Opinion
CR 18-01695-018-TUC-JAS (EJM)
04-04-2022
United States of America, Plaintiff, v. Dezirae Alexandria Monteen, Defendant.
REPORT AND RECOMMENDATION
Eric J. Markovich, United States Magistrate Judge.
Pending before the Court is defendant Dezirae Alexandria Monteen's Motion to Sever her trial from co-defendants Shawmaine Eustace Ardell Moore, Samuel Lee Berrelle Rakestraw III, and Michael Anthony Williams. Monteen argues that her trial should be severed from these co-defendants because she will be prejudiced by “spill-over” evidence about a murder and violent acts admitted at a joint trial which is only relevant to these co-defendants. The government argues that the alleged “spill-over” evidence would be admissible if Monteen were tried alone, and jury instructions could cure any alleged prejudice. For the reasons discussed below, this Court recommends that the District Court deny the Motion to Sever. [Doc. 938.]
FACTUAL BACKGROUND
On October 20, 2021, a federal grand jury sitting in Tucson, Arizona returned a Second Superseding Indictment against Monteen and eighteen other individuals. The offenses charged in the Second Superseding Indictment pertain to an alleged criminal enterprise operated by a gang known as the Western Hills Bloods (“WHB”). Monteen is charged with the following eight felony offenses in the Second Superseding Indictment. Count One charges Monteen (as well as Moore, Rakestraw, Williams and other co-defendants) with participating in a RICO conspiracy, in violation of 18 U.S.C. §§ 1962(d) and 1963(a), the objects of which are: (a) acts involving murder (18 U.S.C. §§ 1959(b)(1) and 1961(1)); (b) offenses involving drug trafficking (21 U.S.C. §§ 846 and 841); and (c) acts involving the obstruction of justice (18 U.S.C. § 1512). Counts 14 and 17 charge Monteen (and Williams) with Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2. Count 24 charges Monteen (and Williams and other co-defendants) with Conspiracy to Possess with Intent to Distribute Cocaine, in violation of 21 U.S.C. §§ 846 and 841. Count 33 charges Monteen (and Williams) with Conspiracy to Possess with Intent to Distribute Marijuana, in violation of 21 U.S.C. §§ 846 and 841. Counts 34 and 37 charge Monteen (and Williams) with Possession with the Intent to Distribute Marijuana, in violation of 21 U.S.C. § 841. Count 38 charges Monteen (and Williams) with Possession with the Intent to Distribute Cocaine, in violation of 21 U.S.C. § 841.
As is evident from the discussion above, defendant Williams is charged with all of the offenses alleged against Monteen. However, Williams is also charged with the following additional offenses which are not alleged against Monteen: (1) Count Two: Violent Crime in Aid of Racketeering - Conspiracy to Commit Murder, in violation of 18 U.S.C. § 1959(a)(5); (2) Count Three: Violent Crime in Aid of Racketeering - Murder, in violation of 18 U.S.C. §§ 1959(a)(1) and 2; (3) Count Four: Use of a Firearm During and in Relation to a Crime of Violence Resulting in Death, in violation of 18 U.S.C. §§ 924(j), 924(c)(1)(A)(i), (ii), (iii), and 2; (4) Counts 12, 13, and 16: Possession of a Firearm by a Prohibited Person, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and (5) Count 25: Possession with Intent to Distribute Cocaine, in violation of 21 U.S.C. § 841.
Defendants Moore and Rakestraw are charged with Monteen and Williams in Count One, the RICO conspiracy. Like Williams, Moore and Rakestraw are also charged in Counts Two, Three, and Four; again, Monteen is not charged in those counts. Moore and Rakestraw are not charged with any of the other many drug or firearm offenses alleged against Monteen, Williams, and/or other co-defendants.
On November 23, 2021, Monteen filed a Motion to Sever her trial from co-defendants Michael Williams, Moore and Rakestraw. Monteen argues that because she is not charged in Counts Two, Three, and Four (the murder offenses), evidence related to these offenses admitted at a joint trial would be prejudicial and thus prevent the jury from making a reliable judgment about her guilt or innocence. Stated another way, the evidence related to the murder offenses would create a risk of her guilt by association. Monteen also argues that a jury instruction would be insufficient to cure the prejudice created from this “guilt by association” evidence.
In its Response [Doc. 980], the government argues that a severance is not warranted based on the “spill-over” evidence on the murder offenses because the defendant is charged in the RICO conspiracy (Count One). Therefore, all of the evidence relating to the alleged overt acts in Count One, including evidence related to the murder and other acts of violence, would be admissible even if Monteen was tried alone. The government also points out that overt acts allege that Monteen took actions to cover up the murder, including lying to law enforcement. (Overt Act 16 in Count One of the Second Superseding Indictment.) Additionally, the government argues that evidence at trial will show that Monteen publicly supported the co-defendants' violence on social media. Finally, the government argues that a jury instruction can cure any alleged prejudice.
DISCUSSION
Under Federal Rule of Criminal Procedure 8(b), multiple defendants may be joined in the same indictment “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.” Compliance with Rule 8(b) is usually satisfied if the defendants are charged with a conspiracy. United States v. Baltas, 236 F.3d 27, 33 (1st Cir. 2001); United States v. Montgomery, 262 F.3d 233, 244 n. 1 (4th Cir. 2001).
However, Federal Rule of Criminal Procedure 14 provides that even when defendants and/or counts are properly joined under Rule 8, a severance may be appropriate to avert prejudice to a defendant. “Rule 14 sets a high standard for a showing of prejudice.” United States v. Vasquez-Velasco, 15 F.3d 833, 845 (9th Cir. 1994). That is because there is a preference in the federal system for joint trials of defendants that are indicted together. Zafiro v. United States, 506 U.S. 534, 537 (1993). In fact, when defendants are charged with a conspiracy, a joint trial is particularly appropriate because concern for judicial efficiency is less likely to be outweighed by possible prejudice to the defendants since much of the same evidence would be admissible against each defendant in separate trials. United States v. Fernandez, 388 F.3d 1199, 1242 (9th Cir. 2004), modified, 425 F.3d 1248 (9th Cir. 2005).
A defendant carries the heavy burden of making a strong showing of factually specific and compelling prejudice resulting from a joint trial. United States v. Kenny, 645 F.2d 1323, 1345 (9th Cir. 1981). To meet that burden, “the defendant [must] show ‘clear,' ‘manifest,' or ‘undue' prejudice from a joint trial, ” United States v. Polizzi, 801 F.2d 1543, 1553-54 (9th Cir. 1986), and must demonstrate the jury's inability to distinguish the evidence relevant to each defendant and even if a defendant is able to show some potential jury confusion, such confusion must be balanced against society's interest in speedy and efficient trials. United States v. Benton, 852 F.2d 1456, 1469 (6th Cir. 1988).
In determining the prejudicial effect of a joint trial, a court must consider: (1) whether the jury may reasonably be expected to collate and appraise the individual evidence against each defendant; (2) the judge's diligence in instructing the jury on the limited purposes for which certain evidence may be used; (3) whether the nature of the evidence and the legal concepts involved are within the competence of the ordinary juror; and (4) whether defendants can show, with some particularity, a risk that the 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. United States v. Fernandez, 388 F.3d at 1242. Prejudice must be of such magnitude that a defendant is denied a fair trial. United States v. Douglass, 780 F.2d 1472, 1478 (9th Cir. 1986). In assessing whether joinder is prejudicial, of foremost importance is whether the evidence as it relates to the individual defendants is easily compartmentalized. Vasquez-Velasco, 15 F.3d at 846.
The Court first notes that Monteen does not claim she and/or the offenses alleged against her are improperly joined under Rule 8 with Williams, Moore and Rakestraw, and/or the additional offenses alleged against them. Rather, she argues that a severance of her trial is warranted under Rule 14 because of the prejudice resulting from “spill-over” evidence regarding the murder and acts of violence. As discussed below, the Court concludes that Monteen cannot meet the “high standard for a showing of prejudice” to justify a severance of her trial.
Monteen's argument in support of a severance is doomed by her inclusion in Count One, the vast RICO conspiracy, whose objects include murder, violence, and drug trafficking, including the use of firearms to commit those offenses, as well as obstruction of justice. In addition to Count One, Monteen and Williams are charged in multiple drug trafficking and firearms counts, which are also alleged as overt acts in the RICO conspiracy. More importantly, Overt Act 16 in Count One alleges that Monteen sold her vehicle which was used by her boyfriend Williams during a shooting the prior day, apparently in an attempt to conceal that crime. That same overt act alleges that Monteen obstructed justice - one of the objects of the RICO conspiracy - by falsely telling law enforcement that she sold her vehicle prior to the shooting. Additionally, the government has represented that evidence will be presented at trial that Monteen used social media to support the WHB and their violence.
The Court finds that the evidence detailed above linking Monteen to violent acts and attempts to cover up those acts committed in furtherance of the RICO conspiracy would undoubtedly be admissible at trial even if she were tried alone. Additionally, because that evidence suggests that Monteen was both aware of the shooting and supported WHB's violent acts generally, the violent acts allegedly committed by Williams, Moore, Rakestraw, and other co-defendants are relevant to Monteen's involvement in the conspiracy, and thus would also be admissible if Monteen were tried alone. This Court has no doubt that a jury can compartmentalize the evidence against Monteen, as compared with Williams, Moore, and Rakestraw, and decide guilt or innocence based not on her “association” with co-defendants, but on the evidence relating to the offenses charged against her. And a jury instruction can assist the jury to ensure compartmentalization between the murder charges and the offenses alleged against Monteen. For these reasons, Monteen has not shown that she will be clearly, manifestly, or unduly prejudiced by the admission of this evidence at a joint trial. As such, a severance is not warranted.
CONCLUSION
For the reasons detailed above, the Court recommends that the District Court deny Monteen's Motion to Sever her trial from co-defendants Michael Williams, Moore, and Rakestraw.
Pursuant to Federal Rule of Criminal Procedure 59(b)(2), any party may serve and file written objections within 14 days of being served with a copy of this Report and Recommendation. A party may respond to the other party's objections within fourteen days. No. reply brief shall be filed on objections unless leave is granted by the district court. If any objections are filed, this action should be designated case number: CR 18-01695-TUC-JAS. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).