The opinion of the court was delivered by: Chief Judge Curtis L. Collier
On February 6, 2007, defendant Varian Lashon Ford ("Defendant"), a/k/a "Skin Bone," a/k/a "Skinny," a/k/a "Shon," filed a Motion to Sever pursuant to Fed. R. Crim. P. 14 (Court File No. 114). 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. 115), this Court DENIES Defendant's Motion to Sever (Court File No. 114). 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., Charles Jerome Jones, and Anthony Flemister are charged together in a 13-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. Cobleigh, 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 (notably, the exact same grounds as espoused by co-defendant Charles Jerome Jones), 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. 114, ¶ 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. Defendant cites to status reports provided every ten days to the Criminal Court for the Eleventh District of Tennessee (Court File No. 115, p. 2). According to the motion, the discovery statements provided by the Government note "only one call" intercepted from Defendant (Court File No. 114, ¶ 4), but Defendant's brief and the attached Exhibit show 93 calls between Defendant and co-defendant Tommy Phillips' "Target Telephone" (Court File Nos. 115, p.3; 115-2, p. 22). There appears to be some confusion in Defendant's counsel's review of the discovery materials as to whether Defendant made one, two, many calls, or any calls at all (Court File No. 115, p. 3). 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 may appear on fewer calls than some of his co-defendants, and Defendant does not clearly present this argument as the number of calls is apparently in question.*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 ...