Opinion
Case No. 8:09-cr-352-T-33MAP.
March 5, 2010
ORDER
This matter is before the Court pursuant to various severance motions in this case. (Doc. ## 53, 56, and 59). The Government filed a response in opposition to the severance motions. (Doc. # 60). For the reasons that follow, the Court declines to conduct a separate trial for Defendant Tracey Bane and will try the three Defendants jointly.
I. Background
II. Severance
United States v. Walser3 F.3d 380385Id. United States v. Schlei 122 F.3d 944984
In addition, the Eleventh Circuit has noted, "This Court is reluctant to reverse a district court's denial of severance, particularly in conspiracy cases, as generally persons who are charged together should also be tried together." United States v. Knowles, 66 F.3d 1146, 1158 (11th Cir. 1995) (citations omitted).
The Court may order separate trials of defendants when necessary pursuant to Rule 14(a), Fed.R.Civ.P., which states:
If the joinder of offenses or defendants in an indictment, information, or a consolidation 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.
In deciding a motion for severance, the Court "must balance the right of a defendant to a fair trial against the public's interest in efficient and economic administration of justice."United States v. Zielie, 734 F.2d 1447, 1464 (11th Cir. 1984). More specifically, the Eleventh Circuit has interpreted Rule 14, Fed.R.Crim.P., to require a defendant seeking severance to demonstrate specific and compelling prejudice arising from a joint trial. United States v. Leavitt, 878 F.2d 1329, 1340 (11th Cir. 1989). The level of prejudice claimed by the party seeking severance must amount to "fundamental unfairness." Knowles, 66 F.3d at 1159.
As noted above, a defendant can show compelling prejudice by demonstrating that the jury would not be able to separate the evidence relevant to each defendant. Id. The Eleventh Circuit has also described this test as follows: "The test for assessing compelling prejudice is whether, under all of the circumstances of a particular case, it is within the capacity of jurors to follow a court's limiting instructions and appraise the independent evidence against a defendant solely on that defendant's own acts, statements, and conduct in relation to the allegations contained in the indictment and render and fair and impartial verdict." Walser, 3 F.3d at 386-387.
Further, instructions to the jury which require the jury to consider the evidence separately as to each defendant have been held to be adequate safeguards against prejudice due to joinder.United States v. Kopituk, 690 F.2d 1289, 1320 (11th Cir. 1982). It should be further noted that jurors are presumed to follow the instructions given by the trial judge. United States v. Shenberg, 89 F.3d 1461, 1472 (11th Cir. 1996).
In this case, Defendants have not met their burden of establishing compelling prejudice to justify severance of Tracey Bane.
III. Analysis
In Zafiro v. United States, 506 U.S. 534, 540 (1993), the Court remarked that Rule 14 of the Federal Rules of Criminal Procedure is "designed to promote economy and efficiency and to avoid a multiplicity of trials, so long as these objectives can be achieved without substantial prejudice to the right of the defendants to a fair trial." Here, Defendants seek severance of Tracey Bane contending that (1) her defense is antagonistic to the defenses of her co-defendants; (2) her statements incriminate her co-defendants, but she will not take the stand, implicating the Bruton rule; and (3) she will offer Rule 404(b), Fed.R.Evid., "bad character" evidence against Ben Bane, her co-defendant.
1. Antagonistic Defenses
As stated in Zafiro, "mutually antagonistic defenses are not prejudicial per se. . . . Rule 14 does not require severance even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district court's sound discretion." 506 U.S. at 538-539.
On this issue, the Eleventh Circuit has held, "In order to compel severance, the defenses of co-defendants must be more than merely antagonistic, they must be antagonistic to the point of being mutually exclusive. Put another way, defenses can only be found antagonistic if the jury, in order to believe the core testimony offered on behalf of one defendant, must necessarily disbelieve the testimony offered on behalf of his co-defendant."Knowles, 66 F.3d at 1159 (internal quotation marks omitted).
Ben Bane argues, "Tracey Bane is expected to present the defense that any actions she took were at the specific direction of Mr. Bane. Mr. Bane will present the defense that he was unaware of any wrongdoing by any of his companies' employees. These defenses are mutually exclusive." (Doc. # 59 at 2). Similarly, Tracey Bane asserts that she "cannot receive a fair trial in a joint trial with Ben Bane, since it is obvious that Ben Bane will exculpate himself at trial and point a finger of guilt at Tracey Bane." (Doc. # 56 at 2).
The Court has given serious consideration to the allegations of antagonistic defenses presented in this case. However, the Court does not find that the conflict between the defense theories of Ben Bane and Tracey Bane warrants severance. "Because joint participants in a scheme often will point the finger at each other to deflect guilt from themselves or will attempt to lessen the importance of their role, a certain amount of conflict among defendants is inherent in most multi-defendant trials. In order to justify severance, however, joined defendants must show that the conflict is of such magnitude that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty." United States v. Smith, 44 F.3d 1259, 1266-1267 (4th Cir. 1995) (severance was not required although co-defendants claimed that one defendant led the criminal enterprise, and the other defendants had been the victims of his criminal influence).
Thus, severance on the basis of antagonistic defenses is not warranted. However, should mutually exclusive defenses develop at trial, "the best solution in such situations is not severance, but for the trial judge to issue proper limiting instructions." United States v. Blankenship, 382 F.3d 1110, 1125 n. 27 (11th Cir. 2004). Thus, severance on the basis of antagonistic defenses is not warranted.
2. Bruton Evidence
Ben Bane argues, "Tracey Bane gave several statements to government agents in which she incriminated herself and [Ben] Bane. Because Tracey Bane will not testify at trial, any attempt to admit these statements will violate [Ben] Bane's Sixth Amendment right to confrontation." (Doc. # 59 at 2). Tracey Bane asserts that she "cannot take the stand in her own defense at her trial because of her mental and emotional problems. . . . Tracey Bane simply cannot testify to defend herself." (Doc. # 56 at 2, 5).
The Court notes that the severance motions are based upon several looming assumptions. First, the Court is not convinced that Tracey Bane "simply cannot" take the stand. As an accused, she has the right and the opportunity to defend herself on the witness stand. While she has initially stated that she cannot take the stand, she may later determine that offering trial testimony is a prudent choice for her defense. In addition, Defendants presuppose in their severance motions that the Government will offer Tracey Bane's statements at trial. Those statements are subject to multiple suppression motions.
However, even assuming that Defendants' assumptions are true — that the Government will introduce Tracey Bane's incriminating statements and Tracey Bane will not testify, the Court can avoid a violation of the Bruton rule. The Government can prepare a redacted version of Tracey Bane's statements to eliminate references to her co-defendants. In addition, the Court can craft an appropriate limiting instruction. See United States v. Thompson, 422 F.3d 1285, 1293 (11th Cir. 2005) ("`the Confrontation Clause is not violated by the admission of a non-testifying co-defendant's confession with a proper limiting instruction when the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence.'" (citingRichardson v. Marsh, 481 U.S. 200, 211 (1987)).
In United States v. Bruton, 391 U.S. 123 (1968), the Supreme Court held that the Confrontation Clause of the Sixth Amendment was violated when the confession of one defendant, implicating another defendant, was presented to the jury at the defendants' joint trial. The confessing defendant did not testify and, therefore, was not subject to cross examination. The Court held that this was a violation even though the trial court gave a limiting instruction that the confession was to be considered as evidence only against the confessing defendant: "There are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitation of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a co-defendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial." Id. at 135-136.
This Court will ensure that the Bruton rule is not violated during the trial of this case and, if requested, will instruct the jury that a defendant's post-arrest statement "should not be considered in any way whatever as evidence with respect to any other defendant on trial." Thompson, 422 F.3d at 1293.
In sum, severance is not required due to Defendants' speculations regarding a potential violation of the Bruton rule.
3. Bad Character Evidence
Ben Bane suggests that Tracey Bane will offer Rule 404(b), Fed.R.Evid., evidence of "bad character" against him. He specifically contends that Tracey Bane "will claim that she feared [Ben] Bane and acted at his direction because she was afraid he would harm her, her husband Gregory Bane, and her daughter." (Doc. # 59 at 3). Ben Bane also asserts that "extraneous bad character evidence would have no proper purpose, and thus would be inadmissible." (Doc. # 59 at 3).
The Government agrees that "bad character" evidence has no place in this trial and contends it "would be inadmissible, no matter which party sought the admission." (Doc. # 60 at 8). Thus, it appears that there is no real dispute concerning bad character evidence, and it is not a basis for severance of Defendant Tracey Bane.
Along the same lines, Ben Bane appears to argue that severance is appropriate because the Government's evidence against Tracey Bane is "strong" and its evidence against Ben Bane is "weak." (Doc. # 59 at 3). The Government submits in its response to the severance motions that it "views the evidence against Ben Bane and Greg Bane as exceptionally strong." (Doc. # 60 at 9).
Nevertheless, even if the evidence against Ben and Gregory Bane is "weak" in comparison with the evidence against Tracey Bane, such a disparity in the weight of the evidence would not warrant severance. See Blankenship, 382 F.3d at 1123 (a defendant does not suffer compelling prejudice simply because much of the evidence at trial is applicable only to a co-defendant, even when the disparity is "enormous") (citations omitted). This is especially true in a conspiracy case, where "proof may be established . . . from inferences drawn from the conduct . . . of confederates." United States v. Green, 40 F.3d 1167, 1173 (11th Cir. 1994).
The Government asserts that any prejudicial dangers can be cured by a special instruction to the jury, and this Court agrees. Further, the Court concurs with the Government's observation that "other than the pre-Bruton redacted version of Tracey Bane's statement, the Defendants not have asserted any particularly powerful or dispositive evidence that is admissible against only one of them and not the others, particularly because the conspiracy may be proven by the actions of a confederate." (Doc. # 60 at 10).
In conclusion, the Court denies the severance motions because Defendants have not demonstrated that a joint trial will result in specific and compelling prejudice. No further discussion of the severance motions is required, and therefore, the Court also denies Tracey Bane's request for oral argument.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED: DENIED. GRANTED. DENIED. DENIED.
(1) Ben Bane's Motion to Sever Co-Defendant Tracey Bane (Doc. # 59) is (2) Defendant Gregory Bane's Motion to Adopt Ben Bane's Motion to Sever Tracey Bane (Doc. # 53) is (3) Tracey Bane's Motion for Severance (Doc. # 56) is (4) Tracey Bane's Motion for Oral Argument on the Motion for Severance is (Doc. # 57) is DONE and ORDERED in Chambers, in Tampa, Florida.