United States District Court, W.D. Arkansas, Texarkana Division
F. Barnes, United States District Judge.
the Court is Defendant's Motion for Severance. ECF No.
121. The Government has responded. ECF No. 127. The Court
finds this matter ripe for consideration.
January 23, 2018, Defendant was named in eight counts of a
twenty-five count Second Superseding Indictment (hereinafter
the “Indictment”) that also named as
Co-Defendants Fredrico Bradley (hereinafter
“Bradley”), James Manuel (hereinafter
“Manuel”), Christopher Manning (hereinafter
“Manning”), and Ricardo Walker. ECF No. 77. On
May 17, 2018, Bradley entered a plea agreement in which he
plead guilty to Count One of the Indictment and admitted to
“knowingly, intentionally, and unlawfully combin[ing],
conspir[ing], confederating, and agree[ing] with
[co-Defendants] James Manuel, Christopher Manning, and others
to distribute” various controlled
substances. No. 4:17-cr-40014-1, ECF No. 104, ¶
5(a). Defendant now moves for severance.
Rule of Criminal Procedure (8)(b) governs the joinder of
defendants and states that:
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.
even if joinder is proper under Rule 8(b), Federal Rule of
Criminal Procedure 14(a) provides that “[i]f the
joinder of . . . defendants . . . for trial appears to
prejudice a defendant or the government, the court may order
separate trials of counts, sever the defendants' trials,
or provide any other relief that justice requires.” The
Eighth Circuit has observed that “the decision to grant
severance to a defendant from a joint trial is within the
district court's discretion.” United States v.
Young, 753 F.3d 757, 778 (8th Cir. 2014) (citing
United States v. Ortiz, 315 F.3d 873, 898 (8th Cir.
2002)). A defendant who seeks severance carries a heavy
burden of showing that severance is warranted. Id.
at 777-78 (citing United States v. Sandstrom, 594
F.3d 634, 644 (8th Cir. 2010)). “[W]here a defendant
demonstrates that a joint trial will prejudice his right to a
fair trial, the court must sever the trials.”
United States v. Engleman, 648 F.2d 473, 480-81 (8th
Cir. 1981) (citation omitted). Furthermore, the Court
“may sever trials if it appears that compelling or
severe prejudice will result to the defendant.”
Young, 753 F.3d at 777 (citing United States v.
Pherigo, 327 F.3d 690, 693 (8th Cir.2003)).
“Prejudice is ‘some appreciable chance that
defendants would not have been convicted had the separate
trial they wanted been granted.'” Id.
(quoting United States v. Sandstrom, 594 F.3d 634,
644 (8th Cir. 2010) (quotation and citation omitted)).
Eighth Circuit has stated that “[d]efendants may show
real prejudice to their right to a fair trial by
demonstrating that their defense is irreconcilable with a
codefendant's defense, or the jury will be unable to
properly compartmentalize the evidence as it relates to the
separate defendants. Id. (citing United States
v. Mueller, 661 F.3d 338, 347-48 (8th Cir. 2011),
cert. denied, 566 U.S. 955 (2012)). Accordingly, a
“defendant must demonstrate more than a higher
probability of acquittal had severance been granted.”
Id. (citing Zafiro v. United States, 506
U.S. 534, 540 (1993)). “[S]evere prejudice may occur
when evidence against one defendant is admitted despite it
not being admissible had a defendant been tried alone.”
Id. at 778 (citing Zafiro, 506 U.S. at
“[g]enerally, persons charged in a conspiracy should be
tried together, especially when proof of the charges against
the defendants is based upon the same evidence and
acts.” Id. (quoting Mueller, 661 F.3d
at 347 (quotation and citation omitted)). “A joint
trial is preferable because it ‘gives the jury the best
perspective on all of the evidence and, therefore, increases
the likelihood of a correct outcome.'” Id.
(quoting Pherigo, 327 F.3d at 693 (quotation and
citation omitted)). Finally, appropriate limiting
instructions may adequately address any risk of prejudice.
See Sandstrom, 594 F.3d at 644 (noting that the
government had cited “the Supreme Court and this
court's recognition that the risk of prejudice from a
joint trial is best resolved through jury
instructions[.]”); see also Zafiro, 506 U.S.
at 540 (“When the risk of prejudice is high, a district
court is more likely to determine that separate trials are
necessary, but, . . . less drastic measures, such as limiting
instructions, often will suffice to cure any risk of
instant motion, Defendant moves the Court, pursuant to
Federal Rule of Criminal Procedure 14(a), for a separate
trial. Defendant argues that a joint trial would
be unfairly prejudicial to him. Defendant bases his arguments
for severance on two contentions: (1) that allowing a joint
trial will result in evidence that does not pertain to
Defendant being used against him and (2) that allowing a
joint trial will result in Bradley's testimony and
admission of guilt being used against Defendant although
Bradley has only admitted to conspiring with Co-Defendants
Manuel, Manning, and “others.”
response, the Government argues that Defendant has failed to
carry his burden of showing that severance is justified. The
Government states that it has informed the remaining
Defendants of Bradley's “decision to cooperate and
testify on behalf of the United States and has provided each
a summary of Bradley's anticipated testimony.” ECF
No. 127, p. 1. The Government contends that severance is not
required simply because evidence that is admissible and
relevant to co-defendants may be damaging to ...