Opinion
P-00-CR-315(12)-F
February 6, 2001
ORDER DENYING DEFENDANT'S MOTION FOR SEVERANCE
Before this Court is Defendant's Motion for Severance. After careful consideration of the facts and the law, the Court is of the opinion that the Defendant's Motion should be DENIED.
FACTS AND PROCEDURAL HISTORY
By superceding indictment filed on December 12, 2000, the Defendant Samar Garcia, along with some other sixteen defendants, is charged with conspiring to distribute and to possess with intent to distribute marihuana in an amount greater than 1,000 kilograms, in violation of 21 U.S.C. 846. Count One identifies several overt acts committed by several defendants to effect the objects and purposes of the conspiracy. In part relevant to the Defendant, the conspiracy involved the smuggling of marihuana from the Republic of Mexico to the United States and the transportation and distribution of the marihuana within the united states. Paragraph `19' alleges that the conspiracy utilized "scout," "lead," or "decoy" vehicle formations to smuggle and transport the marihuana and to avoid detection by law enforcement. Under Paragraph `14' of Count One, Defendant is described as being a loader and guide for vehicle utilized in the alleged smuggling and transportation. Specifically, Paragraph `cc' alleges that on December 12, 1999, several other defendants drove a motor home carrying some 309.72 kilograms of marihuana, which Defendant Garcia alleged had loaded onto the home. Count Two charges several defendants, including Defendant Garcia, with knowingly conspiring to import marihuana, in an amount greater than 1,000 kilograms, from Mexico into the United States in violation of 21 U.S.C. § 952 (a), 960. Several other defendants including Defendant Garcia are also charged with knowingly possessing with the intent to distribute, aided and abetted by each other, marihuana in an amounts greater than 100 kilograms but less than 1,000 kilograms, on two separate occasions, in violation of 21 U.S.C. § 841 (a)(1) and 18 U.S.C. § 2. These violations are charged in Counts Nine and Twelve. Finally, several defendants, including Defendant Garcia, are charged in Count Nineteen with knowingly and intentionally, aided and abetted by each other, employing, hiring, persuading, enticing, and/or coercing at least one minor to possess with the intent to distribute marihuana, in an amount greater than 100 kilograms but less than 1,000 kilograms, in violation of 21 U.S.C. § 861 (a)(1) and 18 U.S.C. § 2.
Defendant moves for a severance and separate trial from the other named defendants based on the prejudice that the joinder of the other defendants inflicts on Defendant. Specifically, Defendant claims that since he has no prior criminal record, he would be harmed by the fact that the other named defendants have extensive criminal records. This harm is heightened, the Defendant argues, by the fact that he is a friend of the felonious defendants and a jury will almost certainly imply their criminal histories onto the Defendant. The Court finds these arguments unpersuasive.
DISCUSSION
FED. R. CRIM. P. 14 affords a district court the authority to sever properly joined defendants. However, severance should be granted only in limited circumstances. United States v. Rocha, 916 F.2d 219, 227 (5th Cir. 1990). It is a long-standing rule of criminal procedure that persons indicted tog ether should be tried together. Id. at 227-28. This applies to cases involving conspiracy. United States v. De la Torre, 639 F.2d 245, 249 (5th Cir. 1981). In this case, joinder of the Defendant under the indictment in light of his extensive alleged participation in the conspiracy, including several counts of possession marihuana with the intent to distribute. Id. (finding that the defendant was properly joined in trial for conspiracy even though count alleged only one overt act by the defendant). The test for severance under Rule 14 is whether the jury will be able to reasonably "sort out the evidence and view each defendant and the evidence relating to that defendant separately." Id. at 228 (citation omitted). If necessary to accomplish this task, the Court will give the appropriate limiting instructions to prevent any potential prejudice to the Defendant that may be caused by a joint trial. The Defendant's argument that he will be prejudiced by use of the co-defendents criminal records to impeach their testimony is misplaced. First, any unfair prejudice that might be suffered by the Defendant as a result of the evidence of the co-defendant's criminal record being allowed for the purposes of impeachment can be no greater than the prejudice that might affect the co-defendants themselves. As such, the Defendant fails to show that there is prejudicial joinder sufficient to warrant severance. De la Torre, 639 F.2d 245, 249 (5th Cir. 1981) ("That the criminal record of a co-defendant might be prejudicial to a defendant generally does not alone require severance."); United States v. Robinson, 503 F.2d 208, 215 (7th Cir. 1974) (holding that the "the mere assertion that the impact of impeachment evidence pertaining to [one defendant] may carry over to [another defendant] thereby prejudicing him is not enough to meet the difficult burden imposed on a party seeking to establish prejudicial joinder").
In light of the absence of any showing of prejudice to the Defendant warranting severance as well as the availability of limiting instructions, the Court finds that severance is not warranted.
CONCLUSION
It is therefore ordered that the Defendant's Motion for Severance is DENIED.