The opinion of the court was delivered by: Chief Judge Curtis L. Collier
On February 6, 2007, defendant Charles Jerome Jones ("Defendant"), a/k/a "Bony Jones," a/k/a "B.J.," filed a Motion to Sever pursuant to Fed. R. Crim. P. 14 (Court File No. 97). The Government has not responded to this motion.*fn1 After considering the issues presented in Defendant's Motion and the supporting Memorandum (Court File No. 98), this Court DENIES Defendant's Motion to Sever (Court File No. 97). An order is attached.
At present, Defendant and co-defendants Cory Winston, Tommy Phillips, Ithornial Maffet, Sidney Petty, Kermit J. Stiles, III, Cedric Vance, Marcus Carlisle, Kelvin Lloyd, Cleveland Bell, III, Robert Phillips, Jr., Varian L. Ford, and Anthony Flemister are charged together in a thirteen-count indictment filed December 12, 2006 (Court File No. 1). Defendant is specifically charged in Count One with conspiracy to distribute 5 kilograms or more of cocaine hydrochloride and 100 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. (Id.). Only co-defendant Cory Winston has notified the court of his intent to plead guilty (Court File No. 100). Accordingly, Defendant and eleven co-defendants are scheduled for a joint trial on April 16, 2007 (Court File No. 117).
A. To Obtain a Severance, Defendant Must Demonstrate a Serious Risk a Joint Trial will Compromise one of Defendant's Specific Trial Rights or Prevent the Jury from Making a Reliable Judgment About Defendant's Guilt or Innocence
Fed. R. Crim. P. 8(b) permits two or more defendants to be jointly indicted for participation in the same series of acts or transactions constituting the offense(s). Fed. R. Crim. P. 8(b). Each and every defendant need not be charged in each and every count. Id. The Court has wide discretion and solid grounds to deny a motion for severance, as the United States Supreme Court has repeatedly expressed a preference for joint trials of defendants indicted together to promote judicial economy and prevent inconsistent verdicts. Zafiro v. United States, 506 U.S. 534, 537 (1993); see also United States v. Long, 190 F.3d 471, 476 (6th Cir. 1999). There is a strong policy presumption favoring joint trials for co-defendants when criminal charges result from the same acts and will need be proved by the same evidence. United States v. Critton, 43 F.3d 1089, 1098 (6th Cir. 1995). This is especially true when the defendants are charged with joint participation in a common conspiracy. United States v. Cope, 312 F.3d 757, 779-80 (6th Cir. 2002).
A properly joined defendant -- and Defendant does not challenge the act of joinder itself -- is not entitled to a separate trial simply because he may have a better chance for acquittal. Long, 190 F.3d at 476 (citing Zafiro, 506 U.S. at 540). Rather, the test is whether there is serious risk a joint trial would compromise a defendant's specific trial rights or would prevent the jury from making a reliable determination as to each defendant's guilt or innocence. Zafiro, 506 U.S. at 539. To obtain severance, a defendant bears the heavy burden of presenting specific facts which would support a court finding "substantial prejudice," "undue prejudice," or "compelling prejudice" to the defendant. United States v. Corbleigh, 75 F.3d 242, 247 (6th Cir. 1996); United States v. Welch, 97 F.3d 142, 148 (6th Cir. 1996); United States v. Warner, 971 F.2d 1189, 1196 (6th Cir. 1992); United States v. Moore, 917 F.2d 215, 221 (6th Cir. 1990). The jury is presumed to be capable of following limiting instructions, sorting out the evidence, and separately considering each charge against each individual defendant. Welch, 97 F.3d at 147; Cobleigh, 75 F.3d at 247; Moore, 917 F.2d at 222.
B. Defendant has not Met the Burden of Presenting Specific Facts which would Support the Court Finding Substantial Prejudice
The risk of prejudice varies with the facts and circumstances of each case, and the district court has wide discretion to weigh such factors. Defendant bases his motion on several grounds, including: (1) The case is complicated with a great deal of wire-tapped phone activity, and the jury may be not be able to "collate and appraise the independent evidence against each defendant (Court File No. 97, ¶ 1). (2) The primary focus of the investigation is on Cory Winston and Tommy Phillips (Id. at ¶ 2). (3) Defendant is implicated on only a small percentage of the copious phone calls (Id. at ¶¶ 3-4). (4) Admission of all the phone calls in a joint trial will spill over and deprive Defendant of a "fair trial under the Fourteenth Amendment" (Id. at ¶ 8). (5) Defendant's involvement in the conspiracy was limited to marijuana, while many of the calls and the other co-defendants dealt in cocaine (Id. at ¶ 6). (6) During the investigation, three residential searches took place, and Defendant was not "implicated" in any of these searches (Id. at ¶ 5).
This Court finds the above grounds insufficient to show undue, substantial, or compelling prejudice. First, Defendant states that there are "thousands" of phone calls in this case and cites to status reports provided every ten days to the Criminal Court for the Eleventh District of Tennessee (Court File No. 98, pp. 2-4). According to the motion, the Government's discovery statement notes seventy-five calls implicating Defendant, Defendant's counsel ascertained one call, and a written discovery report alludes to nine calls (Id. at p. 4). Defendant asserts that "obviously, to be joined*fn2 with numerous parties talking about drugs," there is some probability of prejudicial spillover and Defendant will be found guilty by association (Id.). However, the only facts proffered are that there are numerous phone calls and Defendant appears on fewer calls than some of his co-defendants.*fn3 These conclusive claims are not enough to overcome two fundamental presumptions: (1) jurors can and will follow admonitory instructions, Richardson v. Marsh, 481 U.S. 200, 206 (1987), and (2) jurors can sift through evidence and separately evaluate each co-defendant's conduct and culpability, Welch, 97 F.3d at 147; Cobleigh, 75 F.3d at 247; Moore, 917 F.2d at 222. The fact there are multiple drugs involved is not uncommon in a conspiracy case; Defendant does not explain how his case is different or why the inclusion of cocaine would subject his prosecution to undue prejudice. "While an important element of a fair trial is that a jury consider only relevant and competent evidence bearing on the issue of guilt or innocence, a fair trial does not include the right to exclude relevant and competent evidence." Zafiro, 506 U.S. 540. The fact Defendant focused his alleged activity on one specific drug also fails to support an inference that jurors will be confused; if anything, jurors should be better able to separate Defendant from those co-defendants involved on the cocaine side of the conspiracy. The Court observes that co-defendant and "primary focus" Cory Winston has filed a notice of his intent to plead guilty; therefore, evidence against such co-defendant will not be heavily presented at trial, further decreasing any possible chance of juror confusion due to the focus of the prosecution or the complexity of the evidence. Additionally, the Court, and Defendant through appropriate motion, will have opportunity at trial to instruct the jury as to the proper use, limitation, and consideration of all evidence. Id.
C. Defendant's Speculation of Co-Defendants' Statements is Premature and does not show Sufficient Risk of Prejudice to Justify Granting Severance.
In his Motion, Defendant speculates that a confession or statement (made by co-defendant Tommy Phillips in his Motion, but no specific individual is named in his brief) may be admitted at trial by the Government and may prejudice Defendant's case (Court File No. 97, ¶ 9). Accordingly, Defendant requests the Court, pursuant to Fed. R. Crim. P. 14(b), to order the Government produce all statements or confessions made by co-defendants which the Government intends to introduce into evidence at trial for the Court's in camera inspection (Id. ¶ 10; Court File No. 98, pp. 4-5).
In Bruton v. United States, the Supreme Court held that a defendant's Confrontation Clause rights might be violated if, in a joint trial, a co-defendant's statement or confession is admitted into evidence against the co-defendant, but the co-defendant does not take the stand to permit the defendant's cross-examination. Bruton, 391 U.S. 123 (1968). The Supreme Court has narrowed the Bruton rule, holding there is no Confrontation Clause violation if a non-testifying co-defendant's statement or confession is admitted, with a proper limiting instruction, if such confession is redacted to eliminate any reference to the "existence" of the defendant. Richardson, 481 U.S. at 211. The Bruton rule is violated by admission of a co-defendant's statement if the statement contains obvious deletions, because obvious deletions are obvious to a jury and directly accuse the defendant, without permitting confrontation. Gray v. Maryland, 523 U.S. 185 (1998)). The Sixth Circuit has held that Bruton permits use of a ...