The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge
This matter comes before this Court on motions by several defendants seeking severance of counts and/or co-defendants. The motions under consideration are of four types: motions by active defendants to sever; motions by inactive defendants to sever; motions to join severance motions of co-defendants; and motions for leave to late file severance motions.
First, the following severance motions have been filed by active defendants: defendant Gaskins filed a motion  on May 12, 2005 to sever defendant and counts; defendant Moore filed a motion  on May 20, 2005 to sever defendant and counts; defendant Eiland filed a motion  on May 31, 2005 to sever counts; defendant Thomas filed three motions*fn1 [271, 325, 420] to sever defendants and counts on May 20, 2005, July 16, 2005 and November 3, 2005, respectively; defendant Ingram filed a motion  on November 10, 2005 to sever his charges from that of co-defendant Eiland; defendant Plummer filed a motion  on November 10, 2005 for severance and a separate trial; defendant Butcher filed a motion  on November 10, 2005 to sever defendants and objection to current trial groupings; and defendant Bryant filed two motions [268, 430] for severance on May 20, 2005 and November 10, 2005, respectively.
Second, inactive defendants Ford and Holmes each filed a motion [272, 273] for severance on May 20, 2005. Third, defendants moved to join or adopt severance motions of co-defendants: defendant Bryant filed a motion  on May 20, 2005 for leave to join Eiland's response to the Government's case management proposal; defendant Thomas filed a motion  on May 22, 2005 to adopt and conform to motions to sever filed by co-defendant Bryant  and inactive defendant Simon*fn2 ; and defendant Butcher filed a motion  on November 10, 2005 to join in his co-defendants' severance motions. Finally, two defendants moved for leave to late file severance motions: defendant Eiland filed an unopposed motion  on May 29, 2005 for leave to file an untimely motion for severance; and defendant Thomas filed a motion  on July 17, 2005 for leave to late file a severance motion and opposition to the Government's case management position.
The United States opposed all active defendants' substantive severance motions in a consolidated response  filed on November 17, 2005; and defendant Eiland filed a reply  thereto on November 28, 2005.
Upon a thorough review of each party's filings, the applicable law and the entire record herein, this Court has determined that active defendants' motions [254, 262, 268, 271, 290, 325, 420, 424, 426, 427, 430] to sever co-defendants and/or counts shall be DENIED; inactive defendants' motions [272, 273] to sever defendant and counts shall be DENIED AS MOOT; defendants' motions [269, 275, 429] to join in the ripe motions of their co-defendants shall be GRANTED; and defendants' motions [288, 326] for leave to late file severance-related motions shall be GRANTED.
The defendants are charged in a 96-count Fourth Superseding Indictment ("Indictment"). All nine defendants currently pending trial are charged in Count One, Narcotics Conspiracy and in Count Two, RICO Conspiracy. Defendants Eiland and Miller are charged also in Count Three, Continuing Criminal Enterprise. At least one but not all remaining defendants are also charged with the following: possession with intent to distribute narcotics (Counts 8-9, 11-13, 15-16); distribution of narcotics (Count 10); use of a communications facility to facilitate possession with intent to distribute narcotics (Counts 17-76); interstate trafficking of stolen motor vehicles (Counts 77-89); conspiracy to commit murder (Count 90, 93); first degree murder as accessory after the fact (Count 91); accessory to murder after the fact (Count 92); murder conspiracy in aid of racketeering activity (Count 94); and firearms offenses (Counts 95-96).
This case was initially filed in August of 2004 and has named as many as 21 defendants. Over the past 15 months, several defendants have pled guilty, leaving only the nine remaining defendants awaiting trial. The Government has filed a total of four indictments. Some of defendants' objections have become obsolete as new indictments have been returned, new pleas entered, and new trial groupings created. In the interest of safeguarding defendants' fair trial rights, however, this Court shall consider each defendant's arguments as they apply to the current indictment and trial groups even if he has failed to update his motion.
The remaining nine defendants were separated into two groups for trial by Order of this Court on October 19, 2005. Security concerns necessitated some form of severance, and this Court created two trial groups based on the schedules of counsel and considerations of judicial economy. Trial one, set to commence on March 6, 2006, is comprised of defendants Miller, Thomas, Moore and Bryant. The second trial will involve the remaining five defendants, Eiland, Ingram, Gaskins, Butcher and Plummer, and is scheduled to begin on September 6, 2006.
Defendants argue that the counts and co-defendants have been improperly joined under Federal Rule of Criminal Procedure 8(b) (Bryant's Second Mot. 1-3; Eiland's Resp. ¶ 7; Gaskins' Mot. 1; Plummer's Mot. 1, 3; Simon's Mot. 2-4; Thomas' Second Mot. 1) and that, even if properly joined, they must be severed pursuant to Federal Rule of Criminal Procedure 14(a) (Bryant's Second Mot. 3-4; Eiland's Resp. ¶ 7; Gaskins' Mot. 1; Ingram's Mot. 1-5; Moore's Mot. ¶¶ 1, 16; Plummer's Mot. 1, 3; Simon's Mot. 5-9; Thomas' First Mot. 1-2; Thomas' Second Mot. 1-2). The basis of the severance motions is that the disparity of charges and/or evidence among co-defendants will result in unfair prejudice if they are presented in group trials. Jurors, defendants contend, will be unable to separate the violent and serious charges and evidence against some defendants from the case against those defendants who are charged with a lesser role in the alleged conspiracies.
The risk of prejudice, defendants argue, is particularly great when, as here, the seriousness and quantity of the alleged crimes and evidence varies greatly from one defendant to another (Bryant's Second Mot. 4; Butcher's Mot. 6-8, ¶¶ 2-19. Gaskins' Mem. P. & A. 4-6; Ingram's Mot. 3; Moore's Mot. 2; Plummer's Mot. ¶¶ 2-4; Thomas' First Mot. 5; Thomas' Second Mot. 6-10) and a conspiracy count is included in the indictment (Thomas' First Mot. 2-3; Thomas' Second Mot. 8). It is alleged that such charges, by their very nature, will result in prejudice if defendants remain joined for trial. (Gaskins' Mem. P. & A. 4-5; Thomas' First Mot. 4; Thomas' Second Mot. 7-8.)
Defendants acknowledge that joinder may be efficient (Butcher's Mot. 8-9; Thomas' First Mot. 2), but they insist that convenience must yield to the greater interest of protecting defendants' constitutional rights (Ingram's Mot. 2; Thomas' First Mot. 2). Defendants also argue that limiting instructions, sometimes used to cure the risk of prejudice, are insufficient in this case. (Bryant's Second Mot. 4; Gaskins' Mem. P. & A. 8; Moore's Mot. 2; Simon's Mot. 7; Thomas' First Mot. 3.) Finally, several defendants question the inclusion of the stolen vehicle trafficking charges in the present indictment, arguing that they have not been shown to be related to the other conspiracies. (Eiland's Mot. ¶¶ 1-10; Gaskins' Mem. P. & A. 7-8; Moore's Mot. ¶¶ 12-13; Simon's Mot. 3.) The presumption that joinder is proper cannot be supported, defendant Eiland maintains, without indication of how the grand jury must have been guided to find a connection. (Eiland's Resp. ¶¶ 5-6.)
The United States strongly opposes severance. The indictment charges that defendants were involved, to varying degrees, in a wide-ranging criminal enterprise that engaged in drug possession and distribution, vehicle theft and other crimes. (Govt.'s Resp. ¶ 2.) The Government notes that joinder is presumptively appropriate in conspiracy trials because the case against each defendant will likely rest on the same evidence (id. at 5); further severance, therefore, would result in a waste of judicial resources (id. at 6).
The Government also argues that severance is inappropriate because defendants have failed to show that substantial prejudice will result from the current trial groupings. Namely, defendants have not demonstrated that joint trials will prevent a jury from making reliable judgments about each defendant's guilt or innocence. (Id. at 11.) While the indictment reflects that some defendants were less active in the criminal enterprise, each nonetheless was a full participant and each was connected to the organization's leader or key members. (Id. at 11-12.)
Defendants' claims raise two issues: first, whether the defendants were properly joined in the first place; and second, even if properly joined, whether they now should be severed. These questions shall be resolved under the ...