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.
I. MATTERS BEFORE THE COURT
This matter was scheduled to come before the Court for hearing on the merits of all pending motions on September 25, 2007. On September 24, 2007, counsel for Defendant Johnnie Martin filed Motion to Continue Motion Hearing [Doc. 200] and [Doc. 201], stating that Attorney James A. H. Bell was then engaged in a state court trial and described an urgent family matter then underway for co-counsel William Hood. The Court found good cause had been shown to continue the hearing of motions filed on behalf of Mr. Martin and his request was orally granted. The motions hearing commenced on September 25, 2007, and was scheduled to resume on November 26, 2007, the first date the parties were available to present evidence and argument on the remaining motions of Martin's remaining motions, some of which were adopted by his co-defendants Hall, Manning and Orr, as well as the Motion to Dismiss and Motion to Suppress filed by Hall. Hall's remaining motions were anticipated to require an evidentiary hearing. Further, the parties agreed that the issue of Hall's severance would depend upon the disposition of her motion to suppress. The motion for severance being contingent upon the outcome of the suppression issues, that motion necessarily remained under advisement pending the evidentiary hearing on November 26, 2007, and the resulting rulings. On November 26, 2007, the Court resumed the motions hearing and was prepared to receive evidence and hear argument on the merits of Defendant LaShonda Hall's Motion to Suppress Statements [Doc. 132]; and Motion to Dismiss Counts 2, 3, 4 & 15 of Superseding Indictment and Memorandum in Support [Doc. 128], the preference suggested by counsel, as well as all remaining pending motions of Martin. On November 26, 2007, the announcement of the parties' positions obviated the need for an evidentiary hearing on the Motion to Suppress statement, which has been deemed moot as noted herein. AUSA Jennings stated that he has been notified by their respective counsel that defendants Orr and Manning have accepted plea agreements offered by the government.*fn1 However, the Court heard arguments and took under advisement Hall's Motion to Dismiss Counts 2, 3, 4 & 15 of Superseding Indictment and Memorandum in Support [Doc. 128] under advisement and will issue a Report and Recommendation as to their disposition to the District Court. Having concluded the hearing of motions as to all defendants, all pending motions subject to disposition by this Court are addressed herein.
At the hearing on September 25, 2007, defendants with motions pending before the Court were present, with the exception of Martin as previously noted. Defendant Aaron Brooks was present with his attorney, Rowland Cowden. Defendant LaShonda Hall was present with her attorney, Mike Whalen. Defendant Tony Manning was present with his lawyer, Russ Greene. Defendant Matthew Orr was present with Attorney Alexander Brown. The Court excused all other defendants and their counsel from appearance. Assistant United States Attorney David Jennings and Assistant United States Attorney Tracee Plowell were present on behalf of the government. When the hearing resumed on November 26, 2007, Johnnie Martin was present with his attorneys James A. H. Bell and William Hood. LaShonda Hall was present with her attorney, Mike Whalen. Assistant United States Attorney David Jennings and Assistant United States Attorney Tracee Plowell were present on behalf of the government for all proceedings. At the hearings, the Court proceeded in a logical (rather than by filing date or docket number) order and will endeavor to do so herein.
II. MOTIONS SUBJECT TO DISPOSITION
A. MOTIONS TO ADOPT (HALL, MANNING, ORR AND MARTIN)
LaShonda Hall filed a Motion to Adopt [Doc. 140] Johnnie Martin's [Doc. 72] Motion for Enright Hearing. Martin's Motion for Enright Hearing [Doc. 72] was also the subject of Tony Manning's Motion to Adopt [Doc. 144]; and Matthew Orr's Motion to Adopt [Doc. 174]. Orr also sought to adopt, in [Doc. 172], Aaron Brooks' [Doc. 136] Motion to Sever; in [Doc. 173], Orr sought to adopt Manning's [Doc. 145], a "Giglio motion." Martin filed a Motion to Adopt Pleadings of Co-Defendants [Doc. 71] at the time he was represented by prior counsel in which he asks leave to join co-defendants' motions as they relate to the issues of conspiracy and discovery. That filing did not specify any particular motion which he seeks to adopt as his own. Because he specified two broad topics under which he seeks to adopt motions filed, there is no way for the Court to know which specific motions Martin has adopted, as motions may relate to more than one issue, or may seek any number of remedies. Further, Martin's later counsel filed their own substantive motions addressing these same issues. Accordingly, Martin's Motion to Adopt Pleadings of Co-Defendants [Doc. 71] is DENIED as overly broad, while [Doc. 140], [Doc. 144], [Doc. 174], [Doc. 173], and [Doc. 172] were GRANTED at the start of the September 25, 2007, hearing. The disposition of the adopted motions shall apply to those defendants who have adopted them, unless otherwise expressly noted in the Court's ruling.
B. MOTION TO SEVER (BROOKS AND ORR)
Defendant Aaron Brooks moves the Court to sever his trial from that of the other defendants charged in this conspiracy. [Doc. 143]. Defendant Matthew Orr has requested leave to adopt Brooks' arguments in this motion, in his Motion to Adopt [Doc. 172]. The government has responded at [Doc. 188] and opposes severance of Brooks and Orr from the trial of the rest of the defendants.
1. Position of Defendants
In support of severance, Brooks describes facts relating to alleged conspiracy ringleader, Johnnie Martin. Brooks says Martin ascribed to the principles set forth in a book called The 48 Laws of Power. Brooks says excerpts from a copy of this book were provided in discovery and they include handwritten notations to the text made by Martin. In his motion, Brooks lists 8 of the principles, or laws, of the book. On of those listed is Law 17: "Keep others in suspended terror." Brooks asserts that co-defendant Martin has demonstrated his intention to intimidate Brooks and the others during the trial. Brooks cites Martin's behavior at prior motions hearing appearances where all defendants were present together in the courtroom as Law 17 in practice. During a recess in that proceeding, Brooks asserts, Martin verbally intimidated on of the defendants who had taken a position contrary to his own on the issue of trial continuance.
Brooks avers that in addition to presenting a directly antagonistic defense, in order to put forth evidence of these intimidation techniques in defense of participation in the alleged drug conspiracy, Martin's testimony is key to presentation that defense of coercion.
Brooks says that co-defendant Martin has demonstrated his intention to conduct himself inappropriately during court proceedings. Brooks is concerned that Martin's offensive attitude and potential for acting-out during the trial place Brooks at risk of prejudicial spillover effect in the eyes of the jury.
Brooks cites Federal Rules of Criminal Procedure, Rule 14 and Zafiro v. United States, 506 U.S. 534 (1993), in support of severance. Brooks asserts that severance is required to preserve his own right to a fair trial.
The United States responds at Government's Consolidated Response to Motions to Sever by Defendants Brooks and Orr [Doc. 188]. The United States opposes severance for these two defendants, stating that joinder of the defendants is proper under Federal Rules of Criminal Procedure, Rule 8(b) and there is no basis for severance under Rule 14. The government argues that once defendants have been properly joined under Rule 8(b), the burden lies with the defendant to demonstrate "substantial, undue or compelling prejudice warranting severance," citing United States v. DeFranco, 30 F.3d 664, 669-70 (6th Cir. 1994).
2. Position of the Government
The government argues that the general policy in favor of joint trials is strengthened where defendants are charged with participating in the same conspiracy, citing United States v. Weiner, 988 F.2d 629, 634 (6th Cir. 1993); and United States v. Goble, 512 F.2d 458, 465-66 (6th Cir. 1975).
The government asserts that Brooks and Orr have failed to demonstrate a specific trial right that would be so infringed by a joint trial as to mandate severance. The government argues that such infringement of a trial right must be specific or must "prevent the jury from making a reliable judgment about guilt or innocence." United States v. Lopes, 309 F.3d 966, 971 (6th Cir. 2002)(quoting Zafiro, 506 U.S. at 539).
The government argues that "A severance is not necessary simply because a defendant thereby might improve his chance at an acquittal or because there may be an alleged 'spillover' effect of some of the evidence from one defendant to another." [Doc. 188] citing Lopes, 309 F.3d at 971.
Individuals indicted together should be tried together, absent a serious risk of compromise to a specific trial right. United States v. Davis, 170 F.3d 617 (6th Cir.), cert. denied, 528 U.S. 861 (1999); United States v. Cobleigh, 75 F.3d 242, 248 (6th Cir. 1996); United States v. Paulino, 935 F.2d 739 (6th Cir.), cert. denied, 502 U.S. 914 (1991). Except where a miscarriage of justice will result, there is a presumptive expectation that co-defendants should and will be tried together. Richardson v. Marsh, 481 U.S. 200, 206-11 (1987); United States v. Mays, 69 F.3d 116, 120 (6th Cir. 1995), cert. denied, 517 U.S. 1246 (1996).
The Supreme Court has directed "[t]here is a preference in the federal system for joint trials of defendants who are indicted together. Joint trials play a vital role in the criminal justice system. They promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." Zafiro v. United States, 506 U.S. 534, 537 (1993) (internal citations and quotations omitted); see also Fed.R.Crim.P. 8(b) (stating that "[t]wo or more defendants may be charged in the same indictment ... if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses"). This is especially true when two defendants are accused of participating in a conspiracy or joint scheme. United States v. Cope, 312 F.3d 757, 779 -780 (6th Cir. 2002); United States v. Weiner, 988 F.2d 629, 634 (6th Cir.1992).
The Sixth Circuit has held that the severance of jointly indicted defendants is an "extraordinary remedy, employed only to alleviate '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.' " Franklin, 415 F.3d at 556 (citation omitted). A defendant seeking severance "bears a strong burden and must demonstrate substantial, undue, or compelling prejudice." Id. Severance is warranted "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." Zafiro, 506 U.S. at 539.
Notwithstanding the strong preference for joint trials, if a defendant or the government is prejudiced by joinder, Rule 14 permits the court to grant a severance or to "provide whatever other relief justice requires." United States v. Breinig, 70 F.3d 850, 852 (6th Cir.1995); United States v. Gardiner, 463 F.3d 445, 472 (6th Cir., 2006).
Antagonistic, inconsistent, or conflicting defenses put forth by multiple defendants alone do not ordinarily warrant severance, but severance may be appropriate where such defenses are shown to be so mutually exclusive and irreconcilable that a jury will infer guilt from the conflict alone and must disbelieve the core of one defense in order to believe the other defense. While Brooks' description of co-defendant Martin's tactics of intimidation pursuant to a personal creed tends to establish that antagonism exists between the two, it does not establish antagonistic defenses within the meaning of severance jurisprudence. C.f., United States v. Arispe, 41 Fed.Appx. 777 (6th Cir., 2002) (severance not mandated although defendant asserted that his co-defendant's decision to appear at trial in prison garb, and co-defendant's attorney's indication that he could not predict what co-defendant's defense would be, jeopardized his own right to fair trial; holding that defendant was not prejudiced because there was no showing that co-defendant's clothing reflected negatively on defendant and co-defendant did not present antagonistic defense.)
In order to prevail on a motion for severance, a defendant must show compelling, specific, and actual prejudice from a court's refusal to grant the motion to sever. See e.g., United States v. Sherlin, 67 F.3d 1208, 1215 (6th Cir. 1995); United States v. Sivils, 960 F.2d 587, 594 (6th Cir.), cert. denied, 506 U.S. 843 (1992); see also United States v. Beverly, 369 F.3d 516, 534 (6th Cir.2004) ("a defendant is not entitled to severance simply because the evidence against a co-defendant is far more damaging than the evidence against him."); United States v. Warner, 971 F.2d at 1196 ("A showing that a defendant would have a better chance of acquittal in a separate trial does not establish prejudice requiring severance. [ ] To show enough prejudice to require severance, a defendant must establish substantial prejudice."). There has been no showing that Brooks intends to put forth a defense theory to the jury that will be directly inapposite to Martin's defense. Brooks has, likewise, failed to demonstrate a compelling need to present Martin's testimony in his defense, nor that Martin would testify to certain facts at a separate trial. It follows that Brooks has not demonstrated that he will suffer a compelling, specific, and actual prejudice due to antagonistic defenses absent a severance.
Severance should not be granted where the same evidence is admissible against all defendants, nor should it be granted where evidence is admissible against some defendants but not others. Warner, 971 F.2d at 1196. The burden is on defendants to show that an antagonistic defense would present a conflict "so prejudicial that defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty." Id. (citations omitted).
It is difficult to meet this burden by claiming that the jury will improperly consider evidence against one defendant that was introduced only against another as "juries are presumed to be capable of following instructions ... regarding the sorting of evidence and the separate consideration of multiple defendants." Franklin, 415 F.3d at 556 (citations omitted).
The central charge against Brooks is participation in the alleged conspiracy. The evidence of the operation of a conspiracy scheme that gave rise to the charges against all the defendants is common to Brooks and Martin, as they are both charged with a role in the conspiracy. Even assuming Brook's argument that he had a minor role in the conspiracy, "a defendant is not entitled to severance because the proof is greater against a co-defendant." Warner, 971 F.2d (citations omitted).
The Court concludes that the defendants Brooks and Orr have been properly joined for trial with the other defendants charged in this indictment. They have not met their burden to demonstrate a prejudice that will arise unless they are severed for trial from the other defendants. The Court finds that Brooks and Orr have not demonstrated a basis for relief from prejudicial joinder within Rule 14. Brook's Motion to Sever [Doc. 143] is DENIED.
C. MOTIONS FOR ENRIGHT HEARING (BROOKS, HALL, ORR, MARTIN AND MANNING)
1. Position of the Defendants
Defendants Brooks, Hall, Orr, Martin and Manning move the Court to conduct a hearing pursuant to United States v. Enright, 579 F.2d 980 (6th Cir. 1978) in order to determine whether or not the government can satisfy its burden of proof on the existence of a conspiracy before any co-conspirator statements may be admitted in the government's case-in-chief at trial. They argue that before the government can take advantage of the co-conspirator exception of the hearsay rule, it must show by a preponderance of the evidence that a conspiracy existed, that the defendant against whom the hearsay is offered was a member of the conspiracy and that the hearsay statement was made in the course and in the furtherance of the conspiracy. United States v. Vinson, 606 F.2d 144, 152 (6th Cir. 1979). Defendants accurately state that the Sixth Circuit has outlined three alternative methods by which the district court can make a determination as to the admissibility of hearsay statements under the coconspirator exception to the hearsay rule: (1) conduct a pretrial mini-hearing outside the presence of the jury and listen to the proof of the conspiracy, (2) require the government to produce non-hearsay evidence during the course of trial before making the necessary finding, and (3) admit the hearsay statements subject to a later demonstration of their admissibility. Vinson, 606 F.2d at 152-53. The defendants urge the Court to proceed with the first option, conduct a pretrial hearing as to the evidence of the conspiracy before considering admission of the alleged statements. The defendants argue that this is the most cautious and preferred order of proof, citing authority from other circuits in support. They assert that such a pretrial hearing would not be burdensome to the government, and not unduly so when compared to the potential harm averted.
2. Position of the Government
The government opposes a pretrial determination on this issue, responding to all defense requests for this relief in a single, consolidated filing [Doc. 186]. The United States relies upon Federal Rules of Evidence Rule 801(d)(2)(E) provides "a statement is not hearsay if ...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." To be admissible under Rule 801(d)(2), the party offering a co-coconspirator statement must show by a preponderance of the evidence that: (1) the conspiracy existed, (2) the defendant was a member of the conspiracy, and (3) the co-conspirator's statements were made in furtherance of the conspiracy. See United States v. Lora, 210 F.3d 373 (6th Cir. 2000) (unpublished opinion)(citing, United States v. Wilson, 168 F.3d 916, 920 (6th Cir. 1999). This three-part test is often referred to as an "Enright finding." See United States v. Enright, 579 F.2d 980 (6th Cir. 1978). Whether the offering party has made the showing is a question of fact for the court to decide. Fed. R. Evid. 104(a); United States v. Maliszewski, 161 F.3d 992, 1007 (6th Cir. 1998), cert. denied, Villareal v. United States, 525 U.S. 1183 (1999).
While the defendants have correctly stated that Sixth Circuit has approved three potential procedures for resolving this issue, the Sixth Circuit has criticized the first Enright alternative, a pretrial hearing, as burdensome, time consuming and uneconomic. The more practical approach, and the one customarily adopted by this district, is the third option listed, which has been to permit the government to present the hearsay statements of this nature subject to a later demonstration of their admissibility by a preponderance of the evidence. The Court notes that it is the general practice in this district to use the third of these options. In any event, this series of motions relate directly to trial procedures and the admissibility of evidence at trial and will be addressed by the trial judge, District Judge Thomas W. Phillips. Accordingly, the parallel requests made in [Doc. 151] (Brooks); and [Doc. 137] (Hall); [Doc. 72] and [Doc. 168] (Martin) are DENIED. District Judge Phillips will decide whether he desires to choose an option besides the third option before or during trial, as he deems appropriate.
D. DISCLOSURE OF EXCULPATORY AND IMPEACHMENT MATERIAL (BROOKS, HALL, MARTIN AND MANNING)
1. Position of the Defendants
Defendants Brooks, Hall, Martin and Manning have requested the disclosure of certain evidence from the United States, all of which fall within the body of related caselaw represented by Brady v. Maryland, 373 U.S. 83 (1963) (exculpatory evidence); United States v. Agurs, 427 U.S. 97 (1976) (exculpatory evidence); and United States v. Bagley, 473 U.S. 667 (1985) (impeachment evidence).
Aaron Brooks seeks disclosure of material from the United States in his Brady Motion No. 1: The Deals [Doc. 147]; and Brady Motion No. 2: General Exculpatory and Incentives [Doc. 148]. Brooks asks the Court to Order the government disclose certain information about informants and potential witnesses. Brooks lists six categories of information in [Doc. 147] and two in [Doc. 148].
Hall requests information relating to persons cooperating with the prosecution efforts in her Motion for Disclosure of Snitches [Doc. 130]. Manning has asked for similar relief in his Motion to Require Government to Reveal Any Agreements With or ...