The opinion of the court was delivered by: Paul L. Friedman United States District Judge
The Superseding Indictment filed in this case on March 8, 2011 charges 21 individuals with one count of conspiracy to commit bribery in violation of 18 U.S.C. § 371, and one count each of payment of a bribe to a public official in violation of 18 U.S.C. § 201(b)(1)(A). Each of the defendants is charged with paying a bribe to the Chairperson of the District of Columbia Taxicab Commission and of conspiring with others to give cash to him in return for his agreement to issue taxicab operator licenses to them. A number of the 21 defendants (in earlier iterations of the indictment, there were 37 defendants) have pled guilty to misdemeanor offenses and Suraphel Ayalew to a felony since the return of the Superseding Indictment on March 8, 2011.*fn1 The Court heard oral argument on numerous motions filed by counsel for the remaining 16 defendants during the entire day of May 6, 2011.
After a day of arguments, the most troubling questions for the Court
(1) whether to sever some of the defendants from others and how to
divide them up for purposes of trial; and (2) whether to make a
preliminary determination prior to trial of whether there is proof of
a conspiracy involving these defendants and to decide on the
admissibility of proffered co-conspirator statements.*fn2
The resolution of these two troubling issues would be easier
for the Court if it (and the defendants) had more information before
reaching its decisions; such information might be made available
through various procedural mechanisms discussed in this
No one argues that these 16 defendants were not properly joined together in the Superseding Indictment under Rule 8(b) of the Federal Rules of Criminal Procedure. Rather, the argument is that some of them should be severed under Rule 14(a) of the Rules, which provides that if joinder of defendants in an indictment "appears to prejudice a defendant . . . , the court may . . . sever the defendants' trials." FED. R. CRIM. P. 14(a). The Supreme Court has said that a court should grant a severance under Rule 14(a) "only if 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 v. United States, 506 U.S. 534, 539 (1993). The Court went on to say:
For example, evidence of a co-defendant's wrongdoing in some circumstances erroneously could lead a jury to conclude that a defendant was guilty. When many defendants are tried together in a complex case and they have markedly different degrees of culpability, this risk of prejudice is heightened. See Kotteakos v. United States, 328 U.S. 750, 774-775, 66 S. Ct. 1239, 1252-1253, 90 L. Ed. 1557 (1946). Evidence that is probative of a defendant's guilt but technically admissible only against a co-defendant also might present a risk of prejudice. See Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).
Zafiro v. United States, 506 U.S. at 539. Defendants invoke both the Kotteakos and Bruton examples discussed by the Supreme Court in Zafiro.
In this case, the primary argument defendants make in favor of severance is this:
(1) There is no evidence that any of the alleged co-conspirators knew any of the other alleged co-conspirators before they appeared at the Chairperson's office to complete applications and provide fingerprints on September 11, 18, or 20, 2009, respectively; (2) there is no evidence that any of the alleged co-conspirators knew the Chairperson prior to that day, which is problematic because (3) the alleged conspiracy began on September 3, 2009, the date Yitbarek Syume and Suraphel Ayalew met with the Chairperson unbeknownst to these defendants; (4) most of the alleged co-conspirators did not know and had not had any contact with the primary architects of the conspiracy, Mr. Syume and Mr. Ayalew, before September 11, 18, or 20; (4) the sealed envelope containing cash that each defendant handed to the Chairperson that day was provided to him by Mr. Syume or Mr. Ayalew just before each met with the Chairperson; (5) with such weak evidence against them, there would be a prejudicial spillover or transference of guilt if the moving defendants were tried together with those defendants who gave confessions or made post-arrest statements; and (6) it would be difficult for the jury to compartmentalize the evidence introduced against each individual defendant, particularly if such post-arrest statements implicated defendants other than the declarants but even, in the circumstances of this case, if they did not.*fn3
Before deciding the question of severance under Rule 14(a), the Court will invoke its prerogative under Rule 14(b) of the Federal Rules of Criminal Procedure, which provides: "Before ruling on a defendant's motion to sever, the court may order an attorney for the government to deliver to the court for in camera inspection any defendant's statement that the government intends to use as evidence." FED. R. CRIM. P. 14(b). The purpose of Rule 14(b) is to "address the problem of a co-defendant in a joint trial who made a pretrial incriminating statement." 1A CHARLES ALAN WRIGHT & ANDREW D. LEIPOLD, FEDERAL PRACTICE & PROCEDURE § 220 at 566 (2008). As the Advisory Committee Notes explain:
A defendant may be prejudiced by the admission in evidence against a co-defendant of a statement or confession made by that co-defendant. This prejudice cannot be dispelled by cross-examination if the co-defendant does not take the stand. Limiting instructions to the jury may not in fact erase the prejudice.
ADVISORY COMMITTEE NOTES ON 1966 AMENDMENT TO FED. R. CRIM. P. 14.Accordingly, Rule 14(b) "provide[s] a procedure whereby the issue of possible prejudice can be resolved on the motion for severance." Id.
During the hearing, the government suggested that Rule 14(b) applies only to a defendant's post-arrest statements. The plain language of the Rule, however, provides no such limitation. Although a post-arrest statement may be especially relevant to a motion to sever as a source of prejudice as well as a potential constitutional violation, see Bruton v. United States, 391 U.S. 123 (1968), the Court, in analyzing a motion under Rule 14, is entitled to review not only such post-arrest statements but rather "any defendant's statement that the government intends to use as evidence." FED. R. CRIM. P. 14(b); see also 1A CHARLES ALAN WRIGHT & ANDREW D. LEIPOLD, FEDERAL PRACTICE & PROCEDURE § 220 at 566 (2008) (Rule 14(b) addresses the problem of "a pretrial incriminating statement" by a co-defendant).
In the government's post-hearing filing, it argues that Rule 14(b) does not require the disclosure of co-conspirator statements - which presumably includes any statements that may have been made by the remaining co-defendants, the 21 co-defendants who have already pled guilty, and unindicted co-conspirators - because the prejudice that motivated the Advisory Committee is not implicated when co-conspirator statements will be admitted under Rule 801(d)(2)(E) of the Federal Rules of Evidence. See Government's Submission Regarding Scope of FED. R. CRIM. P. 14(b) at 1-2, May 9, 2011 [Dkt. No. 633]. The Court disagrees with respect to present and former co-defendants. The government may not exclude from the Court's inspection under Rule 14(b) a defendant's statement simply because the government believes that such statement qualifies as an admissible co-conspirator statement. The problem with the government's argument ...