The opinion of the court was delivered by: H. Bruce Guyton 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 is before the Court upon Defendant Julia Newman's Motion for Severance [Doc. 40]. The Court conducted a hearing on the merits of this motion December 20, 2007. Julia Newman was present with her counsel, Herbert Moncier. The government was represented by Assistant United States Attorney Hugh Ward. The Court took this matter under advisement on December 21, 2007.
Newman asks for relief under Federal Rules of Criminal Procedure, Rule 14 from prejudicial joinder with two defendants, Melvin Skinner and Samuel Skinner. These two defendants became part of the case charging Newman when the two cases were combined into a single prosecution. Newman argues that she is prejudiced by a joint trial, setting forth the following description of the forms of prejudice wrought by a trial with the Skinners.
Before the joinder there were no physical drugs to produce as evidence at the trial against her. Newman argues that prior to the joinder the charge against her was only a historical conspiracy, but with the addition of Melvin Skinner and Samuel Skinner, the government is anticipated to introduce the 700 lbs of marijuana seized from the Skinners.
Newman next argues that before joinder with the Skinners, there were no guns in Newman's case. Newman asserts that the government seized guns from the Skinners when they were arrested and joinder will mean these guns are now to be used at Newman's trial.
Further, Newman argues that she does not know Melvin Skinner or Samuel Skinner and they do not know her. Newman argues that before the cases were "consolidated," the Skinners were set to go to trial before Newman. Newman states that she planned to call the Skinners as witnesses at her (later) trial so they could testify that they do not know Newman and that whatever they were doing had nothing to do with Newman.
In addition to joinder with the Skinners, the new indictment expands the conspiracy by the three days necessary to encompass the Skinners' arrest which expands the whole conspiracy to include guns found on co-defendant Sherry Farmer during that time period.
Newman also argues that the "hub" of the conspiracy was James Michael West, who, as a matter of law, withdrew from the conspiracy at the time of his arrest on July 17, 2006, because at that time he began cooperating with the government. Without James West, Newman continues, the conspiracy between the others ended and any alleged link with Newman was severed at the end of the conspiracy. Because there was no more conspiracy, the guns found on Sherry Farmer when she was arrested on August 2, 2006, are not connected to Newman, aside from the joinder.
Newman argues that the government had all the information about all the alleged criminal activity at the time the prosecution elected to seek separate indictments. The instant joinder creates a prejudice because it allows the government to use evidence at the trial that would otherwise be inadmissible at a separate trial. Newman seeks two potential remedies. First, severance of Newman from the other defendants, or at least from the Skinners. Second, that the Court require the government to demonstrate that it presented new evidence to the Grand Jury in support of the change making Newman was part of a conspiracy with the Skinners or that she was involved in the conspiracy for the three extra days added.
The United States responds that Newman is, in fact, part of the same conspiracy as the other defendants in this case and relates the contents of a proposed Factual Basis presented by AUSA Ward to Newman's counsel on October 13, 2006, and then detailing the factual allegations against each defendant by named paragraphs. The United States also argues that it further notified Newman of the conspiracy connections alleged by the prosecution in 3:06-CR-102 [Doc. 196], filed as part of the litigation about the "consolidated" indictment, and quotes the language of that filing. Further, the prosecution asserts that on October 4, 2007, the government response to a motion filed by Melvin Skinner provided details of the conspiracy.
As to severance specifically, the United States relies on United States v. Cody, 498 F.3d 582 (6th Cir., filed August 16, 2007). The government argues that Cody restated the rule that controls here: that Rule 52(a) allows reversal for prejudicial joinder only if it serves to, "affect substantial rights." Any error from misjoinder can be made "harmless"by a limiting instruction to the jury. Joinder is unlikely to be deemed prejudicial where the evidence lends itself to compartmentalization by the jury, as here. The government argues that the Sixth Circuit often, as in ...