Opinion
Criminal Action No. 04-355 (CKK).
March 25, 2005
MEMORANDUM OPINION
Currently before the Court are (1) Defendants' Joint Motion and Incorporated Memorandum of Points and Authorities for Relief From Improper Joinder and For Severance of Offenses and/or Defendants; (2) Defendant Lionel Stoddard's Motion to Sever Counts; (3) Defendant Lionel Stoddard's Motion to Sever Defendants; (4) Defendant Bryan Burwell's Motion to Sever Counts and Try the Co-Defendants Separately; (5) Defendant Carlos Aguiar's Motion to Sever Defendants and/or Sever Counts; (6) Defendant Perkins' Motion for Relief from Prejudicial Joinder of Defendants; (7) Defendant Malvin Palmer's Supplemental Motion to Sever Defendants and Counts and Points and Authorities in Support Thereof; and (8) Defendant Malvin Palmer's Second Supplemental Motion to Sever Defendants and Counts and Points and Authorities in Support Thereof. The Government has filed both an Omnibus Response in Opposition to the Defendants' Motions ("Gov'ts Omnibus Response") and an Omnibus Reply to the Defendants' Second Round of Motions ("Gov'ts Omnibus Reply") that answer, inter alia, these specific motions made by the above-listed defendants. After reviewing the parties' briefing and the relevant caselaw, the Court shall deny without prejudice defendants' respective motions to sever defendants and/or counts.
I: BACKGROUND
On November 9, 2004, the Grand Jury in the above-captioned case returned a twenty-one count Superseding Indictment against the six remaining defendants in this case — Miquel Morrow, Lionel Stoddard, Carlos Aguiar, Bryan Burwell, Aaron Perkins, and Malvin Palmer (collectively, "Defendants"). Count I of the Indictment charges all six Defendants with a conspiracy to participate in a Racketeer Influenced Corrupt Organization ("RICO"), in violation of 18 U.S.C. § 1962(d), based upon alleged racketeering acts involving armed robberies of four banks in the District of Columbia (Acts 1-4) and two banks in the District of Maryland (Acts 5-6), as well as three acts involving murder (Acts 7-9). Count II charges all six Defendants with a conspiracy to commit offenses against the United States. Substantive charges involving armed bank robbery (Counts III, VIII, XII, and XVII), using or carrying a firearm during a crime of violence (Counts IV, IX, XIII, XVIII), unlawful possession of a firearm by a felon (Counts VVII, X-XI, XIV-XVI, XIX), and assault with intent to kill (Counts XX-XXI), are charged against the specific defendants named in those counts. The armed robberies were allegedly accomplished while the Defendants brandished weapons and wore body armor, hoods, masks, bandanas, and heavy clothing to avoid identification. The assaults also involved the use of firearms.
A substantially similar superseding indictment was returned on February 15, 2005, that deleted two of the previous counts, changing the numbering scheme. However, many of the motions concerning the validity of the Indictment were filed prior to this February date, and both the Government and the Defendants refer to the numbering scheme employed by the November 9, 2004 Superseding Indictment in their filings. As such, for purposes of clarity, the Court will refer to the numbering scheme used in the November 9, 2004 Indictment in this Opinion.
II: DISCUSSION
A. BackgroundThe Court shall deal with the above-mentioned motions to sever counts and/or defendants as a unit, as each respective motion essentially requests the same relief from the Court. In summary form, each defendant focuses on these arguments:
Because many of these defendants have filed motions to join the motions filed by co-defendants, which the Court has granted, the arguments made by one defendant in favor of severing the counts or defendants can be said to apply to all defendants. However, as the Court warned previously, the outcome of motions to sever counts or defendants is often dependent largely on the relevant facts. When a defendant simply joins another defendant's legal motion without relating the law to his individualized facts, the Court may lack the factual predicate necessary to make a determination of the kind of "undue prejudice" that warrants severance of counts or defendants. In this set of filings, in particular, Defendants focused mainly on generalities and broad legal assertions rather than connecting their arguments to their specific individualized facts.
• Joint Defense Motion: In Defendants' Joint Motion, Defendants begin the motion by taking issue with the joinder of all counts in one trial. Defendants assert that "[t]he government in this case cannot allege sufficient relationship between all the bank robberies to support the joinder of activities in these distinct and geographically separated events." Joint Def. Mot. at 4. According to Defendants, "[b]eyond a slight overlap in membership, the government has offered no nexus between several bank robberies and the AWIKs [Assault With Intent to Kill counts]." Id. at 5. Because "[t]here is neither a hub nor a rim that connects the spokes" of the Government's alleged conspiracy, Defendants suggest that they will be prejudiced individually by the inclusion of all six events in one trial, as the guilt of one defendant may be transferred to another. Id. at 5 (citing cases).
In addition to moving to sever the counts in the Superseding Indictment, Defendants argue that the Court must exercise its powers under Federal Rule of Criminal Procedure 14 to sever the Defendants in order to prevent a "miscarriage" of justice. Id. at 6. Specifically, Defendants note that four central factors mandate severance: (1) the significant disparity in the quantity of the evidence between the Defendants; (2) the "spillover" prejudice that will result when certain evidence, such as the Assault With Intent to Kill evidence, is included in a trial when such evidence might not be admissible in a separate trial; (3) the fact that an individual defendant's defense might prove incompatible with the defense proffered by his co-defendants because he "will raise issues which will be embarrassing to them to support his innocence of the charges against him"; and (4) the awkwardness of a trial with "six defendants and six separate events" will prove time consuming and contrary to judicial economy. Id. at 7-9.
• Defendant Stoddard: Defendant Stoddard, in his Motion to Sever Counts, focuses most of his time on Count XX, the count charging him with Assault With Intent to Kill Ed Arrington on April 23, 2004. Defendant Stoddard contends the allegations contained in this count reflect a different transaction with no temporal continuity connecting it to the allegations in Counts I and II. Def. Stoddard's Mot. to Sever Counts at 2-3. Given this distinction, Defendant Stoddard asserts that severance of Count XX is warranted because "[i]n the present case, the spillover effect and risk of jury confusion resulting from the proof of one crime being used to corroborate the commission of another, is such that the jury would be unable to make an individualized guilt determination as between Count Twenty and the remaining counts." Id. at 3-4.
In his Motion to Sever Defendants, Defendant Stoddard focuses on the fact that he is only charged with six of the twenty-one counts in the Superseding Indictment, and only ten of the forty overt acts alleged in Counts I and II. Def. Stoddard's Mot. to Sever Defs. at 2. Moreover, he suggests that the Government's evidence, including the Rule 404(b) evidence alleged in the Government's submission, will be far more damaging to his co-defendants than him. Id. at 2-3. Given these factors, Defendant Stoddard concludes that he must be severed from his co-defendants to prevent "guilt by association." Id. at 3.
• Defendant Burwell: Defendant Burwell argues that the Court must sever the counts due to the fact that the substantial amount of evidence in this case makes it likely that juror confusion will result. Def. Burwell's Mot. at 3-4. Additionally, Defendant Burwell focuses on the likelihood that antagonistic defenses will be forwarded at trial, as "[i]t is believed that some of the conspirators will exaggerate the participation of others in the hopes of convincing the jury that they were unwittingly duped into participating in the alleged fraud [sic] scheme." Id. at 4. Conversely, Defendant Burwell maintains that "several of the co-defendants would testify on behalf of the other if their trials were severed and they were not facing the prospect of prosecutorial reprisal." Id.
However, Defendant Burwell spends the majority of his motion claiming that the Court must sever his trial from that of his co-defendants. Defendant Burwell begins by noting that of the "nineteen substantive counts," i.e., those excluding the RICO conspiracy and the Section 371 conspiracy, he is only mentioned in two counts — Counts XII and XIII. Id. at 1. In sum, he contends that severance of his trial is required because: (1) he will likely be denied exculpatory evidence from his co-defendants absent a severance due to Fifth Amendment concerns; (2) "the vast majority of the evidence is against MIGUEL MORROW and LIONEL STODDARD," creating the risk that he will be found guilty by association; and (3) absent a severance, it may be impossible to avoid potential Bruton problems regarding statements made by co-defendants. Id. at 2-3.
• Defendant Aguiar: Defendant Aguiar's motion echoes many of the same arguments propounded by his co-defendants. Defendant Aguiar centers his argument around three main themes: (1) because he is charged in only eight of the twenty-one counts of the Superseding Indictment, he faces a danger from the "spillover effect" where jurors will transfer the possible guilt of his co-defendants to him; (2) the Government's evidence regarding the three racketeering acts that involve Assault With Intent to Kill, which include an assault against a police officer, will be severely prejudicial; and (3) the Defendants "will undoubtedly have different and inconsistent defenses" in this case as to many of the counts. Def. Aguiar's Mot. at 2-3.
• Defendant Perkins: Defendant Perkins' motion is quite similar to Defendant Aguiar's Motion, and he asserts three central arguments in favor of severance of his trial from that of his co-defendants: (1) the evidence against his co-defendants, especially as to the Assault With Intent to Kill charges, is far more damaging to his co-defendants than him, raising the specter of wrongful "guilt by association"; (2) the evidence against him in general is de minimus, as he is linked to the conspiracy only through the testimony of a cooperating co-conspirator who is "unreliable" and the "mere fact that a bag of guns found left by that co-conspirator was found in his apartment"; and (3) the RICO predicate act that alleges that some co-defendants attempted to kill a police officer will lead to extremely prejudicial "trying to kill a cop spill-over." Def. Perkins' Mot. at 1-4.
• Defendant Palmer: Defendant Palmer offers perhaps the most in-depth motion. According to Defendant Palmer, severance of counts is warranted because of two types of undue prejudice: (1) Defendant Palmer suggests that Count VII and XI, the two counts charging him with Unlawful Possession of a Firearm by a Person Convicted of a Crime Punishable by a Term Exceeding One Year, must be severed because "proof of such crimes will necessarily bring out his prior conviction," and (2) Defendant Palmer contends that Counts XX and XXI, the Assault With Intent to Kill counts, must be severed because of potential juror confusion. Def. Palmer's Suppl. Mot. at 5-7. Defendant Palmer contends that he "is not charged with the two AWIKWA counts and there is no evidence that he threatened or committed any violent acts against Edwin Arrington"; therefore, such an inclusion could both confuse the jury and create the kind of unnecessary juror hostility to him that would lead to a wrongful conviction. Id. at 7.
Similarly, Defendant Palmer offers three justifications for his Motion to Sever Defendants: (1) disparity of the evidence; (2) inconsistent defenses; and (3) undue prejudice resulting from the Assault With Intent to Kill Counts. Id. at 2-5, 8-9; Def. Palmer's Second Suppl. Mot. at 12-16. First, Defendant Palmer asserts that he is alleged to have participated in only two of the nine racketeering acts in the Indictment, and only two of the alleged armed robberies; as such, he maintains that the evidence against him is both " de minimus" and "drastically disparate" from that against his co-defendants. Id. at 2-4. Second, he contends that his defense is "mutually antagonistic" with that of his co-defendants, as he is likely to raise a defense of alibi. Id. at 8-9. Finally, Defendant Palmer suggests that the presence of both the Assault With Intent to Kill counts and the other counts against his co-defendants will lead to the danger that the jury will transfer the guilt of his co-defendants to him and lead to a wrongful conviction. Id. at 7-8.
According to Defendant Palmer, the root of these problems lies in the fact that the "Government has combined multiple unrelated conspiracies as if they were one big conspiracy." Def. Palmer's Second Suppl. Mot. at 12. Defendant Palmer argues that rather than one large conspiracy, the Court should view the Government's case against Defendants as really constituting at least seven separate conspiracies. Id. at 14-15. Defendant Palmer contends that "[t]he facts of this case, as presented by the Government in discovery, clearly allow This Honorable Court to conclude in the light most favorable to the Government that the allegations show that there are multiple conspiracies, with some common characteristics and a varying cast of supporting characters who do not know each other, and may not have met each other until their incarceration." Id. at 13.B. Analysis
The Court shall begin by analyzing the Defendants' motions to sever their joint trial under Federal Rule of Criminal Procedure 14, and then shall examine Defendants' motions to sever certain counts under Rules 8 and 14 should a joint trial occur.
1. Severance of Trials
Defendants Morrow, Stoddard, Burwell, Aguiar, Perkins, and Palmer each move to be severed from their co-defendants under Federal Rule of Criminal Procedure 14. In general, it is preferred for Defendants who are named in the same indictment to be tried jointly. See Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993); United States v. White, 116 F.3d 903, 916 (D.C. Cir. 1997) ("[t]he Supreme Court has found a general preference for joint trials in the federal system, based on the interests of efficiency and a reduced risk of inconsistent verdicts") (citation omitted); United States v. Gibbs, 904 F.2d 52, 56 (D.C. Cir. 1990) ("This court, however, has repeatedly declared that joint trials may be preferred, given the heavy and increasing criminal load in our courts.") (citing United States v. Manner, 887 F.2d 317, 324 (D.C. Cir. 1989)). Joint trials are preferred for a variety of reasons, including judicial efficiency and consistent verdicts, as the Supreme Court explained in Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987):
Underlying the Commonwealth's interest in a joint trial is a related interest in promoting the reliability and consistency of the judicial process, an interest that may well benefit the noncapital defendant as well. In joint trials, the jury obtains a more complete view of all the acts underlying the charges than would be possible in separate trials. From such a prospective, it may be able to arrive more reliably at its conclusions regarding the guilt or innocence of a particular defendant and to assign fairly the respective responsibilities of each defendant in sentencing.Id. at 418, 107 S.Ct. 2906.
The preference for a joint trial is even stronger in this Circuit in cases involving multiple defendants faced with a conspiracy charge: "Joint trials are favored in RICO cases . . . `where . . . the respective charges require presentation of much the same evidence, testimony of the same witnesses, and involve two [or more] defendants who are charged, inter alia, with participating in the same illegal acts.'" United States v. Richardson, 167 F.3d 621, 624 (D.C. Cir. 1999) (quoting United States v. Ford, 870 F.2d 729, 731 (D.C. Cir. 1989) (Starr, J.)); see also White, 116 F.3d at 916 (RICO case). "`The preference for a joint trial of multiple defendants in conspiracy cases reflects the sound policy of joinder where charges may be proven with substantially the same evidence.'" United States v. Edelin, 118 F. Supp. 2d 36, 40 (D.D.C. 2000) (quoting United States v. Aiken, 76 F. Supp. 2d 1346, 1352 (S.D.Fla. 1999)). "`Rarely, if ever, will it be improper for co-conspirators to be tried together.'" Id. (quoting United States v. Jackson, 64 F.3d 1213, 1217 (8th Cir. 1995) (citations omitted)).
Defendants here are charged with two separate conspiracies: (1) Count I of the Superseding Indictment alleges a Conspiracy to Participate in a Racketeer Influenced Corrupt Organization, in violation of 18 U.S.C. § 1962(d); and (2) Count II of the Superseding Indictment charges all six Defendants with a Conspiracy to Commit Offenses Against the United States, in violation of 18 U.S.C. § 371. As such, Count I charges the Defendants with participating in and constituting an "enterprise" whose purposes were,
among other things, the following: (i) committing robberies, including bank robberies, in the District of Columbia, the District of Maryland and elsewhere for the purpose of obtaining money and other things of value; (ii) protecting members of the enterprise; (iii) maintaining in safe places the weapons, body armor, and money of the enterprise; and (iv) retaliating against persons who interfered with the operation of the enterprise, including the actual and perceived thefts of weapons by non-members of the enterprise.
Superseding Indictment, Count I (RICO Conspiracy). In contrast, Count II charges that the Defendants conspired to commit offenses against the United States — i.e., by allegedly committing armed robberies in six different FDIC-insured banks. As such, the RICO conspiracy charges Defendants with maintaining an enterprise whose aims and actions stretched far beyond that of armed bank robberies alone; the RICO conspiracy count sweeps in other robberies ("committing robberies, including bank robberies. . . ."), acts to protect members of the conspiracy, actions taken to maintain the safe-keeping of the enterprise's weapons, body armor, and money, and retaliatory assaults committed by members of the enterprise in furtherance of its goals. In contrast, the Section 371 conspiracy focuses solely on the relevant armed bank robberies and related weapons' charges. These conspiracy charges provide "a common thread that ties all of the defendants and charges together." Edelin, 118 F. Supp. 2d at 39 (citing United States v. Morales, 868 F.2d 1562, 1568-69 (11th Cir. 1989) ("Joinder of multiple defendants is proper whenever there is a `common thread' between the actions charged against them."); United States v. Simon, 839 F.2d 1461, 1472 (11th Cir. 1988) ("[J]oinder of the defendants for trial is proper where the indictment charges multiple defendants with a single conspiracy and also charges some of the defendants with substantive counts arising out of the conspiracy.")).
However, Rule 14 of the Federal Rules of Criminal Procedure provides, in pertinent part, that:
[i]f it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder by the trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.
Fed.R.Crim.P. 14. Rule 14 provides the Court with "great latitude to sever defendants." United States v. Brown, 16 F.3d 423, 432 (D.C. Cir. 1994). "Rule 14 leaves the determination of risk of prejudice and any remedy that may be necessary to the sound discretion of the district courts." Zafiro, 506 U.S. at 541, 113 S.Ct. 933. "Ruling on a Rule 14 motion before trial requires the trial judge to anticipate the evidence and events of a future trial. The presumed benefits of a joint trial must be weighed against the potential for harm to the integrity of the trial process." United States v. McVeigh, 169 F.R.D. 362, 364 (D. Colo. 1996). The Supreme Court has held 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." Zafiro, 506 U.S. at 539, 113 S.Ct. 933. Since the "risk of prejudice will vary with the facts in each case," id., the decision to sever must be on a case-by-case basis.
Collectively, the Defendants make three arguments in favor of severance of their trials: (1) each defendant claims that the evidence against him is insubstantial in comparison to the others; (2) each defendant asserts, without a great deal of explanation, that the defenses in this case are "antagonistic"; and (3) Defendant Burwell contends that a joint trial would potentially rob him of testimony from his co-defendants that might otherwise be presented at his trial, therefore depriving him of potentially exculpatory evidence. Based upon the Superseding Indictment and the factual milieu of this case, the Court concludes that Defendants' arguments are currently without merit. At this stage of the proceeding, the Court finds that trying Defendants Morrow, Stoddard, Aguiar, Burwell, Perkins, and Palmer together would not present a "serious risk" to any specific trial right. Zafiro, 506 U.S. at 539, 113 S.Ct. 933. "[I]t is well settled that defendants are not entitled to a severance because they may have a better chance of acquittal in separate trials." Id. at 540. With the appropriate instructions, the jury will be able to consider the guilt or innocence of each co-defendant independently. As such, the Court does not find that any defendant will be unfairly implicated by "spillover" evidence relating to another defendant.
First, the Government has persuasively argued that, contrary to each defendants' claims, there is no significant disparity in the evidence against each defendant. Gov'ts Omnibus Response at 40-41. While it is true that Defendant Morrow is charged with nearly every offense in the Indictment, the Government effectively argues that the evidence will demonstrate his leadership role in an enterprise in which each defendant was a willing participant. Id. at 40. Moreover, "[s]everance is not appropriate merely because some co-conspirators were more active in the conspiracy, nor because some co-conspirators played a more central role." Edelin, 118 F. Supp. 2d at 43 (citing numerous cases). "More explicitly, severance has been held to be unnecessary in RICO prosecutions, even when all the defendants are not charged in every count of the indictment." Id. (citing cases). The Government notes that the evidence will show that in this series of incidents, the Defendants acted as a group where the participation of the members fluctuated because not every individual was always available — at times, Defendants Aguiar, Palmer, and Stoddard were apparently incarcerated or confined, which allegedly limited the extent of their participation. Id. While participation varied somewhat, every defendant is charged with having played a role in at least one, and usually several, of the violent robberies and assaults. Id. The Government persuasively maintains that evidence will show that each and every one of the Defendants was involved in multiple aspects of the enterprise. Id. at 41. As such, none of the Defendants can establish that manifest prejudice would result due to the fact that evidence against them would only be de minimus when compared to the evidence against his co-defendants. See United States v. Gambrill, 449 F.2d 1148, 1159 (D.C. Cir. 1971).
Furthermore, "[t]he key to determining whether there should be a severance of defendants or offenses is whether or not the jury would be able to compartmentalize the evidence as it applies to different defendants and offenses." Edelin, 118 F. Supp. 2d at 44. "In considering a severance motion, it has been said that the primary consideration is whether the jury could reasonably be expected to compartmentalize the evidence as it relates to the separate defendants." United States v. Wright-Barker, 784 F.2d 161, 175 (3d Cir. 1986); see also United States v. Alexander, 982 F.2d 262, 266 (8th Cir. 1992) (holding that "prejudice exists where the jury was unable to `compartmentalize the evidence"' as it related to the separate defendants). This case is not so complex that a jury could not compartmentalize the evidence presented to it. See Edelin, 118 F. Supp. 2d at 44 (finding that case was not so complex that a jury would be unable to compartmentalize the evidence when it faced six co-defendants charged with, inter alia, a conspiracy to distribute cocaine, conspiracy to distribute heroin, RICO conspiracy, first degree murder while armed, assault with intent to murder while armed, assault with a dangerous weapon, use of a firearm, possession of a firearm during a crime of violence, possession of cocaine with intent to distribute, distribution of cocaine, unlawful use of a communication facility, possession with intent to distribute heroin, and a variety of continuing enterprise murder counts). The Court intends to carefully instruct the jury to consider the evidence as to each defendant and the jury's responsibility in determining the guilt or innocence of each of the different defendants on the basis of that evidence. It is a widely accepted rule of law that juries follow their instructions. Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) ("the almost invariable assumption of the law that jurors follow their instructions"). In this situation, with the careful attention of this Court and the vigilance of counsel, the evidence will be compartmentalized.
Second, none of the Defendants has articulated a conflict in defenses sufficient to warrant severance of the Defendants. In general, such an assertion is difficult to establish. See Zafiro, 506 U.S. at 538, 113 S.Ct. 933 ("courts have reversed relatively few convictions for failure to grant severance on the grounds of mutually antagonistic or irreconcilable defenses"). Virtually the only defense identified in the filings before the Court is that of "alibi," which is not necessarily conflicting. See United States v. Hurt, 476 F.2d 1164, 1169 (D.C. Cir. 1973) (no severance was necessary when one defendant claimed alibi, but the other actually testified to joint participation, as both defenses were subject to cross-examination and there was ample evidence connecting defendant claiming alibi to the scene). Indeed, it is noteworthy that the mere possibility of irreconcilable defenses is not sufficient to require severance; rather, to demonstrate prejudicial joinder of defendants, conflicting defenses must be so irreconcilable that the jury would infer guilt from this fact alone. See Zafiro, 506 U.S. at 538-39; Gambrill, 449 F. 2d at 1159. Defendants simply have not articulated any theory of defense that suggests a danger that the defenses in this case will be so irreconcilable that a jury would infer guilt from that evidence alone. See Rhone v. United States, 365 F.2d 980, 981 (D.C. Cir. 1966). Moreover, as in Hurt, any evidence offered by one defendant that might conflict with the another's defense would certainly be subject to cross-examination.
Third, the claim made by Defendant Burwell that a joint trial will deprive him of the ability to present exculpatory evidence is insufficient to meet the test for severance on the grounds set forth in United States v. Ford, 870 F.2d 729 (D.C. Cir. 1989) (Starr, J.). In order to determine whether a defendant has established a prima facie case on the ground of the necessity of securing the testimony of a co-defendant, the defendant must prove: "(1) a bona fide need for the testimony; (2) the substance of the testimony; (3) the exculpatory nature and effect of the testimony; and (4) the likelihood that a co-defendant will testify if the cases are severed." Id. at 731. If the defendant fails to meet this threshold, severance is not required. Only if the defendant makes an adequate showing must the trial Court then: "(1) examine the significance of the testimony in relation to the defendant's theory of the case; (2) assess the extent of prejudice caused by the absence of the testimony; (3) consider the effects on judicial administration and economy; and (4) give weight to the timeliness of the motion." Id. A defendant must meet these stringent standards because, as the D.C. Circuit has noted, "Rule 14 [should not be read] as a mechanism for alleged co-conspirators to control the order in which they are tried." Id. (citations and internal quotation marks omitted).
Importantly, Defendant Burwell admittedly offers no factual predicate to support this argument at this time. Instead, Defendant Burwell's entire argument consists of this mention: "Discovery is still taking place and the Defendant is uncertain as to whether any co-defendant will offer exculpatory testimony at a separate trial, but is certain that all will assert their Fifth Amendment right to remain silent at a joint trial. Although speculative at this point, the Defendant raises the issue as to preserve his right to severance on this ground at a later time, upon submission of an affidavit from the prospective witness." Def. Burwell's Mot. at 2.
In short, Defendants in this case have failed to make the requisite showing at this point. Defendants' minimal justifications and explanations ensure that they (1) have not established a bona fide need for the testimony of their co-defendants, (2) have not described the substance of any expected testimony, (3) have not displayed that such testimony would be of an exculpatory nature, (4) and have not shown a likelihood that a co-defendant would testify if the cases are severed. For instance, Defendant Burwell, in his motion, (1) has failed to demonstrate a "reasonable probability" that favorable testimony will be forthcoming, and (2) has "failed to meet the burden of establishing with requisite specificity the exculpatory `nature and effect' of his co-defendant's testimony." Id. at 731-32; see also id. at 732 ("[t]his requirement demands more than conclusory statements by counsel"). Accordingly, the Court concludes that Defendants have failed to meet the Ford criteria to compel further consideration of severance.
In sum, based on the present record, the Court, using its discretion, concludes that Defendants will not suffer substantial, undue prejudice in a joint trial. Defendants have not established a disparity of the evidence, mutually antagonistic defenses, or the need and likelihood for a co-defendant to testify on their behalf. Rather, the Court believes, at this time, that limiting instructions and other less drastic measures may be employed to avoid any wrongful prejudice that may result during the trial. See Zafiro, 506 U.S. at 539, 113 S.Ct. 933. However, the Court recognizes that it has a continuing duty to monitor the appropriateness of joinder of counts and defendants. See Edelin, 118 F. Supp. 2d at 40; Schaffer v. United States, 362 U.S. 511, 516, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960). The Court further recognizes that it must continue to be vigilant for prejudice arising under Rule 14 of the Federal Rules of Criminal Procedure. Id.
2. Severance of Counts
i. Rule 8(b)
"As recognized by defendants, but not by the government, it has long been held in this circuit that `the propriety of joinder in cases where there are multiple defendants must be tested by Rule 8(b) alone and . . . Rule 8(a) has no application.' . . . Thus in this case of multiple defendants, even where the joinder of counts is at issue, Rule 8(b) applies." United States v. Singh, 973 F. Supp. 7, 18 (D.D.C. 1997) (quoting Brown, 16 F.3d at 427); United States v. Jackson, 562 F.2d 789, 794 (D.C. Cir. 1977); United States v. Halliman, 923 F.2d 873, 883 (D.C. Cir. 1991); see also United States v. Irizarry, 341 F.3d 273, 287 (3d Cir. 2003) ("[M]ost courts have held that Rule 8(b) applies exclusively to issues of joinder of multiple defendants and that Rule 8(a) applies only in cases involving a single defendant charged with multiple offenses."). Rule 8(b) of the Federal Rules of Criminal Procedure provides:
The indictment or information may charge 2 or more defendants 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. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in the same count.
Fed.R.Crim.P. 8(b) (emphasis added). A group of offenses forms a "series" only if the indictment alleges or the Government shows before trial that they are part of a "common scheme or plan" and that each defendant participated in some way in that common scheme or plan. United States v. Johnson, 46 F.3d 1166, 1172 (D.C. Cir. 1995). "[J]oinder is proper so long as the government presents evidence before trial that defendants' offenses arose out of the same scheme." Id. Unlike discretionary severance under Federal Rule of Criminal Procedure 14, the trial court must sever if there has been misjoinder under Federal Rule of Criminal Procedure 8(b). United States v. Cisneros, 26 F. Supp. 2d 13, 21 (D.D.C. 1998) (citing Fed.R.Crim.P. 8(b); United States v. Jackson, 562 F.2d 789, 797 n. 10 (D.C. Cir. 1991)). However, as the Court of Appeals for the D.C. Circuit has emphasized, "this circuit's law makes it difficult to prevail on a claim that there has been a misjoinder under Rule 8(b). . . ." United States v. Nicely, 922 F.2d 850, 853 (D.C. Cir. 1991).
Despite the relative difficulty in succeeding on a claim of misjoinder under Rule 8(b), Defendant Malvin Palmer, in his Second Supplemental Motion, and Defendants in their Joint Defense Motion claim that the Indictment actually covers multiple conspiracies — as many as seven potential conspiracies — and is therefore replete with wrongfully joined counts. See Joint Def. Mot. at 3-5; Def. Palmer's Second Suppl. Mot. at 7-16. Relying heavily on Nicely, the Defendants suggest that `"the mere fact that two conspiracies have overlapping memberships will not authorize a single indictment if the conspiracies cannot be tied together into one conspiracy, one common plan or scheme." Joint Def. Mot. at 5 (quoting Nicely, 922 F.2d at 853). Here, Defendants argue that "`[t]here is no substantial identity of acts or participants between these alleged conspiracies.'" Id. (quoting Nicely, 922 F.2d at 853). Because the alleged participants in the bank robberies and assaults vary wildly, Defendants contend that in this asserted "wheel conspiracy" "[t]here is neither a hub nor a rim that connects the spokes." Id. As Defendant Palmer stresses, the D.C. Circuit in Nicely found that "`[b]eyond the similarity in membership, the government points to nothing in common between the two conspiracies more specific than the common use of falsehoods to make money. . . . [t]elling lies, even elaborate ones, cannot be the hook for joining otherwise unrelated conspiracies.'" Def. Palmer's Second Suppl. Mot. at 8 (quoting Nicely, 922 F.2d at 854). According to Defendants' reasoning, this case is nearly identical to Nicely, as the Government is wrongfully attempting to join different defendants who often had limited or no connection and who allegedly committed different acts over a six-month period. Joint Def. Mot. at 5.
Importantly, the Court has already recognized that Defendants are properly charged in the Superseding Indictment in a RICO Conspiracy, and that the predicate acts and substantive offenses described in that Indictment were in furtherance of the conspiracy to commit robberies, including armed bank robberies, protect members of the enterprise, maintain in safe places the weapons, money, and body armor of the enterprise, and retaliate against persons who interfered with the operation of the enterprise. See United States v. Morrow, Crim. No. 04-355 (D.D.C. Mar. 16, 2005) (order denying various motions by Defendants to dismiss the RICO Indictment). With the RICO statute, prosecutors can cast a wide net to encompass a variety of criminal activities engaged in by the participants of the criminal enterprise — a net that frequently trumps traditional rules of joinder by expanding the ability of the prosecution to join defendants and maintain a wide range of counts even beyond what a traditional conspiracy analysis would allow.
All defendants being charged with such a RICO scheme is enough, by itself, to support a single trial. See United States v. Brown, 823 F.2d 591, 598 (D.C. Cir. 1987); United States v. Adeosun, 49 F. Supp. 2d 7, 14 (D.D.C. 1999). Essentially, a RICO conspiracy count functions as "the connective tissue" joining multiple incidents and multiple defendants. United States v. Richardson, 167 F.3d 621, 625 (D.C. Cir. 1999); see also United States v. Cooper, 91 F. Supp. 2d 60, 77 (D.D.C. 2000) ("Joinder of predicate offenses constituting a pattern of racketeering activity is generally considered proper."); United States v. Gorny, 732 F.2d 597, 603 (7th Cir. 1984) (same). As the Second Circuit described the relevant situation in United States v. Friedman, 854 F.2d 535 (2d Cir. 1988),
[t]he mere allegation of a conspiracy presumptively satisfies Rule 8(b), since the allegation implies that the defendants named have engaged in the same series of acts or transactions constituting an offense. The presence of a . . . RICO conspiracy count under 18 U.S.C. § 1962(d) further broadens the government's power to charge multiple defendants together. . . . In short, by loosening the statutory requirements for what constitutes joint criminal activity, Congress limited the force of Rule 8(b) in such situations.Id. at 561 (quoting United States v. Castellano, 610 F. Supp. 1359, 1396 (S.D.N.Y. 1985)).
The Third Circuit, in United States v. Eufrasio, 935 F.2d 553 (3d Cir. 1991), emphasized the power the RICO statute provides to prosecutors to join the kinds of defendants and counts that are present in this case:
Rule 8(b) provides substantial leeway to prosecutors who would join racketeering defendants in a single trial. The rule permits joinder of defendants charged with participating in the same racketeering enterprise or conspiracy, even when different defendants are charged with different acts, so long as indictments indicate all the acts charged against each joined defendant (even separately charged substantive counts) are charged as racketeering predicates or as acts undertaken in furtherance of, or in association with a commonly charged RICO enterprise or conspiracy. Joinder of a conspiracy count and substantive counts arising out of the conspiracy is permitted, since the claim of conspiracy provides a common link, and demonstrates the existence of a common scheme or plan.Id. at 567 (internal citations and quotation marks omitted) (emphasis in original).
Here, all defendants are properly charged with a RICO conspiracy, despite their often-different acts and different levels of overlap. See United States v. Morrow, Crim. No. 04-355 (D.D.C. Mar. 16, 2005) (order denying various motions by Defendants to dismiss the RICO Indictment). The substantive offenses not chargeable as RICO predicates — namely, the counts alleging unlawful possession of a firearm by a felon and using and carrying a firearm during a crime of violence — are appropriately joined because they bear a "logical relationship" to the RICO offenses and were "in furtherance of" the overall RICO conspiracy: they were committed at the same times, by the same persons, in accordance with the same general methods, and in pursuance of the same broad schemes as the offenses chargeable as RICO predicates. Brown, 823 F.2d at 598. The counts so vehemently contested by defense counsel — the Assault With Intent to Kill counts — are also alleged as RICO predicates ("racketeering acts"), as those assaults were allegedly "in furtherance of" the stated goal of "maintaining in safe places the weapons, body armor, and money of the enterprise." Superseding Indictment (Count I). As such, due to the way the Government has defined the scope of the RICO enterprise, the Assault With Intent to Kill counts are properly joined in the Superseding Indictment. See Eufrasio, 935 F.2d at 567 (refusing to sever counts or defendants where one co-defendant's RICO liability was predicated on attempted extortion and a separate murder conspiracy that (1) did not involve his co-defendants and (2) of which his co-defendants were unaware because the criminal acts were undertaken "in furtherance of a single, commonly charged racketeering enterprise"). With the broad RICO conspiracy alleged as the connective tissue between the subsequent counts — which illustrate various actions by the multiple defendants in furtherance of their allegedly multi-faceted enterprise — the counts in the Superseding Indictment are properly joined under Rule 8(b).
Notwithstanding the presence of the RICO conspiracy, however, the Government also attempts to join the Assault With Intent to Kill charges in the Indictment as part of the conspiracy to commit offenses against the United States in violation of 18 U.S.C. § 371 (Count II). See Superseding Indictment (Count II), ¶ 1 ("The allegations set forth in paragraphs 1 through 5 and 10 of Count One of this Indictment are herein re-alleged and incorporated by reference."); Superseding Indictment (Count I), ¶ 10(K-M, V-W) (describing the two Assault With Intent to Kill acts against Edwin Arrington based on local D.C. statutory offenses). The objects of the Section 371 conspiracy, according to the Government, were: "to obtain money and other things of value; to protect members of the conspiracy; and to maintain in safe places the weapons, body armor, and money of the conspiracy." Superseding Indictment (Count II), ¶ 3. Count II explicit notes that the Defendants
did unlawfully and knowingly combine, conspire, confederate and agree to commit offenses against the United States, that is, to assault and put in jeopardy the life of persons by the use of a dangerous weapon in the commission of the offense of bank robbery, in that they would, while armed with firearms, by force and violence, against resistance and by putting in fear, steal and take from persons and from the immediate actual possession of persons, property of value, that is, money belonging to, and in the care, custody, control, management and possession of banks, the deposits of which were then insured by the Federal Deposit Insurance Corporation, in violation of Title 18 United States Code, Sections 2113(a) and (d).Id., ¶ 2.
Importantly, as the Government described the evidence during the Motions Hearings held before this Court on March 21 and March 22, 2005, the assaults on Mr. Arrington do not appear to be related to the conspiracy to commit offenses against the United States in violation of 18 U.S.C. § 371 by committing armed bank robberies and related weapons' offenses. See Gov'ts First Notice of 404(b) Evidence at 5, ¶ 7 ("The evidence at trial, however, will demonstrate that this shooting was motivated by the alleged theft of additional weapons belonging to this criminal enterprise. The allegedly stolen weapons had been stored together for the purpose of a retaliation shooting, planned by defendants Stoddard, Morrow and others, against a rival neighborhood gang."). During the relevant Motions Hearings, the Government admitted that none of the weapons allegedly stolen by Mr. Arrington, for which he was allegedly assaulted by various defendants in retaliation, were used in any of the bank robberies. Indeed, at the Motions Hearing held on March 22, 2005, the Government explicitly noted the disconnect between the two counts alleging Assault With Intent to Kill under the local D.C. statute and the separate Section 371 conspiracy to commit armed bank robberies as an offense against the United States:
I think that we would say, Your Honor, that these assaults themselves are more a part of the RICO conspiracy than the 371 conspiracy, although they do come in under a Mathis theory in proving the 371 conspiracy in that they would give the jury the more complete background and explain the relationships among the defendants and the illegal relationships of the participants.
3/22/05 Tr. at 155:18-24.
To maintain these alleged assaults against Mr. Arrington as part of the Section 371 conspiracy charged under Count II, the Government must establish that there exists a "logical relationship between the acts or transactions" charged, United States v. Perry, 731 F.2d 985, 989 (D.C. Cir. 1984), evidenced by a "consistent, logically interlocked set of goals," United States v. Hubbard, 474 F. Supp. 64, 86 (D.C. Cir. 1989). However, the Government has not established a "logical relationship" between the charged conspiracy to commit offenses against the United States through armed bank robberies and the assaults on Mr. Arrington. Rather, the assaults against Mr. Arrington — directed at securing weapons that were never used in the bank robberies and that were instead intended to settle a neighborhood "beef" — are simply too attenuated to the conspiracy to commit offenses against the United States to be included as relevant actions to be considered in Count II. The assaults are simply not part of the same acts or transactions that constituted the Section 371 conspiracy — in a word, they are "unrelated."
The Government's citation to United States v. Mathis, 216 F.3d 18 (D.C. Cir. 2000), in this context is unavailing. Certainly, Mathis stands for the permissive principle that "[i]n a conspiracy prosecution, the government is usually afforded considerable leeway in offering evidence of other offenses `to inform the jury of the background of the conspiracy charged, to complete the story of the crimes charged, and to help explain to the jury how the illegal relationship between the participants of the crime developed.'" Id. at 26 (quoting United States v. Williams, 205 F.3d 23, 33-34 (2d Cir. 2000)). However, there is a distinct difference between (1) presenting evidence regarding the two alleged assaults on Mr. Arrington in order to show both the background of the Section 371 conspiracy and the linkage of its members, and (2) asserting that the two alleged assaults were actually part of the Section 371 conspiracy and may be identified as such in the Superseding Indictment. Simply, while there might be an overlap in membership between the defendants who allegedly participated in the Arrington assaults and the defendants charged with the Section 371 conspiracy, the defendants in the Arrington assaults were acting in furtherance of a goal much different than the object of the Section 371 conspiracy. With separate goals and no overlap in evidence, the assaults lack a logical relationship to the armed bank robberies which form the bases for the Section 371 conspiracy.
In sum, the Court concludes that all of the Counts in the Superseding Indictment are properly joined against all Defendants under Rule 8(b) due to the expansive RICO conspiracy alleged. However, the conspiracy to commit offenses against the United States in violation of Section 371 is a considerably narrower conspiracy, and the two Assaults With Intent to Kill Edwin Arrington are unrelated to that conspiracy. Therefore, to the extent that the language of Count II incorporates Paragraph 10(K)-(M), (V)-(W) of Count I, which refers to the two Arrington assaults, the Court orders that such language be stricken from the Superseding Indictment. The Court does emphasize that the structure of the Superseding Indictment is largely unaffected by this order, however, as RICO provides the "connective tissue" and expansive joinder necessary to combine all of the counts in the Indictment in one trial.
ii. Rule 14
In the alternative, Defendants argue that even if severance is not required under Rule 8(b), it is still required under Federal Rule of Criminal Procedure 14, which provides that the Court may grant severance of counts if "it appears that a defendant or the government is prejudiced by a joinder." "[T]he defendant requesting the severance bears the heavy burden of showing that joinder would violate his constitutional fair trial rights." Edelin, 118 F. Supp. 2d at 41. Under Rule 14, Defendants must demonstrate that "there is a serious risk that a joint trial would compromise a specific trial right . . . or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro, 506 U.S. at 539, 113 S.Ct. 933.
Defendants basic argument under Rule 14 is that there is a danger of "spillover" wherein the jury might attribute the counts charging Assault With Intent to Kill — Counts XX and XXI of the Superseding Indictment — to the defendants not charged with that offense. Moreover, Defendants also focus on the danger that jurors may cumulate and apply the evidence from the Assault With Intent to Kill charges to the other counts in the Superseding Indictment. "A defendant raising a claim of prejudicial spillover bears an extremely heavy burden." Friedman, 854 F.2d at 563. "[I]t will not suffice to establish that a defendant would have had a better chance of obtaining an acquittal at a separate trial." Id. (citing cases). "Rather, the defendant must show that he or she suffered prejudice so substantial as to amount to a `miscarriage of justice.'" Id. (citation omitted). Importantly, in Drew v. United States, 331 F.2d 85 (D.C. Cir. 1964), the D.C. Circuit recognized that "the principal elements of prejudice from a joint trial are largely absent in a situation where evidence of each of the joined offenses would be admissible in a separate trial for the other, under the rules governing admissibility of `other crimes' evidence." Baker v. United States, 401 F.2d 958, 974 (D.C. Cir. 1968) (citing Drew, 331 F.2d at 90). The danger of prejudice is alleviated to a sufficient degree when "evidence of the joined offenses would be mutually admissible, or if not, the evidence is sufficiently `simple and distinct' to mitigate the danger of cumulation." Id. (citing Drew, 331 F.2d at 90-92).
The Court rejects Defendants' assertions and finds that they have not displayed "undue prejudice" or prejudice amounting to a "miscarriage of justice" for three reasons. First, the Court believes that Defendants have failed to demonstrate why the evidence will confuse a jury. "While many counts are involved, this alone is not sufficient to reach the conclusion that the jurors will cumulate the evidence." Singh, 973 F. Supp. at 19. Here, the Government maintains, and the Court agrees, that the substantive counts of armed bank robbery and assault with intent to kill are "separate and distinct." See 3/22/05 Tr. at 174:3-12. These counts may be considered separately, and the Court is confident that the Government's evidence will be both simple and distinct as to these substantive counts. Singh, 973 F.Supp. at 19; Baker, 401 F.2d at 974. Furthermore, Defendants have completely failed to demonstrate why limiting instructions to the jury will not cure any potential problems. The Court finds that any "spillover" can be cured by a carefully worded limiting instruction. See Edelin, 118 F.Supp. 2d at 42 ("One of the preferred methods for reducing the risk of prejudice is by instructing the jury on their duties and on the evidence. While all prejudice cannot be eliminated through the use of jury instructions, jurors are presumed to be able to follow the instructions of the court."); United States v. Talley, 109 F.3d 277, 280 (11th Cir. 1997) ("limiting instructions often will suffice to cure any risk of prejudice"); Singh, 973 F. Supp. 19 ("Jurors are presumed to follow the instructions of the court, and as stated above, the Supreme Court has recognized that in most cases, instructions will cure any possible harm."). Defendants fall far short of establishing that this is a case in which jury instructions will be insufficient to prevent any "undue prejudice" or a "miscarriage of justice."
Defendant Palmer also maintains that he might suffer prejudice from the inclusion of a count charging him with an Unlawful Possession of a Firearm due to his previous felony. Def. Palmer's Suppl. Mot. at 6. The Court notes that possible prejudice resulting from the identification of his previous felony may be cured sufficiently by a jury instruction or by a stipulation between Defendant Palmer and the Government much like the one entered into between Defendant Stoddard and the Government on a similar charge, which was approved of by this Court in an earlier ruling.
Second, Defendants' argument is necessarily premised upon a belief that evidence of the different charges would not be allowed in separate trials. However, as the Government has argued and the Court agrees, in the RICO and Section 371 conspiracies, evidence is "mutually admissible" against the separate defendants because a defendant can be part or just one part of a conspiracy but may be held liable for the foreseeable acts of all other members of the conspiracy — i.e., acts "in furtherance" of the conspiracy. See 3/22/05 Tr. at 174:3-7. For instance, as noted previously, despite Defendants' attempts to cabin these offenses, the Court has concluded that Defendants are properly charged with participation in a single RICO conspiracy. Each defendant is therefore a "fully implicated conspirator, and most of the evidence of which [they] complain would have been admissible against [them] in a separate trial as acts of co-conspirators in furtherance of a conspiracy." United States v. Bari, 750 F.2d 1169, 1178 (2d Cir. 1984); see also United States v. Nersesian, 824 F.2d 1294, 1304 (2d Cir. 1987) (in trial lasting five months, government entitled to present "the entire range of evidence of the conspiracy" against each of sixteen defendants). "[W]here evidence of joined offenses would be mutually admissible in separate trials of those offenses, severance is not ordinarily required. . . ." Bradley v. United States, 433 F.2d 1113, 1118 (D.C. Cir. 1969).
The substantive Assault With Intent to Kill Edwin Arrington counts — also charged as RICO racketeering acts — represent actions taken by members of the enterprise in furtherance of two of the enterprise's goals, as described in Count I of the Superseding Indictment: "(1) maintaining in safe places the weapons, body armor, and money of the enterprise, and (2) retaliating against persons who interfered with the operation of the enterprise, including the actual and perceived thefts of weapons by non-members of the enterprise." Superseding Indictment (Count I). As such, the two charged assaults are inextricably linked with the RICO enterprise and would be mutually admissible even if each of the defendant's trials were severed; if the counts charging Assault With Intent to Kill themselves were severed, it is quite possible that evidence concerning those assaults would still be admissible against all defendants as either direct evidence relating to the conspiracy or Rule 404(b) evidence, especially under a Mathis theory. See Mathis, 216 F.3d at 135. Because evidence relevant to Count I (the RICO conspiracy count) would be "mutually admissible," severance is not warranted. See Brown, 16 F.3d at 432 ("Further, the district judge did not abuse his discretion in denying Brown's Rule 14 motion for severance of counts because, as we have said, the evidence of firearms possession offenses was cross-admissible had Brown been tried alone on the drug-trafficking offenses."); United States v. Gambler, 662 F.2d 834, 836 n. 2 (D.C. Cir. 1981) ("[T]he district court did not abuse its discretion in denying the motion for severance under Federal Rule of Criminal Procedure 14, where the evidence would have been mutually admissible in separate trials.").
Third, in balancing the risk of prejudice to the defendants not named in the Assault With Intent to Kill counts against the significant benefits of trying all Defendants and all relevant counts jointly, the Court concludes that the scales tip heavily in favor of a joint trial. The benefits of a joint trial are substantial. Joint trials "play a vital role in the criminal justice system." Marsh, 481 U.S. at 209, 107 S.Ct. 1702. In Marsh, the Supreme Court reasoned that
It would impair both the efficiency and the fairness of the criminal justice system to require, in all these cases of joint crimes where incriminating statements exist, that prosecutors bring separate proceedings, presenting the same evidence again and again, requiring victims and witnesses to repeat the inconvenience (and sometimes trauma) of testifying, and randomly favoring the last-tried defendants who have the advantage of knowing the prosecution's case beforehand.Id. at 210, 107 S.Ct. 1702. Forcing the Government to try the Defendants not named in Count XX and XXI separately from the Defendants named in those counts or compelling the Government to try those named Defendants twice for the same RICO conduct (once with all conduct save the two Arrington assaults, once with just the Arrington Assaults) would place a great burden on the Government, one that is clearly unwarranted given the minimal risk of prejudice and the connection of those acts to the goals of the greater RICO enterprise.
Accordingly, the Court concludes that severance of counts pursuant to Rule 14 is also unwarranted. Defendants have not demonstrated any undue "spillover" that cannot be cured. Moreover, the public's interest in the efficient and economic administration of justice is served by tying the counts together, as there is a significant overlap of intent, identification, and scientific evidence such that separate trials would duplicate one another in the presentation of evidence. Here, the jury will hear all of the testimony and can be expected to follow the Court's instructions and segregate certain evidence. Joinder of the offenses in one trial before the Court is simply not unduly prejudicial in this instance on this record.
III: CONCLUSION
For the reasons set forth above, the Court shall deny without prejudice (1) Defendants' Joint Motion and Incorporated Memorandum of Points and Authorities for Relief From Improper Joinder and For Severance of Offenses and/or Defendants; (2) Defendant Lionel Stoddard's Motion to Sever Counts; (3) Defendant Lionel Stoddard's Motion to Sever Defendants; (4) Defendant Bryan Burwell's Motion to Sever Counts and Try the Co-Defendants Separately; (5) Defendant Carlos Aguiar's Motion to Sever Defendants and/or Sever Counts; (6) Defendant Perkins' Motion for Relief from Prejudicial Joinder of Defendants; (7) Defendant Malvin Palmer's Supplemental Motion to Sever Defendants and Counts and Points and Authorities in Support Thereof; and (8) Defendant Malvin Palmer's Second Supplemental Motion to Sever Defendants and Counts and Points and Authorities in Support Thereof. However, as described supra Section II(B)(2)(i), the Court orders that all language relating to the two alleged assaults against Edwin Arrington incorporated in Count II of the Superseding Indictment be stricken from the Indictment as unrelated to the conspiracy charged. An Order accompanies this Memorandum Opinion.