Opinion
File No. 1:04-CR-165.
March 16, 2005
OPINION
This matter is before the Court on Defendant Wesley Myron Boss' motion to sever the Defendant from his co-defendants pursuant to FED. R. CRIM. P. 14(a).
Defendant has been charged, along with seven other individuals, in an 83-count indictment alleging conspiracy to commit mail fraud, conspiracy to commit money laundering, conspiracy to defraud the United States, substantive money laundering and mail fraud. The charges stem from the eight defendants' operation and involvement in an allegedly fraudulent investment company called Access Financial Corporation. According to the Superseding Indictment, Defendant was a salesman and a sales manager for Access Financial Group from August 1999 to April 2001. United States v. Marcusse, et al, Case No. 1:04-CR-165, Docket #108, Superseding Indictment at Count 1 ¶ 4. Access Financial Group is alleged to have collected approximately $20 million from over 550 investors between January 1998 and December 2001. Superseding Indictment at Count 1 ¶ 16. Before the Court is Defendant's motion to sever his trial from the other co-defendants and proceed with a separate trial. For the reasons stated below, the Court will deny Defendant's motion.
I.
FED. R. CRIM. P. 8(b) provides for the joinder of defendants in a single indictment "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." Indeed, there is a preference in the federal system for joint trials of defendants who are indicted together, especially where an indictment alleges a conspiracy. See e.g., Zafiro v. United States, 506 U.S. 534, 537 (1993); United States v. Cope, 312 F.3d 757, 779-80 (6th Cir. 2002); United States v. Tocco, 200 F.3d 401, 414 n. 5 (6th Cir. 2000) ("We adhere to the `strong policy in favor of joint trials when charges will be proved by the same series of acts.'") (quoting United States v. Horton, 847 F.2d 313, 317 (6th Cir. 1988).
Although joint trials of co-conspirators are preferred, the federal rules recognize that in certain situations joinder of defendants may be prejudicial. Thus, FED. R. CRIM. P. 14(a) provides that the district court may sever defendants' trials if joinder "appears to prejudice a defendant or the government." Severance should be granted 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, 506 U.S. at 539. Defendant has a "heavy burden of showing specific and compelling prejudice" from joinder with his co-defendants. United States v. Harris, 9 F.3d 493, 500 (6th Cir. 1993). "The fact that a defendant may have a better chance at acquittal if his trial were severed does not require the judge to grant his motion: the defendant must show `substantial,' `undue,' or `compelling prejudice.'" United States v. Lopez, 309 F.3d 966, 971 (6th Cir. 2002) (quoting United States v. DeFranco, 30 F.3d 664, 669-70 (6th Cir. 1994)).
II.
Defendant candidly acknowledges that it is not sufficient for him to allege that his co-defendant Janet Marcusse claims she is innocent and that Defendant is responsible for the investment scheme's failure. Such mutually antagonistic defenses are not prejudicial per se. See Zafiro, 506 U.S. at 539. Defendant, however, argues that there are several other factors that demonstrate the necessity of severing his trial from his co-defendants. Principally, Defendant contends that many of his co-defendants are "tax protesters" who are likely to present meritless defenses typical of the tax protester movement and attempt to disrupt the trial. Defendant argues that his co-defendants' potentially disruptive behavior and presentation of tax protestor arguments will confuse the jury in an already complex case and could lead to the Defendant's conviction based on their conduct rather than upon the evidence against him.
Although the co-defendants have demonstrated the potential for disruptive behavior, this is not a sufficient ground upon which to grant severance. See United States v. Kincaide, 145 F.3d 771, 780-81 (6th Cir. 1998). In Kincaide, the Sixth Circuit held that the district court did not err in denying a motion for separate trials even though one of the co-conspirators represented himself and engaged in a bizarre cross examination of a federal agent regarding racism in United States history. Id. The court held that the district court's instruction cured any prejudice resulting from the pro se defendant's conduct. Id. at 781. Similarly, in this case, the co-defendants potentially disruptive behavior does not rise to the level of prejudice necessary to grant severance. The Court has conducted numerous trials involving multiple defendants, including trials with disruptive tax protestors, and can effectively manage the co-defendants in this case so that they do not disrupt the trial. Moreover, if necessary a jury instruction will suffice to protect against prejudice to the Defendant. Id. at 781 ("As a general rule, a cautionary instruction advising the jury not to allow a disruptive co-defendant's behavior to [have an] impact [on] the decision regarding the other defendants affords sufficient protection against undue prejudice." (quoting United States v. Koskela, 86 F.3d 122, 125 (8th Cir. 1996)).
Marcusse was very disruptive and argumentative during her detention hearing such that she was removed from the courtroom. See Transcript of Continued Detention Hearing (Docket #180) (August 4, 2004).
Defendant also contends that severance is necessary because he is far less culpable than his co-defendants, yet in a joint trial may be convicted based upon evidence of another co-defendant's actions. See Zafiro, 506 U.S. at 539. Further, Defendant argues he intends to claim at trial that he was unaware his co-defendants were operating a Ponzi scheme and that the allegations against him have an innocent explanation. In response, the Government asserts that they intend to prove that Defendant was an integral and substantial part of the fraud. This type of factual dispute over Defendant's culpability cannot be resolved at this stage and must be proven to the jury. However, even if the Government's proofs at trial reveal that Defendant was less culpable, severance is not warranted. Any risk of prejudice in a joint trial can be remedied with an instruction to the jury. See Id. at 540-41; United States v. Welch, 97 F.3d 142, 147 (6th Cir. 1996) ("[J]uries are presumed capable of sorting evidence and separately considering each count and each defendant.") (citing United States v. Medina, 992 F.2d 573, 587 (6th Cir. 1993)). Moreover, Defendant's argument that his actions were innocent and that his co-defendants are responsible is precisely the type of antagonistic defense that was not sufficiently prejudicial in Zafiro. 506 U.S. at 538-39.
Finally, Defendant contends that because his wife is one of the co-defendants, in a joint trial he may be unable to give exculpatory testimony towards his wife, while in a separate trial he could testify that she was not guilty and was deceived by Marcusse. Clearly, a defendant has a constitutional right to testify on his or her own behalf. See Rock v. Arkansas, 483 U.S. 44, 51-52 (1987). But Defendant has not asserted that a joint trial will infringe on his right to testify on his own behalf. Rather, Defendant contends that he will be unable to testify on his wife's behalf. As such, Defendant's constitutional rights are not implicated. He is still able to exercise his right to testify on his own behalf. At best, Defendant's assertion is speculative and does not rise to the level of compelling prejudice required to warrant severance. See United States v. Levine, 750 F. Supp. 1433, 1443 (D. Colo. 1990) (rejecting motion for severance where husband claimed that a separate trial from his wife was necessary to avoid the choice between exercising his right to testify on his own behalf and his right not to testify against his spouse) (citing United States v. Vaccaro, 816 F.2d 443 (9th Cir. 1987), rev'd on other grounds by Huddleston v. United States, 485 U.S. 681 (1988)).
Taken together, Defendant's reasons for severance do not overcome the preference for a joint trial. Defendant is charged under an indictment alleging that he participated in a fraudulent investment scheme with the other co-defendants. The evidence against each defendant will encompass many of the same transactions and occurrences. Moreover, this case involves thousands of documents and the Government intends to call approximately one hundred witnesses. Thus a joint trial will serve both the interests of justice by avoiding inconsistent verdicts as well as the need to conduct a speedy and efficient trial. See Richardson v. Marsh, 481 U.S. 200, 210 (1987); Welch, 97 F.3d at 147-48. Further, a joint trial will minimize the inconvenience to the witnesses and will not require multiple presentations of the voluminous record. To the extent that the concerns raised by the Defendant are prejudicial, they can be remedied through cautionary instructions to the jury and effective management of the co-defendants during trial. In short, Defendant has not shown a sufficient risk of prejudice to overcome the preference for a joint trial.
Accordingly, the Court will deny Defendant's motion for severance. The Court will enter an order consistent with this opinion.