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finding defendant's cover-up actions were appropriately related and demonstrated consciousness of guilt
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NO. 01-429-03
June 19, 2003
MEMORANDUM AND ORDER CRIMINAL ACTION
Defendant Cornell Tyler ("Tyler") was convicted by a jury of a violation 18 U.S.C. § 242, which prohibits "the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States" by anyone acting "under color of . . . law." Presently before the court is Tyler's motion for post trial relief, in which he suggests that the court committed errors at trial, thereby necessitating a judgment of acquittal or a new trial. In his motion, Cornell sets forth three arguments: (1) he moves for a judgment of acquittal after a guilty verdict pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure on the ground that the evidence was insufficient to support a guilty verdict; (2) he moves for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure because he asserts that the verdict was contrary to the weight of the evidence; and (3) he moves for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure because he asserts that the court should have granted his pre-trial motion for severance. For the foregoing reasons, I reject all three arguments and deny defendant's motion.
FACTUAL BACKGROUND
The instant case arises from the March 11, 1999 beating of inmate Dante Hunter ("Hunter") in the Curran Fromhold Correctional Facility. Tyler and four other defendants were indicted under 18 U.S.C. § 242 for deprivation of civil rights and under 18 U.S.C. § 241 for conspiring to violate civil rights. More specifically, the indictment alleged that Tyler violated Hunter's Eighth Amendment right to be free from cruel and unusual punishment. On May 1, 2002, after a ten-day trial, a jury convicted Tyler of the deprivation of civil rights charge, and acquitted him of the conspiracy charge. Thereafter, Tyler filed the instant motion for post-trial relief. In it, he attacks the verdict as being insufficient, and against the weight of evidence. He also asserts that the court erred in not granting his pre-trial motion for separate trials.STANDARD OF REVIEW
I. Federal Rule of Criminal Procedure 29(c)
Rule 29(c) provides that a defendant may, within seven days after the verdict, or such longer time as the court may prescribe, file a motion for judgment of acquittal. FED. R. CRIM. P. 29(c). The purpose of Rule 29 is to question the sufficiency of the evidence to support a conviction. See generally United States v. Pungitore, 910 F.2d 1084, 1129 (3d Cir. 1990) (discussing the standard of review for a motion for judgment of acquittal), cert. denied sub nom, Virgilio v. United States, 500 U.S. 915 (1991). "A defendant challenging the sufficiency of the evidence bears a heavy burden." United States v. Casper, 956 F.2d 416, 421 (3d Cir. 1992). In reviewing the record to determine whether there was sufficient evidence to support a conviction, "the court must view the evidence and the inferences logically deducible therefrom in the light most favorable to the government, to determine if there is sufficient evidence to support the factfinder's verdict." United States v. McNeill, 887 F.2d 448, 450 (3d Cir. 1989), cert. denied, 493 U.S. 1087 (1990). A conviction may be based upon circumstantial evidence, provided that the evidence sufficiently supports the verdict. "The evidence need not unequivocally point to the defendant's guilt as long as it permits the jury to find the defendant guilty beyond a reasonable doubt." Pungitore, 910 F.2d at 1129. "A verdict will be overruled only if no reasonable juror could accept the evidence as sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt." United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987) (citations omitted); see also United States v. Salmon, 944 F.2d 1106, 1113 (3d Cir. 1991) (finding that in evaluating the sufficiency of the evidence to support a conviction, the court "must determine whether a reasonable jury believing the government's evidence could find beyond a reasonable doubt that the government proved all of the elements of the offenses"), cert. denied sub nom, Washington v. United States, 502 U.S. 1110 (1992).
II. Federal Rule of Criminal Procedure 33
In the alternative to a judgment of acquittal, the defendant requests that the court grant a new trial, pursuant to Rule of 33, which provides as follows: "[o]n a defendant's motion, the court may grant a new trial to that defendant if the interest of justice so requires. . . ." FED. R. CRIM. P. 33; see also United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002) (noting the standard). The defendant bears the burden of proving that a new trial ought to be granted. United States v. Sasso, 59 F.3d 341, 350 (2d Cir. 1995); 3 CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL 2D § 551 (1982). "The decision whether to grant a motion for a new trial under Rule 33 is committed to the sound discretion of the trial court, which may set aside the verdict and order a new trial if it ascertains that the verdict constitutes a miscarriage of justice." United States v. Daniels, No. 95-CR-369, 1996 WL 311444, at *4 (E.D. Pa. June 6, 1996) (citing United States v. Martorano, 596 F. Supp. 621, 624 (E.D. Pa. 1984), aff'd, 767 F.2d 63 (3d Cir.), cert. denied, 474 U.S. 949 (1985)); see also United States v. Bevans, 728 F. Supp. 340, 343 (E.D. Pa.) ("[The court] may set aside the verdict and order a new trial if it is ascertained that the verdict constitutes a miscarriage of justice."), aff'd, 914 F.2d 244 (3d Cir. 1990).
DISCUSSION
I. Federal Rule of Criminal Procedure 29(c)
Pursuant to Rule 29(c), I must determine whether a reasonable jury believing the government's evidence could find beyond a reasonable doubt that the government proved all of the elements of a violation of 18 U.S.C. § 242 in this case. Tyler contends that the government failed to do this, and that the evidence was insufficient, as a matter of law, to support a guilty verdict under § 242; thus, he argues that he is entitled to a judgment of acquittal pursuant to Rule 29.
Section 242 prohibits "the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States" by anyone acting "under color of . . . law." In the instant case, the prosecution had to prove beyond a reasonable doubt that: (1) the conduct of Tyler deprived Hunter of his Eighth Amendment right to be free from cruel and unusual punishment; (2) Tyler was acting under color of law; (3) Tyler acted willfully, that is with a specific intent to deprive Hunter of his Eighth Amendment right; and (4) Tyler's acts resulted in bodily injury to Hunter. N.T. 04/26/02 at 143. In his post-trial motion, Tyler focuses his attack on the government's alleged failure to meet its burden as to the first element and to some extent the fourth element. As such, I will limit my analysis to a review of the evidence offered in support of those elements.
The full text of § 242 provides as follows:
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death. 18U.S.C. § 242.
In a generic § 242 case, the government must prove beyond a reasonable doubt the following four elements: (1) that the defendant deprived the victim of a right protected by the Constitution or laws of the United States; (2) that the defendant was acting under color of law; (3) that the defendant acted willfully, that is with a specific intent to deprive the victim of a constitutionally protected right; and (4) the defendant's acts resulted in bodily injury to the victim. NT. 04/26/02 at 143.
Cruel and unusual punishment includes force which constitutes the unnecessary and wanton infliction of pain. 04/26/02 at 144-145 (jury charge). Force is unnecessary if it is inflicted maliciously and sadistically for the purpose of causing harm. 04/26/02 at 145 (jury charge). To determine whether the use of force was unnecessary and wanton, a jury may consider the following factors: (1) the need for the application of force; (2) the relationship between the need for force and the amount of force that was used; (3) the extent of the injury inflicted; (4) the extent of the threat to the safety of the staff and inmates, as reasonably perceived by responsible officials, and (5) any efforts made to temper the severity of a forceful response. N.T. 04/26/02 at 145 (jury charge).
The government need not show that Hunter suffered serious injury; it need only prove that Hunter suffered some injury. Bodily injury includes, but is not limited to, bumps, bruises, burns, abrasions, swelling, and physical pain no matter how minor or temporary. 04/26/02 at 151 (jury charge).
While Tyler never expressly states that his challenge is solely to the establishment of the first element, his criticism of the government focuses on its failure to show that Tyler acted sadistically and maliciously, characteristics that are indicative of the first element. The remainder of his argument seems to be an assertion that the government, because it did not identify with specificity where Hunter's injuries occurred (i.e., whether in the cell or during the escort to the medical unit), failed to prove beyond a reasonable doubt that Tyler's acts resulted in harm to Hunter.
Tyler argues that because the evidence showed that Hunter's injuries resulted primarily from being beaten with the narrow edge of a handcuff and there was no evidence indicating that Tyler used handcuffs to assault Hunter, the government failed to prove, beyond a reasonable doubt, that Tyler deprived Hunter of his right to be free from cruel and unusual punishment by maliciously and sadistically using force for the purpose of causing harm. My review of the record, however, reveals substantial evidence upon which a jury could rely to reach the conclusion that the government proved the first element of a § 242 violation beyond a reasonable doubt. It is undisputed that Tyler ran toward and into Cell 17 after Hunter, after he realized that a "problem" had occurred. N.T. 04/26/02 at 108-109 (testimony of Cornell Tyler); N.T. 04/16/02 at 106 (testimony of Antonio Smalls); see also N.T. 04/16/02 at 152 (testimony of Stacey Culbert) (testifying that he saw correctional officers running toward and into Cell 17 shortly before the beating of Hunter occurred); N.T. 04/18/02 at 229 (testimony of William Featherer) (same). It is also undisputed that Tyler punched Hunter and sprayed mace in Hunter's face. N.T. 04/24/02 at 114, 115 (testimony of Cornell Tyler). What is in dispute is whether Tyler believed he was engaging in a lawful enforcement action at the time that he punched and maced Hunter. At trial, Tyler testified that Hunter and Steptoe were engaged in a struggle and that he acted lawfully, rather than maliciously and sadistically, in restraining Hunter. Numerous other witnesses, however, testified that Hunter did not provoke a fight and that he was not resisting being handcuffed at the time that Tyler and other correctional officers were seen using force to restrain him. N.T. 04/16/02 at 228 (testimony of Linda Burnette); N.T. 04/17/02 at 153 (testimony of Stacey Culbert); N.T. 04/18/02 at 112 (testimony of Dante Hunter);N.T. 04/18/02 at 236 (testimony of William Featherer). Moreover, several witnesses, in addition to Hunter, N.T. 04/18/02 at 112 (testimony of Dante Hunter), testified that Hunter was begging his attackers to stop beating him. N.T. 04/17/02 at 153, 157 (testimony of Stacey Culbert); N.T. 04/18/02 at 232, 236 (testimony of William Featherer). In addition to the testimony of one witness stating that she saw Tyler punch and kick Hunter, N.T. 04/16/02 at 226, 230, 232 (testimony of Linda Burnette), there was substantial testimonial evidence that the officers in Cell 17, where Tyler admits being, were punching and kicking and stomping Hunter, although the witnesses were unable to identify the particular officers. N.T. 04/17/02 at 152-153 (testimony of Stacy Culbert); N.T. 04/18/02 at 94-95 (testimony of Dante Hunter); N.T. 04/18/02 at 232, 234 (testimony of William Featherer); N.T. 04/25/02 at 66-67 (testimony of Lillian Walker). Based on the evidence reviewed above, a reasonable juror could conclude that the government satisfied its burden of proof as to the first element. A reasonable jury could make credibility determinations in favor of the government's witnesses and against Tyler to conclude that the government proved, beyond a reasonable doubt, that Tyler ran toward and into Cell 17, that Hunter did not provoke the use of force, and that Tyler nevertheless unnecessarily and wantonly punched, kicked and maced Hunter, and thus deprived Hunter of his Eighth Amendment right to be free from cruel and unusual punishment.
Hunter testified that he did not "strike at any of the officers, kick them, aggressively do anything, head but[t] them, nudge them, [or] do anything . . . to harm [the] officers." N.T. 04/18/02 at 112 (testimony of Dante Hunter).
In addition to Hunter, three other witnesses testified that Hunter was not acting aggressively toward the correctional officers in Cell 17 but rather that he was passively taking the beating. Burnette testified that Hunter did not "strike out at any of the officers," nor did he "try and hit any of the officers with his left hand or with whatever hand was loose or the hand with the cuff" N.T. 04/16/02 at 228 (testimony of Linda Burnette). Culbert testified that Hunter did not "take a swing at any of the officers," "kick at any of the officers or act in any other way aggressive towards the officers" but rather that Hunter was more in a "defensive mode," and that "he was putting his hands up as if to block a punch or whatever." N.T. 04/17/02 at 153 (testimony of Stacy Culbert). Finally, Featherer testified that Hunter did not "strike at any of the officers, hit them in any way, kick at them, [or] do anything at all." N.T. 04/18/02 at 236 (testimony of William Featherer).
In response to this evidence, Tyler asserts that Linda Burnette's sworn testimony is consistent with both guilt and innocence, and that the court must accept the version of her testimony that is consistent with innocence. As the government points out, however, Burnette's testimony is not equally consistent with both guilt and innocence. While isolated statements in her testimony may be indicative of innocence, the bulk of her testimony weighed heavily against Tyler, in that she asserted that Hunter was not resisting the officers, that the officers continued to beat him despite the fact that he was no longer a threat and that the officers were in such a rage that she was too terrified to try to stop them alone. As such, I find Tyler's contention that Burnette's testimony was consistent with both innocence and guilt to be unavailing.
Tyler also asserts that Lillian Walker testified in a manner consistent with both innocence and guilt, but again I find this contention wholly unpersuasive given the bulk of her testimony.
There is also substantial evidence upon which a reasonable jury could rely to reach the conclusion that the government proved the fourth element by proof beyond a reasonable doubt, i.e., that Tyler's conduct resulted in bodily injury to Hunter. Tyler argues that because the evidence showed that Hunter's injuries resulted primarily from being beaten with the narrow edge of a handcuff and there was no evidence indicating that Tyler used handcuffs to assault Hunter, the government failed to prove, beyond a reasonable doubt, that his conduct resulted in bodily injury to Hunter. This contention, however, ignores the testimony of Dr. Mohammed Hague, who testified that Hunter suffered swelling in various parts of his head, including his jaw and over his right eye. N.T. 04/18/02 at 216-219 (testimony of Dr. Mohammed Hague). Dr. Hague also testified that Hunter suffered some damage to his forearm. N.T. 04/18/02 at 217 (testimony of Dr. Mohammed Hague). Tyler's contention that the government failed to show that his conduct resulted in bodily injury to Hunter also ignores the testimony of several witnesses who stated that Hunter was bleeding profusely when he exited Cell 17, after being beaten by Tyler and other correctional officers. N.T. 04/16/02 at 227-228 (testimony of Linda Burnette); N.T. 04/17/02 at 159 (testimony of Stacy Culbert); 06/19/02 at 12 (testimony of William Boston). Of course, there are also the photographs of Hunter which depict numerous wounds and injuries. N.T. 04/22/03 at 4-5 (government's offer and court's admittance of photographs as evidence). The testimonial, documentary and pictorial evidence outlined provides ample support for the contention that Hunter suffered injuries beyond those inflicted from handcuffs. A reasonable jury, believing the testimony stating that Tyler punched, kicked and maced Hunter, could also conclude that Tyler's punches and kicks resulted in the swelling and arm injuries sustained by Hunter. Thus, I conclude that there was ample evidence upon which a reasonable jury could rely to reach the conclusion that the government proved, beyond a reasonable doubt, that Tyler's conduct resulted in bodily injury to Hunter.
In sum, despite Tyler's contention that the evidence was insufficient as a matter of law to result in a guilty verdict, I find the verdict to be supported by sufficient evidence. The government offered testimonial evidence and exhibits (including photographs of Hunter's injuries and the state of Cell 17 after the altercation) in its case against Tyler. Moreover, there was direct testimonial evidence and significant circumstantial evidence tying Tyler to the beating of Hunter and to the injuries sustained by Hunter. Thus, because I conclude that a reasonable juror could accept the evidence as sufficient to support the conclusion that the government proved each element of the offense beyond a reasonable doubt, I must deny defendant's motion pursuant to Rule 29.
II. Federal Rule of Criminal Procedure 33
A.
In the alternative, Tyler moves for a new trial pursuant to Rule 33 because he asserts that the verdict was contrary to the weight of the evidence. Pursuant to Rule 33, "[o]n a defendant's motion, the court may grant a new trial to that defendant if the interest of justice so requires. . . ." See FED. R. CRIM. P. 33. One reason a new trial may be granted is if the verdict is against the weight of the evidence. Tibbs v. Florida, 457 U.S. 31, 37-39 n. 11-12, (1981); United States v. demons, 658 F. Supp. 1116, 1119 (W.D. Pa. 1987). The Third Circuit has described a district court's consideration of a Rule 33 motion for a new trial based on the "weight of the evidence" as follows:
A district court can order a new trial on the ground that the jury's verdict is contrary to the weight of the evidence only if it "believes that `there is a serious danger that a miscarriage of justice has occurred — that is, that an innocent person has been convicted.'"United States v. Brennan, 326 F.3d 176, 188-189 (3d Cir. 2003) (quotations omitted); see also United States v. Bevans, 728 F. Supp. 340, 343 (E.D. Pa. 1990) ("[The court] may set aside the verdict and order a new trial if it is ascertained that the verdict constitutes a miscarriage of justice."). When a district court evaluates a Rule 33 motion it does not view the evidence favorably to the government, but instead exercises its own judgment in assessing the government's case. See Brennan, 326 F.3d at 189 (quoting United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002) (citing United States v. Lacey, 219 F.3d 779, 783-84 (8th Cir. 2000) and United States v. Ashworth, 836 F.2d 260, 266 (6th Cir. 1988)). Thus, "[m]otions for a new trial based on the weight of the evidence are not favored. Such motions are to be granted sparingly and only in exceptional cases." Government of Virgin Islands v. Derricks, 810 F.2d 50, 55 (3d Cir. 1987) (citations omitted).
The standard for reviewing a motion for a new trial pursuant to Rule 33 is unlike an insufficiency of the evidence challenge, where the court must view "the evidence in the light most favorable to the government." United States v. Zwick, 199 F.3d 672, 688-89 (3d Cir. 1999).
Exercising my own judgment in reviewing the evidence presented at trial, as previously outlined, I find that the verdict was not against the weight of the evidence. There was ample direct and circumstantial evidence, in the both testimonial and documentary form, indicating that Tyler unnecessarily punched, kicked and maced a passive Hunter. As such, I conclude that Tyler's guilty verdict did not constitute a miscarriage of justice. As a result, I must deny his motion for a new trial based on the argument that the verdict was against the weight of the evidence.
B.
Tyler's final argument is also based on Rule 33, but here he asserts that he should be granted a new trial because the court erred in not granting his initial motion for severance. On March 30, 2002, approximately a month before the trial began, Tyler moved this court to find either that joinder was improper under Rule 8(b) of the Federal Rules of Criminal Procedure, or that severance of Tyler's trial from defendant Glen Guadalupe's trial was warranted under Rule 14 of the Federal Rules of Criminal Procedure. Tyler and four other defendants were charged in connection with the beating incident involving Hunter. Guadalupe was charged with obstruction of justice relating to the alleged cover-up immediately thereafter. At the time, I denied the motion, finding joinder proper and concluding that Tyler had failed to show that substantial prejudice would result from a joint trial. In addition, I noted that any prejudice which might arise could be cured by a limiting instruction to the jury. Tyler now renews that argument, in the context of his post-trial Rule 33 motion, and contends that the court erred in denying the initial motion for severance, and that the error was such that the interest of justice requires the granting of a new trial.
Thus, the issue here is whether the denial of Tyler's initial motion for severance violates the interest of justice. To make that determination, I must first determine whether joinder under Rule 8(b) was proper at the time of trial, and then assess whether, at the time I made the decision to deny the Rule 14 motion for severance, there was a serious risk that a joint trial would either compromise a specific trial right of Tyler or prevent the jury from making a reliable judgment with regard to Tyler's guilt or innocence. If I conclude that joinder created a risk of prejudice for Tyler, I will then assess whether the relief I granted, in the form of limiting instructions during the course of the trial and in my final charge to the jury, was sufficient to quell the risk of prejudice. Depending upon the conclusions that I reach as to these questions, I will assess whether my discretionary determination to deny the motion for severance was so erroneous that the interest of justice mandates a new trial.
Rule 8(b) provides that defendants may be charged together "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." FED. R. CRIM. P. 8(b). "As long as the crimes charged are allegedly a single series of acts or transactions, separate trials are not required." United States v. Eufrasio, 935 F.2d 553, 567 (3d Cir. 1991). Moreover, as observed by the United States Supreme Court, "[t]here is preference in the federal system for joint trials of defendants who are indicted together" because joint trials "promote efficiency and `serve the interest of justice by avoiding the scandal and inequity of inconsistent verdicts.'" Zafiro v. United States, 506 U.S. 534, 537 (1993) (quoting Richardson v. Marsh, 481 U.S. 200, 210 (1987)); see also United States v. Baiter, 91 F.3d 427, 432 (3d Cir. 1996) (favorably citing Zafiro). In the instant case, the indictment charged six defendants with various criminal offenses; every offense in the indictment, however, was related to the beating of Hunter. The constitutional deprivation and conspiracy charges, arising from the beating of Hunter, which were asserted against Tyler arose from the exact incident involving four other defendants and were closely related to the obstruction charges asserted against Guadalupe for orchestrating a cover-up of the beating. The facts underlying the charges against Tyler and Guadalupe were related in time, place and manner, Tyler was charged with participating in the beating of Hunter and Guadalupe was charged with orchestrating a cover-up of the beating which began within minutes thereafter and lasted only a few days. There was a common thread tying all of the offenses together such that they constituted "a single series of acts or transactions." As such, and considering the preference for joinder, I conclude that joinder, pursuant to Rule 8(b), was proper.
Having shown that joinder was proper pursuant to Rule 8(b), I must nevertheless assess whether the denial of Tyler's motion for severance pursuant to Rule 14, which permits severance of a proper Rule 8(b) joinder if a joint trial "appears to prejudice a defendant or the government," was a proper exercise of discretion. FED.R. CRIM. P. 14(a). In deciding whether to grant a motion for severance, the court should weigh the public's interest in the judicial efficiency of a joint trial against the possibility of prejudice that a defendant may suffer. Eufrasio, 935 F.2d at 568. This is a discretionary determination. FED. R. CRIM. P. 14(a) ("If the joinder of offenses or defendants in an indictment . . . appears to prejudice a defendant . . . the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires.") (emphasis added).
A defendant bears a heavy burden when moving for severance under Rule 14. Eufrasio, 935 F.2d at 568 (quoting United States v. De Peri, 778 F.2d 963, 983 (3d Cir. 1985)). Mere allegations of prejudice are insufficient to meet this burden. United States v. Giampa, 904 F. Supp. 235, 265 (D.N.J. 1995). Nor should prejudice be found in a joint trial simply because all evidence adduced is not germane to all counts against each defendant. Balter, 91 F.3d at 433. Nor is a defendant entitled to severance merely because he may have a better chance of acquittal in a separate trial. Zafiro, 506 U.S. at 540. Rather, a defendant seeking to succeed on a motion for severance must "pinpoint `clear and substantial prejudice' resulting in an unfair trial." United States v. McGlory, 968 F.2d 309, 340 (3d Cir. 1992) (quoting Eufrasio, 935 F.2d at 265). Indeed, given the preference for joint trials noted above, the Supreme Court has held that when defendants are properly joined under Rule 8(b), a district court should grant a Rule 14 motion for severance 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. In this context, our circuit has noted that prejudice sufficient to warrant severance or a similar remedy might occur in the following situations: "(1) a complex case involving many defendants with markedly different degrees of culpability; (2) a case . . . where evidence that is probative of one defendant's guilt is technically admissible only against a co-defendant; and (3) a case where evidence that exculpates one defendant is unavailable in a joint trial." Baiter, 92 F.3d at 432-433 (citing Zafiro, 506 U.S. at 539).
Finally, even if a defendant is able to demonstrate prejudice as a result of a joint trial, Rule 14 does not require severance if the district court determines that some other relief may be more appropriate. Zafiro, 506 U.S. at 538-539. Rather, Rule 14 "leaves the tailoring of the relief to be granted, if any, to the district court's sound discretion." Zafiro, 506 U.S. at 539 (citations omitted); see also FED. R. CRIM. P. 14 ("If the joinder of . . . defendants in an indictment . . . appears to prejudice a defendant . . . the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires") (emphasis added). Thus, the district court may determine that measures less drastic than severance, such as limiting instructions, will suffice to cure the risk of prejudice. Zafiro, 506 U.S. at 539, 540, 541. The relevant inquiry then becomes, whether a jury can reasonably be expected to compartmentalize the allegedly prejudicial evidence in light of the quantity and limited admissibility of the evidence. Eufrasio, 935 F.2d at 568 (quoting De Peri, 778 F.2d at 984)).
Using the analytical framework outlined above, I will assess whether Tyler's motion for severance was properly denied. In his pre-trial motion, and in his post-trial brief, Tyler argued that he suffered prejudice by having to try his case jointly with Guadalupe. None of the other four defendants who, like Tyler, were charged with participating in the beating of Hunter, sought a severance. The essence of his argument is that he was the victim of the spillover effect of the evidence against Guadalupe. He asserts that the jury improperly considered evidence admitted against Guadalupe (which indicated that Guadalupe engaged in a cover up in order to protect certain correctional officers, one of whom he says was Tyler) in finding Tyler guilty. Thus Tyler argues, the jury was not able to compartmentalize the evidence according to the defendant against whom it was admitted.
Tyler first claims that he was prejudiced by the admission of evidence indicating that Guadalupe engaged in a cover-up of the beating of Hunter because he was trying to protect certain correctional officers whom he had selected for a special search squad, and that Tyler was one of those officers. More precisely, he highlights the following testimony of Linda Burnette as especially prejudicial: "So then [Guadalupe] asked me, he said, By the way, who was the officers? So I explained — I told him who the officers were, Officer Steptoe, Officer Tyler, Officer Payne. And he was like, Oh, no, no, they can't burn, they can't burn, they're my boys, my homies." N.T. 04/16/02 at 239-241. Upon review of this statement, I find that Tyler has failed to meet his burden of showing substantial prejudice for two reasons. First, I note that this statement would likely be admissible against Tyler in a separate trial if he were to question Burnette with regard to the change in her story because it provides an explanation for the change. Second, at the time this testimony was received, Tyler requested and received a limiting instruction from the court, which provided:
While I made no ruling on whether such testimony would have been admissible against Tyler in a separate trial, I note that such an outcome is likely. Such testimony could be used as explanatory rebuttal to attacks on Burnette for the change in her story from the days immediately following the incident to her grand jury testimony. Her comments about Guadalupe wanting to protect his "boys" provide a reason for the switch in her testimony and, as such, would likely be admissible when Tyler chose to attack her credibility by questioning her about her inconsistent statements. At argument on the severance motion, Tyler's counsel was not willing, and appropriately so, to state that he would not cross-examine Burnette in this manner.
The evidence that you just heard, as to what Mr. Guadalupe said [to Ms. Burnette], is admissible in this trial against Mr. Guadalupe, but not anybody else. So you must consider this evidence only with regard to Mr. Guadalupe, and not with reference to any of the other — any of the other defendants. It's only admissible as to him, since he said it, but it's not admissible as to anybody else. You must use it for that purpose and no other purpose.
N.T. 04/16/02 at 241-242. This instruction protected against the danger of prejudicial spillover that Tyler asserts could possibly have resulted from the statement. Because jurors are expected to heed such instructions, Richardson, 481 U.S. at 211,1 find no substantial prejudice in the admission of this statement. Nor do I find a risk that the admission of this statement compromised a specific trial right of Tyler or prevented the jury from making a reliable determination as to Tyler's guilt or innocence. As such, I find that severance pursuant to Rule 14 was not warranted on this ground.
Several other witnesses testified about the existence of a special search squad, N.T. 04/16/02 at 123-125, 134-137, 178-180 (testimony of Antonio Smalls); NT. 04/23/02 at 50-55, 57-59 (testimony of Brockenborough), but Tyler did not object to the admission of those statements nor did he ask for a limiting instruction. In addition, Tyler's attorney expressly asked Tyler about his involvement in the special search squad during his direct testimony. N.T. 04/24/02 at 101 (testimony of Cornell Tyler).
Tyler next asserts that he suffered prejudice due to the testimony of Mary Padilla, a witness for Guadalupe. Tyler did not offer this rationale at the time of argument on the motion for severance so that it cannot now be considered a basis for error. Padilla testified that she, upon Guadalupe's request, provided a report of the incident. In that report, which was offered into evidence without objection from Tyler, Padilla noted that prison policies and procedures were not followed during the altercation with Hunter. N.T. 04/23/02 at 25 (testimony of Mary Padilla). When the government cross-examined Padilla as to her conclusion, Tyler objected on the ground of inadmissible opinion and conclusion. N.T. 04/23/02 at 24-25 (testimony of Mary Padilla). I overruled that objection because the report had already been admitted into evidence, and thus the conclusions contained in the report were in evidence. N.T. 04/23/02 at 25 (testimony of Mary Padilla). As Tyler has presented no new arguments to convince me that my initial ruling was incorrect, I conclude that Tyler suffered no substantial prejudice as a result of the admission of the incident report and Padilla's conclusions.
Even were I to conclude that joinder prejudiced Tyler, I have the discretion to grant relief less drastic than severance. A risk of prejudice may often be cured with an appropriate jury instruction. United States v. Bissell, 954 F. Supp. 841, 872 (D.N.J. 1996) (citing Zafiro, 506 U.S. at 540). In the instant case, I issued limiting instructions when requested, as shown above, and I reminded the jury, in the final charge, to consider the evidence against each defendant separately:
[Y]ou must consider each defendant separately. It is your duty to give separate and personal consideration to the case of each individual defendant. When you do so, you should analyze what the evidence in the case shows with respect to that individual defendant, leaving out of your consideration entirely any evidence admitted solely against some other defendant or defendants.
Each defendant is entitled to have his case determined from the evidence as to his own acts, statements and conduct, and any other evidence in the case which may be applicable to him. The fact that you return a verdict of guilty or not guilty to one defendant should not in any way affect your verdict regarding any other defendant."
N.T. 04/26/02 at 136-137. Because juries are presumed to follow the instructions given to them, Richardson, 481 U.S. at 211,1 find that the instructions given sufficed to cure any prejudice that resulted from my refusal to sever the trial of Tyler from Guadalupe. The evidence against Tyler and the evidence against Guadalupe were easily compartmentalized by the jury as the facts were not complicated and there was little risk of spillover. Any possible harm was cured by the limiting instructions and the jury amply demonstrated its ability to consider each defendant and each charge separately, as it was instructed to do.
In sum, after reviewing the record and Tyler's arguments, I conclude that Tyler has failed to meet his burden of showing that substantial prejudice occurred as a result of the joint trial. Neither of the instances pointed to by Tyler demonstrated a serious risk that the joint trial compromised a specific trial right or prevented the jury from making a reliable judgment about Tyler's guilt or innocence. Rather, the convictions of certain defendants and acquittal of others indicates that the jury was able to properly compartmentalize the evidence against each defendant. In addition, I note that severance was not in the interests of judicial economy here, as separate trials would have involved the same witnesses and much of the same documentary proof; such a duplication of effort would have been unnecessary and wasteful. As such, I conclude that Tyler has failed to demonstrate prejudice and failed to show that I erred in my initial denial of his motion for severance. I conclude that a new trial would not serve the interest of justice and as a result, I deny Tyler's motion pursuant to Rule 33.
CONCLUSION
In his post-trial motion, Tyler set forth several arguments essentially stating that the verdict was contrary to the weight of the evidence and suggesting that the court committed errors at trial, thereby necessitating a judgment of acquittal or a new trial. For the reasons expressed above, Tyler's motion will be denied. An appropriate order follows.
ORDER
And now, this day of June 2003, upon consideration of the motion and supplemental memorandum of defendant Cornell Tyler for acquittal, pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure, or in the alternative, for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure (Docs. 107, 150), the government's response in opposition thereto (Doc. 152), and the defendant's reply thereto (Doc. 153), it is hereby ORDERED that defendant Cornell Tyler's motion for acquittal, pursuant to Rule 29(c), or in the alternative, for a new trial, pursuant to Rule 33, is DENIED.