Opinion
Criminal No. 99-256-06.
October 22, 1999
ORDER AND MEMORANDUM ORDER
AND NOW, to wit, this 22nd day of October, 1999, upon consideration of Defendant Kenneth Spencer's Motion for Severance (Document No. 84, filed September 27, 1999), and the Government's Opposition to Defendant's Motion (Document No. 85, filed October 1, 1999), IT IS ORDERED, for the reasons set forth in the accompanying Memorandum, that Defendant's Motion for Severance is DENIED.
MEMORANDUM
I. BACKGROUNDDefendant Kenneth Spencer, a former Philadelphia Police Officer assigned to the Narcotics Unit, has been charged in a multiple count superseding indictment with a number of drugrelated crimes: (a) aiding and abetting a conspiracy to possess with intent to distribute heroin and cocaine base ("crack") in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2; (b) aiding and abetting the possession with intent to distribute cocaine base ("crack") in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and (c) use of a telecommunications facility to facilitate the commission of a drug trafficking crime in violation of 21 U.S.C. § 843(b). In addition to Spencer, the superseding indictment names six alleged drug dealers as defendants.
Spencer filed a Motion for Severance in which he seeks a severance of his trial from that of his co-defendants pursuant to Federal Rule of Criminal Procedure 14. He argues that his trial should be severed from that of his co-defendants because of the prejudice he will suffer if forced to defend himself in a joint trial. In support of his argument, Spencer claims the following: (a) his defense at trial "will be antagonistic, and/or inconsistent with that of his co-defendant's [sic] and may include evidence of illegal activity on their part aside from the government's evidence" (Motion for Severance, at ¶ 10); (b) he will suffer undue prejudice because, as a police officer, he previously "arrested one of his co-defendant's [sic] and possibly other unindicted or unnamed codefendants" (Id. at ¶ 11); (c) he will be prejudiced by the government's potential use of an unindicted co-conspirator as a witness at trial — according to the motion, Spencer allegedly had a romantic relationship with the witness, who is the daughter of one of the co-defendants (Id. at ¶ 7-8); and (d) "there is a danger that the jury will unjustifiably infer that where conflicting, inconsistent or irreconcilable defenses are presented by numerous defendants, that none of the them are valid". (Id. at ¶ 13).
Rule 14 provides, in relevant part:
If it appears that a defendant . . . is prejudiced by a joinder . . . of defendants in an indictment . . . for trial together, the court may . . . grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at trial.
The government, in its opposition to Spencer's motion, notes first that Spencer does not assert that he has been misjoined with his co-defendants. Next, the government points to the strong presumption that properly joined co-conspirators should be tried together, and argues that Spencer's general allegation of antagonistic and inconsistent defenses, and resulting prejudice without any detail, fail to establish any basis for granting the severance.
II. DISCUSSION
As the Supreme Court has noted, "[t]here is a preference in the federal system for joint trials of defendants who are indicted together." Zafiro v. United States, 506 U.S. 534, 537 (1993). Notwithstanding that preference, a severance may be warranted, pursuant to Rule 14 of the Federal Rules of Criminal Procedure, in cases where there is a serious risk of prejudice to a particular defendant because of the joinder. See id. at 539. That defendant bears the burden of demonstrating that he has been prejudiced, however, and the burden is a difficult one: "The defendant must show something more than the fact that a separate trial might offer him a better chance of acquittal." See United States v. Harris, 542 F.2d 1283, 1312 (7th Cir. 1976) (citations omitted). Ultimately, the decision whether or not to grant a severance is left to the district court's sound discretion. See Zafiro, 506 U.S. at 539. The Court concludes that Spencer has failed to satisfy his burden of demonstrating that he will be prejudiced by the joinder.
Spencer first claims that he will be prejudiced because his defenses are antagonistic to, and inconsistent with, those of his co-defendants, but he has not provided any detail. In this Circuit, to warrant a severance, an antagonistic defense must conflict "to the point of being irreconcilable and mutually exclusive." United States v. Provenzano, 688 F.2d 194, 198 (3rd Cir. 1982) (citations omitted); see also United States v. Voigt, 89 F.3d 1050, 1094 (3rd Cir. 1996) (citations omitted) (noting that a defense may be considered antagonistic when "acquittal of one codefendant would necessarily call for the conviction of the other"). As the Third Circuit has noted, "[w]hile mutually antagonistic defenses have been much discussed in theory, only rarely have courts found that they exist in practice." Voigt, 89 F.3d at 1094.
In determining whether mutually antagonistic defenses exist such that a severance may be required, the district court must ascertain whether "the jury could reasonably construct a sequence of events that accommodates the essence of [the moving party's] defenses." Id. Spencer states in his Motion for Severance that his defense "will be antagonistic and/or inconsistent with that of his co-defendants," yet he fails to specify what about his defense will be antagonistic. For example, Spencer cursorily asserts that his defense "may include evidence of illegal activity on [the part of his co-defendants] aside from the government's evidence." However, even if such evidence is used to attack his co-defendants, it would not preclude a jury from constructing a sequence of events that accommodates Spencer's defenses. With appropriate limiting instructions, the Court has no doubt that a jury would be able to separately consider Spencer's defense including evidence of illegal activity on the part of his co-defendants, on the one hand, and the defenses offered by the codefendants, on the other.
Next, Spencer claims that he will be prejudiced by the fact that he arrested one of his co-defendants while he served as a police officer. As the government points out, this concern does not raise any defense to the charges against Spencer, much less demonstrate that acquittal of Spencer on the current charges would necessarily call for the conviction of this other person. The mere presence of hostility among defendants is insufficient to require a severance, see Provenzano, 688 F.2d at 198, and Spencer's status as a police officer does not entitle him to a trial separate from other alleged conspirators who were not police officers, see, e.g., Harris, 542 F.2d at 1313.
Spencer also asserts that an unindicted co-conspirator with which it is alleged he had a romantic relationship is the source of the only evidence of illegal activity on his part. However, he fails to state how that situation will lead to prejudice in a joint trial.
Lastly, again without providing any detail, Spencer states that where conflicting, inconsistent or irreconcilable defenses are presented by numerous defendants, there is a danger that the jury will improperly infer that none of them are valid. The Court concludes that this concern can be appropriately handled by limiting instructions.
Assuming arguendo that Spencer could establish he had an antagonistic defense to the defenses of his co-defendants that, without more, does not establish prejudice. See Zafiro, 506 U.S. at 538. As the Supreme Court stated in Zafiro, for defendants who have been properly joined under Rule 8(b), 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."Id. at 539. In this case, Spencer has simply not carried his burden of demonstrating to the Court how any of his specific trial rights will be negatively affected by a joint trial.
The Supreme Court in Zafiro discussed several situations which involved a "serious risk" that a joint trial might compromise the rights of a defendant, but none of those situations is present in this case. For instance, unlike theZafiro discussion, there is no suggestion in this case that the government will use evidence against one of Spencer's co-defendants that would otherwise be inadmissible against Spencer if he were tried alone. Similarly, Spencer does not argue that there is any exculpatory evidence that would be available to him if tried alone, but not available to him during a joint trial.
The Court recognizes that this case may involve different degrees of culpability among co-conspirators, a factor which raises the risk of prejudice. But Spencer has not expressly raised this concern, and any prejudice resulting from different degrees of culpability will be remedied by the Court through appropriately tailored instructions at trial. See Zafiro, 506 U.S. at 538 (finding that jury instructions "sufficed to cure any possibility of prejudice"). Defendants are not entitled to severance "merely because they may have a better chance of acquittal in separate trials," Id. at 540, nor because they did not participate in every act alleged in furtherance of the conspiracy, see United States v. Thornton, 1 F.3d 149, 153 (3d Cir. 1993). As the Third Circuit has stated, "[n]either a disparity in evidence, nor introducing evidence more damaging to one defendant than others entitles seemingly less culpable defendants to severance." United States v. Eufrasio, 935 F.2d 553, 568 (3d Cir. 1991).
The Court concludes, therefore, that Spencer has not established that he is entitled to a severance pursuant to Rule 14 of the Federal Rules of Criminal Procedure — he has not established that his defenses are antagonistic to those of his co-defendants and, even assuming his defenses are antagonistic to the defenses of one or more co-defendants, he has not carried his burden of demonstrating that he will suffer prejudice that warrants a severance under Rule 14.
III. CONCLUSION
For the reasons set forth above, Defendant Kenneth Spencer's Motion for Severance is denied.