Opinion
CR-18-01695-005-TUC-JAS (EJM)
02-22-2022
United States of America, Plaintiff, v. Michael Anthony Williams, Defendant.
REPORT AND RECOMMENDATION
ERIC J. MARKOVICH, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is defendant Michael Anthony Williams' Motion to Sever his trial from co-defendant Shawmaine Eustace Ardell Moore. Both defendants are charged in Counts One through Four of a Second Superseding Indictment. As discussed fully below, these offenses involve a RICO conspiracy, murder, drug trafficking, and use of a firearm during the commission of those offenses. Williams is also charged with additional drug and firearm offenses. Williams alleges that a severance of his trial is necessary so that Moore can be available to provide exculpatory testimony on Williams' behalf and to avoid antagonistic defenses. The government argues that a severance of Williams' trial is not warranted because he has not demonstrated that Moore would testify at a severed trial or that his testimony would be exculpatory. For the reasons discussed below, the Court concludes that Williams has not met his burden to establish that a severance of his trial is warranted based on the inability to present exculpatory testimony or antagonistic defenses. As such, this Court recommends that the District Court deny the Motion to Sever [Doc. 945].
FACTUAL BACKGROUND
On October 20, 2021, a federal grand jury sitting in Tucson, Arizona returned a Second Superseding Indictment against Williams, Moore, and 17 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"). Williams and Moore are charged with the following four felony offenses (Counts One through Four) in the Second Superseding Indictment. Count One charges Williams and Moore (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). Count Two charges Williams and Moore (and other co-defendants) with Violent Crime in Aid of Racketeering - Conspiracy to Commit Murder, in violation of 18 U.S.C. § 1959(a)(5). Count Three charges Williams and Moore (and other co-defendants) with Violent Crime in Aid of Racketeering - Murder, in violation of 18 U.S.C. §§ 1959(a)(1) and 2. Count Four charges Williams and Moore (and other co-defendants) with 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.
Williams is also charged with the following additional offenses which are not alleged against Moore: (1) 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); (2) Counts 14 and 17: 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; (3) Count 24: Conspiracy to Possess with the Intent to Distribute Cocaine, in violation of 21 U.S.C. §§ 846 and 841; (4) Count 25: Possession with the Intent to Distribute Cocaine, in violation of 21 U.S.C. § 841; (5) Count 33: Conspiracy to Possess with the Intent to Distribute Marijuana, in violation of 21 U.S.C. §§ 846 and 841; (6) Counts 34 and 37: Possession with the Intent to Distribute Marijuana, in violation of 21 U.S.C. § 841; and (7) Count 38: Possession with the Intent to Distribute Cocaine, in violation of 21 U.S.C. § 841.
On November 30, 2021, Williams filed a Motion to Sever his trial from co-defendant Moore. As noted above, Williams argues that a severance is warranted so that Moore can provide exculpatory testimony on behalf of Williams at a severed trial. Williams points out that Moore already testified on his behalf at a state trial which involved Williams' alleged possession of an SKS assault rifle. Williams' possession of this firearm is alleged as Overt Act 13 (and linked to Overt Act 12) in Count One (the RICO conspiracy) of the Second Superseding Indictment. Williams maintains that a severance is necessary because Moore "cannot be called as a witness at a trial in which he is a defendant." [Doc. 945 at 3.]
Williams acknowledges that if Moore invokes his Fifth Amendment right not to testify at a joint trial, Moore's prior state testimony will likely be admissible pursuant to Fed.R.Evid. 804. However, Williams argues that the admission of this prior testimony would result in antagonistic defenses between himself and Moore at a joint trial. "Although defense theories have yet to be fully developed," Williams argues that Moore "will most likely not agree that he was in possession" of the firearm at issue. And if the government argues that Moore and Williams were somehow involved in the shooting because of their proximity to the firearm, Williams will have to defend against that allegation by admitting Moore's prior testimony. Williams reasons that the admission of that testimony would place him and Moore "in an antagonistic position wherein the jury could not accept one theory of the defense without precluding the other." [Id. at 4.]
The government argues that Williams has not met the burden required to sever a trial based on the inability to present exculpatory testimony at a joint trial. Specifically, Williams has not shown that Moore would testify at a severed trial or that his testimony would be exculpatory. The government also points out that Williams has asserted that Moore's allegedly exculpatory prior testimony will likely be admitted at the federal trial, thus eliminating the need to call Moore as a witness at a joint trial. The government does not address the antagonistic defense argument.
In his Reply, Williams attaches Moore's prior state court testimony which he claims exculpates him with respect to Overt Acts 12 and 13 in Count One. Williams was charged with a state offense related to the firearm at issue in Overt Act 13. Moore, who had already been convicted of a state offense and was serving a ten-year sentence, testified at Williams' state trial. Moore testified that after leaving a strip club with some friends (which did not include Williams) he drove to a convenience store. When he exited the store, his vehicle was gone. He eventually learned that his vehicle was at a hotel. Upon arriving at the hotel, Moore entered his vehicle and saw several firearms, including the firearm referenced in Overt Act 13. He testified that the firearms were not in plain view in the front portion of the vehicle; they were wedged between the passenger seat and console and on the back floorboard of the vehicle. At some point, Williams arrives at the hotel and gets into the front passenger seat of Moore's vehicle. They then drive to another hotel. Moore testified that he did not tell Williams about the firearms in the vehicle and Williams did not have a firearm on his person. Williams was not present in the vehicle when Moore removed the firearms from where they were initially located in the vehicle. The police later arrived and discovered the firearms, which led to state prosecutions of Moore and Williams.
DISCUSSION
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 showing 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). Stated another way, prejudice must be of such magnitude that a defendant is denied a fair trial as a result of the 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. See United States v. Douglass, 780 F.2d 1472, 1478 (9th Cir. 1986); United States v. Fernandez, 388 F.3d at 1242.
1. Inability to Present Exculpatory Testimony at Trial.
"When the reason for severance is the asserted need for a codefendant's testimony, the defendant must show that he would call the codefendant at a severed trial, that the codefendant would in fact testify, and that the testimony would be favorable to the moving defendant." United States v. Vigil, 561 F.2d 1316, 1317 (9th Cir. 1977). In assessing whether a defendant has met this burden, a court must weigh the good faith of the defendant's intent to have a codefendant testify, the possible weight and credibility of the predicted testimony, the probability that such testimony will materialize, the economy of a joint trial, and the possibility that the trial strategy of a codefendant will prejudice the defendant seeking a severance. United States v. Kaplan, 554 F.2d 958, 966 (9th Cir. 1977).
Here, Williams has not met his burden to show that a severance is warranted based on the inability to present exculpatory testimony at a joint trial. The Court first notes that Williams has not definitively stated that he will call Moore to testify at a severed trial. In fact, Williams states that "defense theories have yet to be fully developed." But putting that trial strategy point aside, Williams has not confirmed or represented to the Court that Moore would in fact testify at a severed trial. Without confirmation that Moore would testify at a severed trial, Williams cannot meet his burden to establish that a severance of his trial is warranted. Nevertheless, the Court will address whether Moore's testimony would be exculpatory or favorable to Williams.
Assuming that Moore's testimony at the federal trial is consistent with his prior state court testimony, there is no doubt that Moore's testimony is at least favorable (even if not truly exculpatory) to Williams and would be helpful to his defense. The government argues that Moore's testimony is not exculpatory because the jury found Williams guilty of firearms offenses. However, the government made that argument prior to being provided with the transcript of Moore's testimony at the state trial. The Court finds that the government's argument goes more towards the credibility of Moore's prior testimony, and not whether that testimony is favorable or has exculpatory value for Williams at his federal trial. Because the Court has no idea of the evidence presented against Williams at his state trial that led to his conviction, this Court cannot conclude that the jury found Moore's testimony incredible. And if Moore testified at a severed trial, the government could attempt to show that Moore's testimony regarding Williams' knowledge of the firearms is not credible through cross-examination and/or argument to the jury. As a result, if Williams had both committed to calling Moore as a witness at a severed trial and confirmed that Moore would in fact testify, then the Court would conclude that the exculpatory value of Moore's testimony weighs in favor of a severance. But since Williams has not made those showings, a severance is not warranted.
The Court notes that Williams will be able to introduce Moore's allegedly exculpatory prior state court testimony under Fed.R.Evid. 804 if Moore invokes his Fifth Amendment right not to testify at a joint trial. The admission of Moore's prior testimony under Fed.R.Evid. 804 does not turn on whether there is a joint trial or severed trial. Thus, Williams is already ensured of the relief he seeks via his severance motion to assist in his defense - i.e., the admission of Moore's prior testimony at the federal trial that Williams did not possess (or was even aware of) the firearm used to commit a murder. Indeed, Williams does not claim that Moore would provide any other exculpatory or favorable testimony at the federal trial.
Finally, the Court also notes (for what it's worth) that the admission of Moore's prior testimony at the state trial is arguably more advantageous to Williams' defense than Moore's testimony at a severed federal trial. Moore's testimony at the federal trial is a wildcard. Given that Williams does not even know if Moore would testify at a severed trial, Williams most likely has no idea if Moore's testimony would be consistent with his state court testimony since Moore is now charged with a murder committed with a firearm that was in his vehicle. In fact, Williams posits that Moore will most likely not agree that he was in possession of the firearm at issue. Additionally, Williams has no idea about what Moore may testify to about Williams' involvement in the charged federal offenses, even if Moore again testifies that Williams never possessed or saw the gun used to commit the murder. By contrast, the substance of Moore's prior testimony is a certainty and limited to the fact that Williams did not possess or know about the firearms (including the one used in the murder) in Moore's vehicle.
For the reasons discussed above, the Court concludes that a severance of Williams' trial is not warranted based on the inability to present exculpatory testimony.
2. Antagonistic Defenses.
Williams correctly acknowledges that in order to prevail on his Motion to Sever his trial based on antagonistic defenses, he must show that the core of Moore's defense is so irreconcilable with the core of his defense that the acceptance of Moore's theory by the jury precludes Williams' acquittal. United States v. Sherlock, 962 F.2d 1349, 1363 (9th Cir. 1989). As discussed below, Williams cannot meet this burden.
Again, Williams argues that a severance of his trial is warranted because he and Moore have antagonistic defenses. Williams first asserts that Moore will most likely not agree that he was in possession of the firearm at issue. Williams further asserts that the government will likely argue that both Williams and Moore were involved in the shooting because of the proximity of the firearm. Williams argues that he will have to defend against that allegation by admitting Moore's prior state court testimony. And the admission of that prior testimony will result in an antagonistic position between Williams and Moore because the jury could not accept Williams' theory of defense - that he did not possess the firearm - without precluding the same defense offered by Moore.
At oral argument, the Court expressed its confusion as to how the defenses are antagonistic if Moore's prior testimony is admitted at a joint trial. The Court pointed out that Moore's allegedly prior exculpatory testimony would most likely be admitted at either a joint or severed trial. The Court further pointed out that if that is true, then the prior testimony helps Williams and likely hurts Moore, again, regardless of whether Williams and Moore are tried together or separately. But that is Moore's problem at a joint trial, and that problem is of no concern to Williams generally, or specifically in terms of antagonistic defenses at a joint trial. As a result, the Court asked Williams' counsel to elaborate on how their defense was antagonistic to Moore's defense.
Counsel conceded that if Moore's prior testimony is admitted at a joint trial his argument regarding antagonistic defenses is diminished because Moore "just has to sit there and bear the brunt of it." [1/20/22 Tr. at 10.] However, counsel asserted that sometime before trial, Moore may argue that his defense is antagonistic to Williams' defense.
The Court is not sure how Moore could argue for a severance based on antagonistic defenses given that his prior testimony - regardless of whether it inculpates him and/or exculpates Williams - will be admissible at either a joint or severed trial. Stated another way, Moore's defense that he did not possess the firearm, and perhaps Williams did, is weakened by Moore's prior testimony, and a severance of his trial would not cure that problem. All that said, the Court is not now dealing with a severance motion filed by Moore based on antagonistic defenses. Thus, any impact that the admission of Moore's prior testimony at a joint trial would have on Moore is simply not relevant to Williams' Motion to Sever. Williams has failed to show how his speculative arguments about Moore's and the government's likely theories at trial render his defense antagonistic to Moore's defense at a joint trial. For those reasons, the Court recommends that the Motion to Sever be denied on this ground as well.
CONCLUSION
For the reasons detailed above, the Court recommends that the District Court deny the Motion to Sever.
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).