Opinion
Case No. 2:03-CR-933 TS.
March 4, 2005
This matter is before the Court on various Motions to Sever brought by Defendants Tracy David Swena, Mike Main, Mark Isaac Snarr, Jason Bates, Andrew P. Beck, Dennis Judd, and Jeff Schirado. A hearing was held thereon on February 8, 2005, oral arguments were heard of counsel, and testimony of several Defendants was taken.
Because of the numerous motions and joinders brought by numerous defendants, the Court has attempted to accurately amalgamate the issues and identify which Defendants join therein. The outlining of the issues and the sequence in which they are addressed herein are designated for convenience and clarity for purposes of this Order.
Also before the Court is Defendant Main's Motion to Grant Defendants Main, Schirado and Judd's Motions to Sever Pursuant to Local Rule of Civil Procedure 7, filed February 4, 2005.
Finally, the Court will herein establish a revised trial schedule.
Having considering the pleadings, heard arguments of counsel, heard testimony, reviewed the file, and being otherwise fully informed, the Court will grant, in part, and deny, in part, the Motions to Sever, as set forth below.
DISCUSSION
1. Severance, generally
As a general matter, Fed.R.Crim.P. 8(b) allows for joinder of defendants if the indictment alleges that they
have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count.
Further, Fed.R.Crim.P. 14(a) provides "relief from prejudicial joinder" in cases where "joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government . . ."
The presumption is in favor of joinder. The appropriateness of joinder is adjudged by the "common thread" test, as set forth inU.S. v. Sanders, 929 F.2d 1466 (10th Cir. 1991). When considering motions for severance, the Court must balance two competing interests by weighing the prejudice to a particular defendant against considerations of economy and expedition in judicial administration. U.S. v. Pack, 773 F.2d 261, 267 (10th Cir. 1985) (internal citations omitted).
Separate trials are not a matter of right where two defendants allegedly participated in the same act or transaction giving rise to the criminal offense. United States v. Dirden, 38 F.3d 1131, 1140 (10th Cir. 1994) (citing United States v. Davis, 436 F.2d 679, 681 (10th Cir. 1971)). The decision whether to grant or deny a motion to sever trials is within the trial court's discretion and will not be disturbed on appeal absent a showing of an abuse of discretion. Dirden, 38 F.3d at 1140 (citing United States v. Flanagan, 34 F.3d 949, 952 (10th Cir. 1994)).
The Supreme Court in Bruton v. United States, 391 U.S. 123 (1968) held that a defendant's right to a fair trial includes the right to cross-examine witnesses. Further, the Court held that admission of a non-testifying co-defendant's confession inculpating defendant deprived defendant of his right to confrontation.
Defendants Swena, Beck and Schirado argue that their specific trial rights to confrontation and a fair trial, per the Sixth Amendment, would be compromised by joinder, thus resulting in prejudice requiring severance. They chiefly argue that various statements will likely be admitted at trial without their ability to cross-examine the speaker/co-defendants, as those speaker/co-defendants will likely invoke their protection against self-incrimination afforded them by the Fifth Amendment.
At the hearing, Defendant Swena opted not to argue this ground, but reserved his right to raise this issue until after the Court has considered his arguments under Crawford regarding co-conspirator statements.
The Supreme Court in Zafiro v. United States, 506 U.S. 534, 539 (1993), held that prejudice requiring severance is present when 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." However, an exception to Bruton exists where the hearsay statements are otherwise allowable or are not legally hearsay. In this case, Fed.R.Evid. 801(d)(2)(E) provides that a statement is not hearsay if the statement is offered against a party, and is "a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy." Further, the caselaw establishes that co-conspirator statements are admissible if the prosecution demonstrates that: 1) a conspiracy existed; 2) the defendant and the declarant were members of the conspiracy; and 3) the declaration was made during the course and in furtherance of the conspiracy. See U.S. v. Garcia, 994 F.2d 1499 (10th Cir. 1993); U.S. v. Mayes, 917 F.2d 457 (10th Cir. 1990). The Tenth Circuit in Garcia held that "statements made during the course of and in furtherance of the conspiracy are considered non-hearsay and therefore admissible."Id.
The Court will reserve ruling on this issue until it becomes appropriately ripe. There has not been a James hearing in this case and the parties agreed on the record that, as such, the issue is not yet appropriately before the Court. The parties may raise the issue again if it becomes germane at a future point in the proceeding of this case. Therefore, the Defendants' Motion to Sever based upon Bruton issues is denied, without prejudice.
3. Prejudice
Defendants Bates, Beck and Schirado argue that they are prejudiced by a joined trial because of an alleged inference of "guilt by association." Severance is appropriate if it appears that a defendant "is prejudiced by a joinder of offenses or of defendants." Fed.R.Crim.P. 14. The Tenth Circuit has instructed as follows:
Before exercising its discretion to grant a motion to sever . . . the trial court must weigh prejudice to the defendant caused by joinder against the obviously important considerations of economy and expedition in judicial administration. It is not enough for [a defendant] to show that severance would have enhanced his chances of acquittal. He must, rather, make a strong showing of prejudice. This burden is heavy for the defendant to bear as he must show more than a better chance of acquittal or a hypothesis of prejudice, he must, in fact, show real prejudice.Dirden, 38 F.3d at 1140-41 (internal citations and quotation marks omitted).
Prejudice under Rule 14 is required for any of these grounds argued in these collective Motions to Sever, as it is the standard for "relief from prejudicial joinder" under that rule. The Court finds that, to the extent not specifically addressed in the remainder of this Order, the Defendants have not made a specific showing of actual prejudice that would warrant severance on this ground alone. Therefore, the Defendants' Motion to Sever based thereon is denied.
4. Varying degrees of culpability
Defendants Snarr, Beck, and Schirado argue that they are prejudiced by the varying degrees of culpability alleged against each of the co-defendants and by the potential unnecessary and prejudicial cumulation of evidence that may result in a complex joined trial such as is currently anticipated in this case.
In Zafiro, the Supreme Court stated that "when many defendants are tried together in a complex case and they have markedly different degrees of culpability, [the] risk of prejudice is heightened." Id. at 539. However, severance is not mandated merely because evidence may be more damaging to one defendant than to others or because evidence demonstrates that one conspirator was not involved during the entire duration of the conspiracy. U.S. v. Frazier, 280 F.3d 835, 844 (8th Cir. 2002). Mere inconsistency is not enough; the jury must not be able to believe the core of one defense without discounting the core of another. Fox v. Ward, 200 F.3d 1286 (10th Cir. 2000).
Further, prejudice is not established merely because evidence on some counts is stronger than evidence for other counts.United States v. Wiseman, 172 F.3d 1196, 1212 (10th Cir. 1999). Defendants may be joined under RICO even if their offenses are wholly unrelated, so long as it is established that each crime furthered or was intended to further the same criminal enterprise. United States v. Turkette, 452 U.S. 576, 583 (1981).
Given the complexities of this case, and the Court's rulings herein, the Court finds that severance is not warranted based upon the grounds of the varying degrees of culpability between the co-defendants. Therefore, the Defendants' Motion to Sever based thereon is denied.
5. Security concerns
Defendants Swena, Snarr, Beck and Schirado argue that a trial in this matter requires severance of the co-defendants because of the unusual levels of courtroom security necessitated in this case by the behavior of Defendants themselves. They argue that this level of security will cause prejudice to the Defendants to the point that they will be denied a fair trial and due process.
If the Court were to so sever on this ground, it would essentially be rewarding the inappropriate behavior of the Defendants in this case. The U.S. Marshall's office is fully capable of minimizing any potentially prejudicial effects in this high-profile case involving numerous defendants. The Court finds the risks of danger and the risks of prejudice are both manageable in a trial in this case. Further, the Court considers this ground to be premature, and will allow the parties to renew the Motion as we approach trial, if it becomes germane at that time.
Therefore, the Court will deny, for now, the Defendants' Motion to Sever on the basis of heightened security concerns.
6. Exculpatory co-defendant testimony
Defendants Main, Snarr, Bates, Judd, and Schirado argue that one or more of the other listed co-defendants could offer exculpatory testimony on behalf of each other, but that such testimony would be unavailable at a joint trial in this matter because each Defendant would invoke their Fifth Amendment right against self-incrimination at trial. At the hearing, the Court heard testimony from each of these five Defendants, and they each offered similarly exculpatory testimony regarding other co-Defendants, and asserted their unequivocal intention to not testify at trial, upon advice of counsel. They each further testified that they would, indeed, testify to such exculpatory evidence at a severed trial.
Defendants Bates and Snarr did not formally plead this issue but, at the hearing, joined in the existing Motion to Sever based upon exculpatory co-defendant testimony.
At the hearing, Defendant Main testified that he was not acquainted with Defendant Schirado until a year after the events occurred underlying Count IV, and that Defendant Judd was not a member of Soldiers of Aryan Culture (hereinafter "SAC"). Defendant Judd testified that Defendant Main was not in the area at the time the events occurred in Counts IV and V. Defendant Schirado testified that Defendant Judd was and is not a member of SAC, that he did not get any orders from Defendant Main, that he did not know Defendant Main before the attack in question, and that Defendant Main was not in the prison facility at the time of the attack. Defendant Snarr testified, inter alia, that Defendant Bates was not a member of SAC, that the altercation was not a result of a SAC conspiracy. Defendant Bates testified that Defendant Snarr did not direct him in any SAC-related activities.
In a joint trial, a defendant may not call to the witness stand a co-defendant who has not plead guilty and who has indicated an intention to assert the privilege against self-incrimination.United States v. Roberts, 503 F.2d 598 (9th Cir. 1974). The Tenth Circuit has outlined seven factors which are relevant when considering a motion to sever based upon potential exculpatory evidence by co-defendants: 1) the likelihood that the defendant would, in fact, have testified and waived his Fifth Amendment privilege at the severed trial; 2) the significance of the testimony to the defendant's defense theory; 3) the exculpatory nature and effect of such testimony; 4) the likelihood that the testimony would have been impeached; 5) the amount of prejudice caused by the absence of such testimony; 6) the effect of the severance on judicial economy; and 7) the timeliness of the motion. Dirden, 38 F.3d at 1141 n. 13 (citing United States v. Powell, 982 F.2d 1422, 1432-33 (10th Cir. 1992) (other internal citation omitted)).
Having carefully considered the above factors, the Court finds that they all weigh strongly in favor of a severance of the trials of Defendants Main, Bates, Judd, and Schirado. As to Defendant Snarr, no testimony has been offered that is exculpatory in nature on his behalf.
Each of these four Defendants testified under oath at the hearing that he would waive his Fifth Amendment right and testify at a severed trial; the testimony offered at the hearing is clearly significant to another Defendant's trial defense theory, as the testimony goes to the heart of the indicted conspiracy; the offered testimony has a strong exculpatory effect to the benefit of the four Defendants; while the government could reasonably be expected to make an effort to impeach such exculpatory evidence, the weight and potential effect of this evidence render this consideration weak; the actual prejudice to each of these four Defendants by the absence of such exculpatory testimony would be great, and injustice would result from such key evidence going unheard at trial; judicial economy will not be significantly effected by a severance of these four Defendants because the trials can occur within the same six-week period already established for the joint trial in this case; and, finally, the Motions to Sever on this ground were made in a timely and appropriate fashion.
The remainder of the Court's analysis will refer to the remaining four Defendants under this ground: Defendants Main, Bates, Judd, and Schirado.
Based upon the above, the Court finds that these four Defendants' right to a fair trial mandates severance in this case. Therefore, the Court will grant the Motion to Sever based upon potential exculpatory co-defendant testimony as to Defendants Main, Bates, Judd, and Schirado. The Motion to Sever is denied as to Defendant Snarr. Each of the four Defendants whose Motions were granted will be tried in separate trials in the same six-week block currently set aside for the joint trial in this matter, as will be specifically ordered below.
7. Mutually exclusive defenses
Defendants Beck and Schirado argue that they are likely to present mutually exclusive defenses or positions at trial and statements of one Defendant may tend to circumstantially inculpate the others. However, the Supreme Court has established that "[m]utually antagonistic defenses are not prejudicial per se." Zafiro v. United States, 506 U.S. 534, 538 (1993) The Tenth Circuit has clearly outlined the parameters a court is to consider when reviewing a Motion to Sever based upon mutually exclusive defenses:
Severance may be necessary if the defenses are so antagonistic that they are mutually exclusive. Severance is not warranted, however, merely because defense theories conflict or because one defendant is attempting to cast blame on the other. . . . The defenses truly must be mutually exclusive, such that the jury could not believe the core of one defense without discounting entirely the core of the other.Dirden, 38 F.3d at 1141 (internal citations and quotation marks omitted).
To the extent that these issues have not already been resolved above, the Court finds that severance in this case is not warranted based upon the possibility that co-defendants in this case may present mutually exclusive defenses. Defendants have not demonstrated that their potential defenses are anything more than conflicting, at most, and certainly have not established that they would be mutually exclusive to a level that would warrant severance. Therefore, the Court will deny the Motion to Sever on the ground of mutually exclusive defenses.
8. Speedy trial issues
Defendant Beck argues that there exists heightened concern over his right to a speedy trial, given the recent trial continuance to September 7, 2005. Defendant Beck asserts that he did not request, nor did he support, the Motion to Continue Trial; that he currently objects to the September setting; that he has been in custody during the entire pendency of this case; that a very small amount of the discovery in this matter, which is at the heart of the reason for the trial continuance, relates to him; and that he should be granted a severance so that he can proceed to trial in a speedy manner.
The Court finds that each continuance in this case has been appropriate and necessary, and has been accompanied by an appropriate finding of the Court and accompanying language and order. Severance of Defendant Beck on this ground is not appropriate. Therefore, Defendant Beck's Motion to Sever on speedy trial grounds is denied.
9. Speedy Trial Issues
Defendant Main also filed a Motion to Grant Defendants Main, Schirado, and Judd's Motions to Sever Pursuant to Local Rule of Civil Procedure 7, based upon the government's failure to timely respond to the Motions to Sever based upon exculpatory testimony of codefendants. However, given the Court's rulings herein, the Court will deny this Motion.
CONCLUSION
Based upon the above, it is hereby
ORDERED that Defendants Main, Bates, Judd, and Schirado' Motion to Sever based upon exculpatory co-defendant testimony is GRANTED; it is further
ORDERED that Defendant's Mark Isaac Snarr's Motion to Sever based upon exculpatory evidence of co-defendants, to the extent made, is DENIED; it is further
ORDERED that the Court will reserve ruling on Defendant Tracy David Swena's Motion to Sever based upon security issues; it is further
ORDERED that the Court will reserve ruling on Defendant Swena, Beck, and Schirado's Motion to Sever based upon Bruton issues until they are appropriately ripe; it is further
ORDERED that Defendant Beck's Motion to Sever based upon speedy trial issues is DENIED; it is further
ORDERED that Defendant Main's Motion to Grant Defendants Main, Schirado, and Judd's Motions to Sever Pursuant to Local Rule of Civil Procedure 7 is DENIED; it is further
ORDERED that the remaining Motions to Sever filed by Defendants Swena and Snarr, and to the extent so joined by Main, Judd, Schirado and Bates, based upon the remaining argued grounds is DENIED; it is further
ORDERED that the trial schedule is AMENDED as follows:
Mike Main's trial is set for September 7-9, 2005;
Jason Bates' trial is set for September 12-14, 2005;
Dennis Judd's trial is set for September 19-21, 2005;
Jeff Schirado's trial is set for September 26-28, 2005;
The trial of the remaining co-defendants is set for October 3-18, 2005.
If a Defendant needs to request a change in this trial schedule, they must make a request in writing for an earlier date.
SO ORDERED.