Opinion
Criminal Action No. 04-11, Section "N" (4).
March 4, 2005
ORDER AND REASONS
Before the Court is the "Motion for Dismissal of Counts One and Two for Duplicity, and For Severance Under Federal Rules of Criminal Procedure 8(b) and 14," filed by defendant Jayson Lee on February 17, 2005. For the reasons that follow, the defendant's motion is DENIED.
I. BACKGROUND
Jayson Lee, Lovelle Lang and J.M. are charged together in a 17-count Superceding Indictment, dated April 29, 2004, with various acts of conspiracy, carjacking and use of firearms during and relation to those carjackings. Specifically, Count 1 of the Superceding Indictment charges Lee, Lang and Moore with having conspired to commit the offense of carjacking, in violation of 18 U.S.C. § 2119, beginning at a time unknown, but prior to October 2003, and continuing to on or about December 2, 2003. Count 1 also sets forth the alleged goal of the conspiracy — "to obtain motor vehicles, jewelry, cash and other things of value through the use of force, violence and intimidation" — and the alleged overt acts done in furtherance of the charged conspiracy.
At the time of the alleged commission of the acts charged in the Superceding Indictment, J.M. was 16 years old. On April 7, 2004, the Court granted the government's motion to transfer J.M. to adult status. J.M. appealed that decision to the Fifth Circuit; no decision has been rendered to date. On February 25, 2005, this Court severed Lang and Lee from J.M., so that trial could proceed as to Lang and Lee.
Count 2 charges the three defendants with a second conspiracy, one to knowingly use, brandish, and discharge certain firearms during and in relation to certain crimes of violence (the carjackings), in violation of 18 U.S.C. §§ 924(n) and 2. The allegations contained in Count 1, including those relative to the alleged goal and overt acts of the conspiracy, were incorporated into Count 2 by reference therein.
The substantive counts underlying the two charged conspiracies follow. In Counts 3 and 4, Lang is charged respectively with an October 6, 2003 carjacking and the use of a firearm in relation thereto. Likewise, in Counts 5 and 6, Lang is charged with an October 30, 2003 carjacking and the use of a firearm in relation thereto. Counts 7 through 10 charge both Lang and Lee with two counts of carjacking, on or about November 11, 2003, and two respective counts of use of a firearm in relation to those carjackings. All three defendants are charged together in Counts 11 and 12 with a November 11, 2003 carjacking and the use of a firearm in relation thereto. In Counts 13 and 14, Lang is charged with a November 17, 2003 carjacking and the use of a firearm in relation thereto. Finally, Count 16 charges Lang with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); Count 17 charges Lee with being a felon in possession of a firearm.
Count 15 has been dismissed.
Jayson Lee and Lovelle Lang are set to go to trial on March 7, 2005. On February 17, 2005, Lee filed the instant motion, in which he seeks dismissal of the two conspiracy counts and a severance. In seeking dismissal of Counts 1 and 2, Lee argues that, because there are no factual allegations or evidence to connect him to the alleged actions of Lang in October 2003, on November 7, 2003, and December 2, 2003, the conspiracies charged in counts 1 and 2 are defective on grounds of duplicity. Citing Federal Rule of Criminal Procedure 8(b), Lee also argues that the substantive charges against Lang for the October 2003, November 17, 2003, and December 2, 2003 events (Counts 3 — 6, 13, 14 and 16) are improperly joined in the indictment and should therefore be severed, or, alternatively, the Court should grant Lee a separate trial. Lee's final contention is that, even if the Court find that joinder is proper, the Court should still grant a severance as relief from prejudicial joinder is warranted under Rule 14. The government opposes Lee's motion.
II. LAW AND ANALYSIS
A. The Crimes Charged in Counts One and Two Are Not Duplicitous
As set forth above, Jayson Lee first argues that the two conspiracy counts should be dismissed as there are no factual allegations or evidence to connect him (or J.M.) to the alleged actions of Lovelle Lang in October 2003, on November 7, 2003, and December 2, 2003. Rather, Lee contends, the government has lumped three conspiracies together in each of Counts 1 and 2 of the Superceding Indictment, despite the fact that the government has no evidence to link Lee to any conspiracy beyond that occurring during a finite period during November 11, 2003. Lee directs the Court's attention to the fact that the government has not charged Lee in any of the substantive counts beyond those violations alleged to have taken place on or about November 11, 2003. Lee also states that, because he was in police custody on November 12, 2003, that he could derive any benefit from acts alleged to have happened beyond that date is illogical.
"Duplicity is the joining in a single count of two or more distinct and separate offense." United States v. Cooper, 966 F.2d 936, 939, n. 3 (quotations and citation omitted). In Cooper, the Fifth Circuit explained that the prohibition against duplicitous concerns derives from four concerns: "prejudicial evidentiary rulings at trial; the lack of adequate notice of the nature of the charges against the defendant; prejudice in obtaining appellate review and prevention of double jeopardy; and risk of a jury's nonunanimous verdict." Id. (citation omitted).
As set forth above, Count 1 of the Superceding Indictment charges Lee, Lang and Moore with conspiring to commit the offense of carjacking, in violation of 18 U.S.C. § 2119, beginning at a time unknown, but prior to October 2003, and continuing to on or about December 2, 2003. Count 2 charges the three defendants with conspiring to knowingly use, brandish, and discharge certain firearms during and in relation to certain crimes of violence (the carjackings) during the same time period alleged in Count 2, in violation of 18 U.S.C. §§ 924(n) and 2. Having reviewed the Superceding Indictment and the factual allegations contained therein, the Court finds that the charges in Counts 1 and 2 are not duplicitous. Rather, the factual allegations in each count reflect one conspiracy, or one agreement, to commit several crimes of the same nature (Count 1 — carjacking; Count 2 — use of firearms in furtherance of the carjackings), with the alleged goal of each conspiracy being "to obtain motor vehicles, jewelry, cash and other things of value through the use of force, violence and intimidation." See Count 1 of the Superceding Indictment. See also Cooper, 966 F.2d at 939 (setting forth the settled law regarding duplicity: "the allegation in a single count of a conspiracy to commit several crimes is not duplicitous, for `[t]he conspiracy is the crime, and that is one. . . .'") (quoting Braverman v. United States, 317 U.S. 49, 54, 63 S.Ct. 99, 102, 87 L.Ed.2d 23 (1942)).
At trial, should the defendant Jayson Lee timely request an instruction of the theory of multiple conspiracies and the Court finds that the evidence arguably raises a question of multiple conspiracies, the Court will instruct the jury on such theory. See United States v. Erwin, 793 F.2d 656, 662 (whether the evidence shows one or multiple conspiracies is a factual question for the jury to decide). See also United States v. Faulkner, 17 F.3d 745, 760 (5th Cir.), cert. denied, 513 U.S. 870, 115 S.Ct. 193, 130 L.Ed.2d 125 (1994).
In Erwin, the Court concluded that, where the evidence of a single conspiracy was not so overwhelming that the court could decide the question as matter of law, it was reversible error for the district court to refuse a defendant's proposed multiple conspiracy instruction. 793 F.2d at 663. There, the defendant had requested the following instruction taken from the Pattern Jury Instructions (West 1984):
You are further instructed, with regard to the alleged conspiracy offense, that proof of several conspiracies is not proof of the single, overall conspiracy charged in the indictment unless one of the several conspiracies which is proved is the single conspiracy which the indictment charges. What you must do is determine whether the single conspiracy charged in the indictment existed between two or more conspirators. if you find that no such conspiracy existed, then you must acquit the Defendants as to that charge.
However, if you are satisfied that such a conspiracy existed, you must determine who were the members of that conspiracy.
If you find that a particular Defendant is a member of another conspiracy, not the one charged in the indictment, then you must acquit that Defendant. In other words, to find a Defendant guilty, you must find that he was a member of the conspiracy charged in the indictment and not some other, separate conspiracy. 793 F.2d at 662.
B. Lee Is Not Entitled To A Severance
As correctly set forth by the defendant, courts must engage in a two-step analysis in determining whether a defendant's motion for a separate trial is properly granted. First, the Court must determine whether the defendant has been properly joined in the indictment under Fed.R.Crim.P. 8(b). If the Court finds joinder to be improper, the Court must grant the defendant a separate trial. See United States v. Nettles, 570 F.2d 547, 551 (5th Cir. 1978). Even if joinder is proper, the Court must nevertheless grant a severance under Rule 14 if the defendant would be prejudiced by a joint trial. Erwin, 793 F.2d at 666.
1. Severance Is Not Warranted Pursuant to Rule 8(b)
Federal Rule of Criminal Procedure 8(b) permits the joinder of multiple defendants in a single indictment where it is alleged that the defendants participated in the same act or transaction, or in the same series of criminal acts or transactions constituting the offense or offenses charged. The general rule in the Fifth Circuit is that defendants who are indicted together should be tried together. Erwin, 793 F.2d at 665 (citation omitted).
The Fifth Circuit has held that "proper joinder requires that the offenses charged `must be shown to be part of a single plan or scheme. . . .'" United States v. Faulkner, 17 F.3d 745, 758 (5th Cir. 1994) (quoting United States v. Lane, 735 F.2d 799, 805 (5th Cir. 1984). Further, "[Rule 8(b)'s] requirement is satisfied by allegation of an overarching conspiracy that encompasses the substantive offenses charged." United States v. Krout, 66 F.3d 1420, 1429 (5th Cir. 1995) (citing Faulkner, 17 F.3d at 758).
Here, the Superceding Indictment on its face reveals a proper basis for joinder. Both Jayson Lee and Lovelle Lang are charged together as members of a conspiracy to commit the offense of carjacking (Count 1), and a conspiracy to knowingly use, brandish, and discharge certain firearms during and in relation to the carjackings (Count 2). The Count 2 conspiracy sprang from the Count 1 conspiracy and served to accomplish the Count 1 conspiracy. Further, the substantive acts charged in Counts 3 — 14 are among the overt acts done in furtherance of the conspiracy, as alleged in Count 1 and incorporated by reference in Count 2.
Where, as here, all of the defendants have been charged in the single conspiracy alleged in Count 1 and the single conspiracy alleged in Count 2, this Court find that the joinder of defendants here, and of the several counts, is proper. See Faulkner, 17 F.3d at 758; see also Krout, 66 F.3d at 1429. Finally, Lee is not entitled to a severance of Counts 16 and 17 — the felon in possession charges — as such alleged violations stem from the same acts charged in the substantive counts. See Fed.R.Crim.P. 8(b).
2. Severance Is Not Warranted Pursuant to Rule 14
The Court must also consider whether the movant Jayson Lee has demonstrated that he will suffer clear or substantial prejudice by a joint trial and that, pursuant to Fed.R.Crim.P. 14, a severance is therefore warranted, despite proper joinder. Lee argues that while the November 11, 2003 alleged events are egregious, the jurors will also certainly hear of other events charged on other dates which display a pattern of repeated alleged conduct by Lovelle Lang. According to Lee, evidence that Lang participated in the events charged in Counts 3 — 6, 13, 14 and 16 will prejudice Lee by clouding the jurors' ability to unemotionally and impartially judge the quality of the government's identification evidence against Lee for what Lee refers to as the alleged November 11, 2003 "one-time crime spree."
Rule 14 of the Federal Rules of Criminal procedure provides in part:
If it appears that a defendant . . . is prejudiced by the joinder of offense or of defendants in an indictment . . . or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.
As set forth above, ordinarily, persons indicted together should be tried together. A district court should grant a Rule 14 severance "only if there is a serious risk that a joint trial would compromise a specific trial right of a properly joined defendant or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro v. United States, 506 U.S. 534, 539 (1996) (citation omitted). In so holding, the Court added that "[s]uch a risk might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant. . . ." Id.
The Court does not find that Lee has met his burden of proving specific and compelling prejudice that would require severance under Rule 14. See United States v. Krout, 66 F.3d 1420, 1430 (5th Cir. 1995) (stating that "neither a quantitative disparity in the evidence nor the presence of a spillover effect requires a severance") (citing United States v. Neal, 27 F.3d 1035, 1045 (5th Cir.), cert. denied, 513 U.S. 1008, 115 S.Ct. 530, 130 L.Ed.2d 433 (1994)). See also Erwin, 793 F.2d at 665-66 (denial of Rule 14 severance as to five of six appellants was not in error where a large part of the trial consisted of evidence of two kidnappings, two beatings and one killing, evidence of which differed qualitatively from the crimes with which appellants were charged).
In the instant matter, the evidence at trial should be limited to the elements of the two conspiracies charges, the substantive carjacking charges, and the substantive firearms charges. Such evidence should not be "so complex or muddled so as to prevent the jury from separately considering the evidence against [Lee]." United States v. Willis, 940 F.2d 1136, 1139 (8th Cir. 1991). Further, any possibility of jury confusion may be adequately cured by a specific instruction that Lee is not charged with the offenses charged in Counts 3 — 6, 13, 14 and 16.
III. CONCLUSION
For all the foregoing reasons, IT IS ORDERED that the Motion for Dismissal of Counts One and Two for Duplicity, and For Severance Under Federal Rules of Criminal Procedure 8(b) and 14, filed by defendant Jayson Lee is DENIED.