The opinion of the court was delivered by: C. Clifford Shirley, Jr. United States Magistrate Judge
All pretrial motions in this case have been referred to the undersigned pursuant to 28 U.S.C. § 636(b) for disposition or report and recommendation regarding disposition by the District Court as may be appropriate. This matter came before the Court on October 3, 2006, for a scheduled motion hearing on Defendant Hunter's Motion For Severance Of Counts Of Indictment [Doc. 21], filed on August 3, 2006, and Defendant Hunters' Motion To Preclude Evidence Of Alleged Phone Calls [Doc. 26], filed on August 4, 2006. Assistant United States Attorney Tracee Plowell was present representing the government. Attorney Brian Hunt was present representing Defendant Hunter, who was also present.
1. Motion For Severance Of Counts Of Indictment [Doc. 21]
a. Position of the Parties
Defendant is charged along with Co-Defendant Luella Cobb in an eight-count indictment [Doc. 1], as follows:
Count One charges that, on or about December 24, 2004, Defendants Hunter and Cobb*fn1 engaged in counterfeiting.
Counts Two through Five charge that, on or about December 25, 2004, Defendant Hunter possessed with the intent to distribute five grams or more of a mixture and substance containing a detectable amount of cocaine base; possessed with intent to distribute cocaine hydrochloride; possessed a firearm in furtherance of a drug trafficking crime, namely the possession with intent to distribute cocaine base and cocaine hydrochloride; and that Defendant Hunter possessed various firearms, after having been convicted of crimes punishable by terms of imprisonment exceeding one year.
Counts Six through Eight charge that, on or about May 21, 2006, Defendant Hunter possessed with intent to distribute five grams or more of a mixture and substance containing a detectable amount of cocaine base; possessed a firearm in furtherance of a drug trafficking crime, namely the possession with intent to distribute cocaine base; possessed a firearm, after having been convicted of crimes punishable by terms of imprisonment exceeding one year.
In his motion [Doc. 21], Defendant Hunter moves the Court to sever Count One from the remaining counts of the Indictment and to sever Counts Six through Eight from the remaining counts of the Indictment. In the alternative, Defendant Hunter moves the Court to sever Counts One through Five from Counts Six through Eight of the Indictment. In support thereof, Defendant argues that: (1) pursuant to Rule 8(a) of the Federal Rules of Criminal Procedure, Count One is improperly joined with the remaining counts, (2) pursuant to Rule 14 of the Federal Rules of Criminal Procedure, Defendant would be severely and unfairly prejudiced by the introduction of gun and drug evidence in a trial in this case on counterfeiting, (3) Counts Six through Eight should be severed from the remaining counts because Defendant would like to testify in Counts Six through Eight, but needs to abstain from testifying in Count One and Counts Two through Five, and (4) evidence of Defendant's guilt in regards to Counts One through Five appears much weaker than the evidence in Counts Six through Eight and, thus, there is danger that there could be a "spill over" effect.
The government opposes [Doc. 29] Defendant's motion, indicating that on December , 2004, officers of the Knoxville Police Department responded to a call of two people passing counterfeit currency in the Dillard's store. Investigation revealed that Defendants Cobb and Hunter had passed counterfeit currency at both Knoxville Center and West Town Malls in Knoxville, Tennessee; officers recovered the counterfeit fifty dollar bills from the stores and from Defendants. On December 25, 2006, officers executed a state search warrant for Defendant Cobb and Hunter's residence. Pursuant to the warrant, the officers recovered twenty-eight counterfeit fifty dollar bills along with a quantity of cocaine, crack cocaine, marijuana, digital scales and firearms. At the October 3, 2006 hearing, the government argued that Counts One through Five are properly joined under Rule 8(a) because Count One is part of the same transaction as Counts Two through Five in that possession of the counterfeit currency on December 24, 2004, was the same basis for the search warrant which was executed the following day on December 25, 2004. It further argued that the evidence introduced at trial on Count One would quite clearly overlap with Counts Two through Five and, thus, these acts are connected and constitute parts of a common occurrence.
With regard to Counts Six through Eight, the government argued that these counts are likewise properly joined because, here, Defendant is charged with the same offenses (possession with intent to distribute cocaine base; possession of a firearm in furtherance of a drug trafficking crime; and possession of a firearm as a convicted felon) as charged in Counts Two through Five. The government further noted that the facts set forth in Counts Two through Five would also be admissible with respect to Counts Six through Eight as 404(b) evidence to prove intent.
With regard to Defendant's argument that Defendant would be prejudiced by the joinder pursuant to Rule 14, the government argued that Defendant has failed, in his affidavit, to make a convincing showing that he has important testimony to give as to Counts Six through Eight, as well as a strong need to refrain from testifying as to Counts One through Five, and, thus, no basis exists to sever the counts. Finally, the government argued that this case is uncomplicated and possible "spillover" can easily be cured with a jury ...