United States District Court, E.D. Tennessee, Greeneville Division
MEMORANDUM OPINION AND ORDER
Clifton L. Corker United States Magistrate Judge.
pretrial motions have been referred to the undersigned
pursuant to 28 U.S.C. 636(b) for disposition or a report and
recommendation regarding disposition by the District Court as
appropriate. Defendant, Matthew Martland, filed a Motion for
Severance of Defendants at Trial [Doc. 91]. The Government
responded [Doc. 111]; Martland submitted a reply [Doc. 122].
Court granted the motions of Lee Ferguson and Kerry Ferguson
to join the motion. [Docs. 95, 96, 100 & 101]. The Court
conducted a pretrial conference on November 21 and December
4, 2017. Assistant United States Attorneys David Gunn and
Timothy Harker appeared for the Government. The moving
Defendants and their counsel were present. The parties
declined to present evidence or testimony on the motion but
intended to submit late-filed materials in support of
severance, specifically law enforcement interview memos [Doc.
143, pp. 326-27, Doc. 142]. Defendants Lee Ferguson and Kerry
Ferguson orally withdrew their severance motions at the end
of the December 4, 2017, pretrial conference [Doc. 143, pp.
328-29]. Accordingly, their motions to sever will be denied
Background and Parties' Positions
are former employees of Wellco Enterprises, Inc., a now
defunct manufacturer and supplier of military and rugged
footwear that sold such footwear to the United States and the
public [Docs. 36, 81]. The Superseding Indictment alleges
Defendants conspired to commit and committed wire fraud,
defrauded the United States, and smuggled goods into the
United States by importing military-style boots that were
made in China. It also alleges deceptive marketing and sale
of the boots as “Made in the USA” and compliant
with the Trade Agreements Act of 1979, 19 U.S.C. § 2501
et seq. and the Berry Amendment, 10 U.S.C. § 2533a
moves the Court to sever his trial on the basis that he will
be prejudiced by the spillover effect of evidence that
incriminates his co-Defendants, the familial relationship
among several co-Defendants and mutually antagonistic
defenses. He also argues that severance is warranted to
ensure preservation of his rights under the Sixth Amendment
Confrontation Clause and applicable case law such as
Bruton v. United States, 391 U.S. 123, 88 S.Ct.
1620, 20 L.Ed.2d 476 (1968) and Crawford v.
Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177
Government responds that the Sixth Circuit favors joint
trials for several reasons, including promotion of economy
and justice and avoidance of inconsistent verdicts. The
Government asserts a risk of prejudice is low as juries are
presumed capable of parsing through the evidence and
considering each indictment count and defendant. It argues
severance is unnecessary because of a risk of spillover or
antagonistic defenses, the alleged conspiracy role was minor,
or the evidence against other defendants is more damaging.
Finally, the Government contends that statements made during
and in furtherance of a conspiracy do not raise Confrontation
Clause issues while issues arising from testimonial
statements can be addressed via redaction.
Rules of Criminal Procedure 8(b) and 14(a) govern joinder and
severance. Rule 8(b) provides for joinder: “The
indictment or information may charge 2 or more defendants 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. The defendants may be
charged in one or more counts together or separately. All
defendants need not be charged in each count.” Joinder
of a set of acts or transactions is appropriate when they are
“logically interrelated” or form “part of a
common scheme or plan.” United States v.
Beverly, 369 F.3d 516, 522 (6th Cir. 2004). Similarly,
“joint trials conserve [public] funds, diminish
inconvenience to witnesses and public authorities, and avoid
delays in bringing those accused of crime to trial.”
United States v. Lane, 474 U.S. 438, 449, 106 S.Ct.
725, 732, 88 L.Ed. 814 (1986) (citation omitted).
Additionally, “[j]oint trials generally serve the
interests of justice by avoiding inconsistent verdicts and
enabling more accurate assessment of relative
culpability.” Richardson v. March, 481 U.S.
200, 210, 107 S.Ct. 1702, 1709, 95 L.Ed.2d 176 (1987). Thus,
“[t]here is a preference in the federal system for
joint trials.” Zafiro v. United States, 506
U.S. 534, 537, 113 S.Ct. 933, 937, 122 L.Ed.2d 317 (1993).
United States v. Harris, 9 F.3d 493, 500 (6th Cir.
1993), the Sixth Circuit noted that, in general,
“persons indicted together should be tried
together.” To do otherwise would create problems for
the justice system since “[s]eparate trials produce
additional labor for judges and juries, which results from
the unnecessary repetition of evidence and trial
procedures.” United States v. Caver, 470 F.3d
220, 238 (6th Cir. 2006). Therefore, the “predominant
consideration is whether joinder would serve the goals of
trial economy and convenience; the primary purpose of this
kind of joinder is to ensure that a given transaction need
only be proved once.” United States v. Swift,
809 F.2d 320, 322 (6th Cir. 1987) (quotation omitted).
14(a) creates an exception to Rule 8(b): “[i]f joinder
of offenses or defendants in an indictment . . . appears to
prejudice a defendant or the government, the trial court may
. . . sever the defendants.” The rule “comes into
play if joinder was initially proper under Rule 8 but a joint
trial would prejudice one or more defendants.”
United States v. Lloyd, 10 F.3d 1197, 1215 (6th Cir.
1993). Ordinary prejudice that is inherent in any joint trial
does not mandate severance. It is only required when
“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; 113
S.Ct. 933. Thus, “a defendant seeking severance at
trial bears a strong burden and must demonstrate substantial,
undue, or compelling prejudice.” Caver, 470
F.3d at 238 (quoting United States v. Davis, 177
F.3d 552, 558 (6th Cir. 1999)).
14(a) severance motions fall under the “sound
discretion” of the district court. Zafiro, 506
U.S. at 541, 113 S.Ct. 933. Courts have typically exercised
discretion by refusing to grant severance on the grounds
that: (1) a defendant might have a better chance for
acquittal if tried separately, (2) the co-defendants had
different levels of culpability than the defendant seeking
severance, (3) there might be hostility or a conflict of
interest between the defendants, or (4) evidence may be
admissible against one defendant but not against the others.
See 1A Charles Alan Wright et al., Federal
Practice and Procedure, § 223 (4th ed. 2015);
United States v. Gardiner, 463 F.3d 445, 473 (6th
Cir.2006); Lloyd, 10 F.3d at 1215. Ultimately,
“[t]he risk of prejudice will vary with the facts in
each case, ” and “less drastic measures, such as
limiting instructions, often will suffice to cure any risk of
prejudice.” Zafiro, 506 U.S. at 539, 113 S.Ct.
933; see also Swift, 809 F.2d at 323 (“[A]
jury is presumed capable of sorting out evidence and
considering each count and each defendant separately”).
Determination Whether Severance is Warranted