, in fact, he will, at a separate trial, actually waive his Fifth Amendment privilege against incrimination and testify on behalf of defendant Rowe. To accept defendant Jackson's stated present intention to do so may very well be "unrealistic" in the circumstances. See United States v. Wilson, 11 F.3d 346, 354 (2d Cir. 1993). If defendant Rowe were to be tried separately before defendant Jackson, there would obviously be very good reason for defendant Jackson to assert his privilege; and if defendant Rowe were to be tried after defendant Jackson, defendant Jackson — whether acquitted or convicted — would still have strong reasons to assert the privilege. (See Gov't Letter Br., Nov. 10, 2005, at 2, pointing to interest in preservation of right to challenge a conviction on appeal or collaterally, or concern with exposure based on uncharged conduct.)
Judicial economy is also implicated. On March 30, 2005, the trial was scheduled to commence on October 31, 2005. Shortly before the date, the trial was adjourned for two weeks, to November 14, 2005. The trial is expected to last from four to six weeks. On November 3, 2005 defendant Rowe alerted the Court that he would be moving for a severance, and the motion was made on November 6, 2005.
In the Court's view, this is the least significant of the relevant factors. Here, alone, it would not preclude a severance.
No explanation has been advanced why the motion could not have been made earlier. In the present situation, a severance would require a further adjournment in order to allow the government to rearrange the order of its proof. A severance would, moreover, result in more trial time, since both defendants are charged in Count One, alleging their participation in a conspiracy to distribute narcotics over the period from about 1996 to about June of 2002, so that much testimony would have to be given twice.
Finally, it appears that the proposed testimony of defendant Jackson would very likely be subject to "substantial, damaging impeachment." Finkelstein, 526 F.2d at 524; see also Wilson, 11 F.3d at 354 ("[I]t is clear that substantially all of Hoyos' proffered testimony was subject to damaging impeachment in light of the evidence corroborating the case against Romero.").
3.
The Court is confident that spillover prejudice can be prevented by appropriate jury instruction. See Feyrer, 333 F.3d at 115.
* * *
In light of the uncertainty whether defendant Jackson would, when the time came to make a final decision, actually waive his Fifth Amendment rights and testify, and of the impeachment evidence his testimony would be faced with, and giving some weight to the lateness of the motion, defendant Rowe's motion for a severance is denied.
SO ORDERED.