United States District Court, District of Columbia
PAUL L. FRIEDMAN, UNITED STATES DISTRICT JUDGE
This matter is before the Court on the motions of defendants Rashard Grant, Christopher Ford, and Theodore Sanders to sever their trials from the trials of their co-defendants. Defendants Anthony Hager, Andre Leach, and Rashard Grant adopt one or more of the motions. The government opposes the motions. Upon consideration of the parties’ written submissions, the oral argument at the pretrial motions hearing held on December 11 and 16, 2015, the relevant case law, and the entire record in this case, the Court will deny the motions.
The grand jury returned an indictment charging all seven defendants with one count of participating in a conspiracy to distribute phencyclidine (“PCP”), in violation of 21 U.S.C. § 846. Superseding Indictment at 1-4. The superseding indictment also charges Simmons, Fenwick, and Leach with one or more counts of possession with intent to distribute PCP (“PWID PCP”), in violation of 21 U.S.C. § 841(a)(1); charges Simmons and Fenwick with one count each of using a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); and charges Simmons with one count of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Superseding Indictment at 4-6.
Grant argues that the indictment improperly joins him with his co-defendants under Rule 8 of the Federal Rules of Criminal Procedure because (1) the government fails to allege that he participated in the “same act or transactions” as his co-defendants, Grant Mot. at 2-3 (quoting Fed. R. Crim. P. 8(b)), and (2) no evidence against Grant’s co-defendants is “mutually admissible” against him. Id. at 4-5.
Several defendants raise arguments that severance is necessary to safeguard their trial rights. First, Ford argues that severing his trial is necessary to preserve his right to present a defense because he needs the testimony of his co-defendant Simmons. Ford Mot. at 4. Ford quotes an unofficial transcript from the Court’s status conference of May 4, 2015, at which Simmons made a statement in open court that he “never bought PCP from Mr. Ford, ” only marijuana. Id. Ford argues that Simmons’s statement establishes a prima facie case for severance under the D.C. Circuit’s test set forth in United States v. Ford, 870 F.2d 729 (D.C. Cir. 1989). Second, Grant argues that his Sixth Amendment right to confrontation will be violated when the government introduces “codefendant . . . statements over the phone which indirectly implicate” him. Grant Mot. at 7. Grant contends that the government’s use of any statements inculpatory of him made by his co-defendants during wiretapped conversations violates Bruton v. United States, 391 U.S. 123 (1968). Grant Mot. at 7-8. Third, Sanders, Grant, and Hager contend (for the first time at the December 11, 2015 motions hearing) that a joint trial would violate their Sixth Amendment constitutional right to a speedy trial because they are ready to proceed to trial more quickly than the schedules of their co-defendants’ attorneys permit. 12/11/15 Tr. at 174-75, 178-79, 182.
Finally, Grant, Ford, and Sanders all argue that allowing the jury to hear the evidence against the other defendants at a joint trial will create spillover prejudice “by imputing to [them] guilt based on the activity of the other” defendants. Sanders Mot. at 3; see also Grant Mot. at 2, 5; Ford Mot. at 3. They state that Rule 14 of the Federal Rules of Criminal Procedure requires severance of each of their trials from that of their co-defendants because the evidence against them individually is de minimis, see Ford Mot. at 3, while the evidence against their co-defendants is substantial. See Grant Mot. at 1-2, 5; Ford Mot. at 3-4; Sanders Mot. at 3-4. As support, Grant claims that only 10 of the 624 overt acts listed in the Bill of Particulars involve him, Grant Mot. at 1-2; Sanders claims that he appears on only 11 of the several thousand conversations that the government recorded during sixty days of wiretapping Simmons’s phone, Sanders Mot. at 1; and Ford claims that “there is not one call between Simmons and [himself] that discuses ‘PCP’ per se or any other evidence of [him] actually meeting and providing PCP to Simmons.” Ford Reply at 2.
The government responds to defendant’s arguments by detailing its evidence that Grant, Ford, Sanders, and Hager are all a part of the same conspiracy to distribute PCP. Opp. at 16-33. With respect to Grant, Sanders, and Hager, the government cites multiple wiretap conversations where they discuss PCP distribution and their efforts to move firearms for Simmons. Id. at 17-18, 20-23. The government alleges that law enforcement corroborated these conversations when it executed a search warrant at Simmons’s residence and discovered a firearm in a lunch bag, the exact location discussed on the wiretap. Id. at 21-22. With respect to Ford, the government cites 18 wiretapped conversations between Simmons and Ford discussing PCP distribution and details the contents of several such conversations. Id. at 16-19. The government alleges that law enforcement corroborated these conversations by “actually observ[ing]” Ford and Simmons meet “[o]n numerous occasions.” Id. at 17.
On these facts, the government contends that the defendants are properly joined in the same indictment under Rule 8(b) because “the government expects essentially the same evidence to be presented” against each defendant. Opp. at 24. It also argues that defendants have failed to demonstrate any “compelling” spillover prejudice that would meet their “heavy burden” to show that severance is appropriate in a conspiracy case. Id. at 25-27. Finally, the government takes the position that proper jury instructions would cure any potential spillover prejudice. Id. at. 26-27.
With respect to Ford’s asserted need for Simmons’s testimony in order to present his defense, the government responds that Simmons’s testimony “would be incredible” and of “insignificant probative value” based on other contradictory wiretap evidence. Id. at 28-29. The government also states that Simmons “retains a Fifth Amendment [privilege] not to testify” at Ford’s trial even if the Court severed Ford and scheduled Ford’s trial first. Id. at 29.
Following full briefing on the motions to sever, the Court inquired of Simmons at the December 16, 2015 motions hearing whether it is his intention to testify at Ford’s trial if Ford were tried first and he were tried later, keeping in mind that if there were a joint trial he could choose to testify or not. Simmons answered “yes, ” indicating that he would testify even though everything he said at Ford’s trial could be used against him at his later trial. The Court also asked Simmons if he would testify at a joint trial where he, Ford, and the other co-defendants were tried together, and Simmons answered “yes.”
Defendants raise five bases for severance: (1) misjoinder under Rule 8(b); (2) Ford’s asserted need for Simmons’s testimony; (3) Sixth Amendment Confrontation Clause issues stemming from Grant’s inability to cross-examine non-testifying co-defendants; ...