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U.S. v. EDELIN

October 11, 2000

UNITED STATES OF AMERICA,
V.
TOMMY EDELIN, EARL EDELIN, SHELTON MARBURY, HENRY JOHNSON, MARWIN MOSLEY, BRYAN BOSTICK, DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge.

  MEMORANDUM OPINION
The remaining six defendants in this case are charged with the following: conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, fifty grams or more of cocaine base, and one kilogram or more of heroin; continuing criminal enterprise; conspiracy to participate in a racketeer influenced corrupt organization; first degree murder while armed; continuing criminal enterprise murder; assault with intent to murder while armed; assault with a dangerous weapon; use of a firearm; possession of a firearm during a crime of violence; distribution of five grams or more of cocaine base; possession with intent to distribute cocaine base; unlawful use of a communication facility; possession with intent to distribute one kilogram or more of heroin; and possession with intent to distribute five kilograms or more of cocaine. Additionally, all of the six defendants are charged with continuing criminal enterprise murder. The Attorney General has authorized seeking the death penalty against one defendant, Tommy Edelin. Although the other defendants are death penalty eligible, prosecutorial discretion has been exercised to not seek death for these defendants. The five non-capital defendants are: Earl Edelin, Shelton Marbury, Henry Johnson, Marwin Mosley, and Bryan Bostick.

Joinder

Several of the defendants have raised the issue of misjoinder under Rule 8 of the Federal Rules of Criminal Procedure. Others have assumed arguendo that joinder of offenses and defendants is appropriate and have asked for severance under Rule 14 of the Federal Rules of Criminal Procedure. In either case, the Court believes it is expeditious to determine whether the indictment in this case includes a valid joinder of offenses and defendants. Rule 8 reads as follows:
"(a) Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
(b) Joinder of Defendants. Two or more defendants may be charged in the same indictment or information 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. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count."Federal Rules of Criminal Procedure 8.
In this case, the offenses that are charged in the superceding indictment are based on the same alleged "act or transaction" or on parts of a common scheme or transactions. The conspiracy charge is a common thread that ties all of the defendants and charges together. See United States v. Morales, 868 F.2d 1562, 1568-69 (11th Cir. 1989) ("Joinder of multiple defendants is proper whenever there is a `common thread' between the actions charged against them."); United States v. Saget, 991 F.2d 702, 707 (11th Cir. 1993). "Rule 8(b) . . . makes clear that joinder of the defendants for trial is proper where the indictment charges multiple defendants with a single conspiracy and also charges some of the defendants with substantive counts arising out of the conspiracy." United States v. Simon, 839 F.2d 1461, 1472 (11th Cir. 1988). Charges based on a "series of acts or transactions" connected together into a common scheme or plan are properly joined under Rule 8(b). United States v. Brown, 823 F.2d 591, 598 (D.C. Cir. 1987) (quoting United States v. Perry, 731 F.2d 985, 990 (D.C. Cir. 1984). This "common thread" or "logical relationship" between the acts or transactions provides a valid basis for joinder in this case. United States v. Spriggs, 102 F.3d 1245, 1255 (D.C. Cir. 1996), cert. denied, 522 U.S. 831 (1997).
Defendant Johnson recognizes in his Memorandum of Points and Authorities that joinder of defendants is proper on the face of the indictment. Johnson Memorandum at 5. The Court agrees that joinder of defendants is proper at this time. "The general rule is that defendants who are jointly indicted should be tried together, and this rule applies with particular force to conspiracy cases." United States v. Walker, 720 F.2d 1527, 1533 (11th Cir. 1983), cert. denied 465 U.S. 1108 (1984); United States v. Cassano, 132 F.3d 646, 650-51 (11th Cir 1998).
Joinder of conspiracy charges and defendants is preferred in this Circuit and in other Circuits. "Joint trials are favored in RICO cases . . . `where . . . the respective charges require presentation of much the same evidence, testimony of the same witnesses, and involve two defendants who are charged, inter alia, with participating in the same illegal acts.'" United States v. Richardson, 167 F.3d 621, 624 (D.C. Cir. 1999), quoting United States v. Ford, 870 F.2d 729, 731 (D.C. Cir. 1989). "The preference for a joint trial of multiple defendants in conspiracy cases reflects the sound policy of joinder where charges may be proven with substantially the same evidence. United States v. Aiken, 76 F. Supp.2d 1346, 1352 (S.D.Fla. 1999), citing United States v. Dorsey, 819 F.2d 1055, 1058 (11th Cir. 1987). The preference for joinder is even stronger in conspiracy cases. "Rarely, if ever, will it be improper for co-conspirators to be tried together." United States v. Jackson, 64 F.3d 1213, 1217 (8th Cir. 1995) (citations omitted).
Joint trials are preferred for a variety of reasons, including judicial efficiency and consistent verdicts. Buchanan v. Kentucky, 483 U.S. 402, 418 (1987) ("Underlying the Commonwealth's interest in a joint trial is a related interest in promoting the reliability and consistency of its judicial process, an interest that may benefit the noncapital defendant as well. In joint trials, the jury obtains a more complete view of all the acts underlying the charges than would be possible in separate trials. From such a perspective, it may be able to arrive more reliably at its conclusions regarding the guilt or innocence of a particular defendant and to assign fairly the respective responsibilities of each defendant in sentencing.).
The Court recognizes that it has a continuing duty to monitor the appropriateness of joinder of counts and defendants. Schaffer v. United States, 362 U.S. 511, 516 (1960). The Court also recognizes that it must continue to be vigilant for prejudice arising under Rule 14 of the Federal Rules of Criminal Procedure. Id.

Defendant Johnson's Motion to Sever Counts

Defendant Johnson makes the motion that the firearms counts and crimes of violence are misjoined. For the reasons stated above in the section regarding proper joinder under Rule 8 of the Federal Rules of Criminal Procedure, the Court disagrees with defendant Johnson. His statements regarding misjoinder are conclusory, he provides no analysis or argument as to why the firearms counts and crimes of violence are not properly within the scope of the conspiracy charges.

Severance

Defendants Earl Edelin, Shelton Marbury, Henry Johnson, Marwin Mosley, and Bryan Bostick have all requested severance of capital defendant Tommy Edelin. Defendant Tommy Edelin has in turn requested severance from the non-capital defendants. Defendant Mosley has requested the withdrawal of his Motion to Sever Co-defendant, but because Defendant Johnson has adopted Defendant Mosley's Motion to Sever, the Court will address the points made in that motion below. Although Rule 8 joinder is appropriate in this case, the Court must also consider whether the risk of prejudice stemming from a joint trial is so high as to warrant severance under Rule 14. Rule 14 provides the basis for the majority of the requests for severance by the defendants in this case. The relevant portion of Rule 14 of the Federal Rules of Criminal Procedure reads as follows:
"If it appears that a defendant or the government is prejudiced by a joinder of offences or defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires."Federal Rules of Criminal Procedure 14.

Although Rule 14 allows for severance of properly joined defendants, the defendant requesting the severance bears the heavy burden of showing that joinder would violate his constitutional fair trial rights. United States v. Spitler, 800 F.2d 1267, 1271 (4th Cir. 1986), United States v. Carpentier, 689 F.2d 21, 27 (2d Cir. 1982), cert. denied, 459 U.S. 1108 (1983). The Supreme Court has defined "prejudice" in this context to be a "serious risk that a joint trial would compromise a specific trail right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro v. United States, 506 U.S. 534, 539 (1993).

While court must carefully evaluate the risk of prejudice in joint trials, there is no constitutional requirement that there be a guilt phase severance of properly joined defendants and offenses. Zafiro, 506 U.S. at 537; United States v. Salameh, 152 F.3d 88 (2nd Cir. 1998). Trial courts must always be mindful of the competing interests at stake. See United States v. Aiken, 76 F. Supp.2d 1346 (S.D.Fla. 1999) (recognizing the courts' duty to balance judicial economy and efficiency with the potential prejudice a defendant faces in a joint trial).
When severance is considered, it is entrusted to the sound discretion of the trial court. U.S. v. Vaccaro, 816 F.2d 443 (9th Cir. 1987), cert. denied, 484 U.S. 928 (1987), abrogated on other grounds, Huddleston v. U.S., 485 U.S. 681 (1987). The defendant who is requesting severance must show that a joint trial would violate his fair trial rights; if there is no showing ...

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