The opinion of the court was delivered by: H. Bruce Guyton United States Magistrate Judge
JOINT MEMORANDUM AND ORDER
All pretrial motions in the above two cases have been referred to the undersigned Magistrate Judges 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 Courts for a hearing on the pending motions of the United States to join the trial of the defendants in the United States v. Jordan, at al., 3:07-CR-89,*fn1 case with those charged in United States v. Ramirez, et al, 3:07-CR-44.*fn2 Both cases are to be tried before District Court Judge Thomas W. Phillips. On July 16, 2008, Magistrate Judge H. Bruce Guyton conducted a hearing on the merits of the government's proposed joinder in conjunction with a hearing on the same issue conducted by Magistrate Judge C. Clifford Shirley, Jr. in the Ramirez case. Both Magistrate Judge Shirley and Magistrate Judge Guyton join in the ruling stated herein.
The prosecution of Melvin Skinner and Samuel Skinner began with their indictment on July 18, 2006, in United States v. Skinner, et al, 3:06-CR-100. The prosecution of Gray Jordan, Julia Newman, Sherry Farmer and William Jordan began with their indictment on August 1, 2006, designated as United States v. Jordan, 3:06-CR-102. On April 17, 2007, a grand jury issued an indictment in United States v. Ramirez, et al, 3:07-CR-44, commencing the prosecution of eight defendants in that case. On July 18, 2007, the government moved to consolidate United States v. Skinner, et al, 3:06-CR-100 and United States v. Jordan, 3:06-CR-102 into a single case, evidently after a number of defendants resolved their charges short of trial. On August 22, 2007, that request was granted over the objection of all six remaining defendants in both cases. United States v. Jordan, et al., 3:07-CR-89 is the resulting consolidated case. On April 23, 2008, the United States moved to join Jordan and Ramirez for trial. The Jordan case was then scheduled to proceed to trial on May 20, 2008. The trial in the Ramirez case was set to begin August 12, 2008. On April 30, 2008, Ramirez defendant Scott Willyard filed a Motion Opposing United States' Motion for Joint Trial. Ramirez [Doc. 268].
On April 28, 2008, the Jordan case came before this Court for the previously scheduled Pretrial Conference. At that time, the defendants requested time to file written responses to the Motion for Joint Trial, and the Court granted them 10 days in which to do so. No argument was had on that date, but a hearing was scheduled for May 6, 2008. The Court specifically asked counsel to address the prejudice to the Jordan defendants that may result from joinder and associated trial delay.
On May 5, 2008, defendants Melvin Skinner, Samuel Skinner and Gray Jordan filed responses. Respectively, Jordan [Doc. 77]; [Doc. 74]; and [Doc. 76]. The chambers of this Court notified counsel for Willyard that his opposition would be heard at the same time as the Jordan hearing on May 6, 2008.
On May 6, 2008, the Jordan defendants asked the Court to hold in abeyance any ruling on the proposed joinder until they had further opportunity to investigate and review the issues. The Court entered an Order [Doc. 84] granting that request and continuing the May 20, 2008, trial date to August 12, 2008, to permit adequate time for resolution of the government's motion. On May 20, 2008, the United States filed a Motion for Joinder and Renewed Request for Joint Trial [Doc. 92]. Nothing further was filed by the Jordan defendants or Willyard, now the sole defendant in the Ramirez case proceeding to trial.
At the joint hearing on July 16, 2008, Robert Vogel was present on behalf of Willyard. Ralph Harwell and Tracy Smith were present on behalf of their client Melvin Skinner. Michael McGovern was present on behalf of Samuel Skinner. Randall Reagan and Jeffrey Whitt were present on behalf of Gray Jordan. Mark Sallee participated by telephone on behalf of his client, William Jordan. Sherry Farmer was excused from participation in the hearing, having executed a plea agreement with the government.*fn3 Assistant United States Attorney Hugh Ward represented the government.
B. MOTIONS FOR JOINT TRIAL
1. Position of the Government
In its requests to join these two cases for trial, the government states that the sole remaining defendant for trial in the Ramirez case will be Willyard. Ramirez, [Doc. 262 at 1]. The government anticipates the proof in Willyard's trial will be almost the same as that to be presented in Jordan because both cases charge segments of the principle conspiracy in United States v. James Michael West, 3:06-CR-92 ("West"). Ramirez, [Doc. 262 at 2]. The government states that it has previously provided the same discovery materials to all defendants in the Ramirez and Jordan cases and that most of the materials connecting the cases have been part of the public record in court documents. [Doc. 72 at 2]. The United States lists the numerous plea agreements, with factual basis entered in the related cases and directs the Court's attention to the detailed facts provided in evidentiary hearings and government pleadings throughout Jordan, Ramirez and West. [Doc. 72 at 2-3]. The United States argues that the two cases should be tried together because these defendants could have been joined in a single indictment and it would be the most efficient use of the court's resources. [Doc. 72 at 3]; Ramirez, [Doc. 262 at 2].
In addition to the pretrial motions filed with the Court, at the July 16, 2008, the United States presented oral argument in support of a joint trial. The Jordan defendants having previously requested additional time to review the factual interrelationship of the two cases before proceeding at a hearing, the government asked the Court to now consider the facts available in the record to all defendants in support of a joint trial. AUSA Ward noted that as of this month, Samuel Skinner and Melvin Skinner have been charged for two years. Since that time, both this Court and Magistrate Judge Shirley have conducted several motions hearings and have received the testimony of many witnesses as to the facts of these two cases, to include alleged co-conspirators to both defendants Skinner and Willyard. Further, a number of defendants in these two cases have reached plea agreements with the United States which have included a factual basis filed with the District Court. AUSA Ward also stated that all defendants in the two cases have received affidavits executed in support of wiretap applications, which set forth the government's case in some detail. AUSA Ward also noted that Magistrate Judge Shirley has made factual findings in support of venue in the Eastern District of Tennessee for the prosecution of Willyard which describe the interrelation of that case with the overall conspiracy alleged to have been headed by James Michael West. The government also drew the Court's attention to proposed jury instructions filed by the prosecution in anticipation of an earlier trial date as well as two memoranda of law setting forth the government's position regarding reasonably anticipated evidentiary issues at trial, likewise filed as part of the public record available to all defendants. AUSA Ward stated that the government is ready to proceed to trial on August 13, 2008, and urged the Court to consider the public interest served by a speedy trial. The United States relied on Rule 13 of the Federal Rules of Criminal Procedure, which provides the basis for joinder of similar cases for trial.
2. Position of the Defendants
Willyard has filed an objection to the government's Motion for Joint Trial. Ramirez, [Doc. 262]. Willyard asserts substantial prejudice by joinder for trial with Jordan defendants, with a serious risk of compromise of specific two trial rights: first, the admission of otherwise inadmissible evidence; and second, an effective denial of right to confront and cross-examine witnesses against him. While it is not necessary to ...