Opinion
Criminal Action No. 3:99CR-26-S
May 21, 1999.
MEMORANDUM OPINION
This matter is before the Court on several Motions to Sever made by Defendants in this case. Defendant Julius Black has moved for severance from his co-defendants, and for severance of Count 12 of the Indictment. Defendant Marvin Hayes has moved for severance of Counts 2 and 3 of the Indictment. Pursuant to the Motions to Adopt Co-Defendants' Motions, Defendants Walter James Johnson, Sean Bishop, Marvin Hayes, Sherman Sherley, and Maya Russell join Black in his Motion for Severance of Defendants, and Defendants Black, Johnson, Bishop, Sherley, and Russell join Marvin Hayes in his Motion to Sever Counts 2 and 3.
This Court does not have sufficient information from the United States to rule upon these motions at this time. The responses of the United States are long on law, but devoid of a theory of the case and facts it intends to prove that would show a sufficient relation between the counts of the Indictment. Therefore, this Court will request, by separate order, that the United States supplement its responses with a good-faith proffer, in general terms, of what facts it intends to prove at trial with respect to the relatedness of the counts charged in this case. For purposes of guidance, we will examine the relevant rules and law pertinent to these motions.
The Indictment
The indictment in this case contains twelve counts, which include a total of ten defendants. Count I charges Robert Hayes with operating a continuing criminal enterprise. Count 2 charges all ten defendants with conspiracy to distribute cocaine. Count 3 charges Defendants Robert Hayes, Marvin Hayes, Javier Martinez, Jose Colchado, Julius Black, Jay Hall and Sean Bishop with conspiracy to distribute marijuana. Counts 4 through 10 charge Robert Hayes with money laundering proceeds of drug transactions. Counts 11 and 12 charge Robert Hayes and Black with passing counterfeit currency.
Severance of Defendants
The applicable Federal Rules of Criminal Procedure are Rule 8(b) and Rule 14. Rule 8(b) states:
Two or more defendants may be charged in the same 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. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.
The Sixth Circuit has stated that "joinder of multiple defendants is proper under Rule 8(b) only if each of the counts of the indictment arises out of the same act or transaction or series of acts or transactions, even if all counts of the indictment include a common defendant." United States v. Hatcher, 680 F.2d 438, 441 (6th Cir. 1982). In subsequent cases, the Sixth Circuit has further explained this standard. In United States v. Johnson, 763 F.2d 773 (6th Cir. 1985), the court held that "a group of acts or transactions constitutes a `series' if they are logically interrelated. A group of acts or transactions is logically interrelated, for instance, if the acts or transactions are part of a common scheme or plan." Id. at 776(citations omitted). In contrast, the court in Hatcher reversed a conviction for misjoinder where "no connection" existed between one defendant and the drug charges against his co-defendant. Hatcher, 680 F.2d at 441.
The second rule applicable to this motion is Rule 14, which only comes into play if joinder is proper under Rule 8(b). Rule 14 states:
If 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 for 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.
In implementing Rule 14, courts are to balance "the interest of the public in avoiding a multiplicity of litigation and the interest of the defendant in obtaining a fair trial." United States v. Wirsing, 719 F.2d 859, 854-65 (6th Cir. 1983).
Black has stated that it is his belief that his co-defendants will attempt to exculpate themselves by implicating him at trial. However, the Supreme Court has rejected the establishment of a bright-line rule mandating severance when co-defendants have conflicting defenses. Zafiro v. United States, 506 U.S. 534, 538 (1993). Instead, severance should be granted 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." Id. at 539. In addition, even if a risk of prejudice does exist, limiting instructions will often be sufficient to cure any risk of prejudice. Id. Separate trials are necessary only when a defendant makes a showing of specific and compelling prejudice resulting from a joint trial which can be rectified only by separate trials. United States v. Barrett, 933 F.2d 355, 361 (6th Cir. 1991).
Severance of Counts
The rules applicable to Black's Motion for Severance of Count 12, and Marvin Hayes' Motion to Sever Counts 2 and 3, are Rule 8(a) and Rule 14. The consideration of possible prejudice under Rule 14 by joinder of two offenses for trial is relevant to this motion, but first, the requirements of Rule 8(a) must be satisfied. Rule 8(a) states:
Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
If charges are not of the same or similar character (such as conspiracy to distribute a controlled substance and counterfeiting), then a nexus must be established between the charges in order to properly join them in the same indictment. For example, in United States v. Wirsing, 719 F.2d 859 (6th Cir. 1983), the Sixth Circuit found joinder of a conspiracy count and a tax evasion count was proper because the tax evasion count resulted from unreported income derived from the conspiracy.
Conclusion
As an examination of the relevant law demonstrates, the determination of whether joinder of offenses and defendants is proper depends largely upon the facts of the case and whether a sufficient nexus can be shown to justify joinder. We therefore request by separate order that the United States supplement its response in order to assist this Court in determining whether the offenses and defendants have been properly joined.