ORDER DENYING MOTION TO SEVER

PHYLLIS J. HAMILTON, District Judge.

This matter came on for hearing on October 5, 2016, on the motions to sever filed by defendants Victor Marr (doc. no. 146), Javier Sanchez (doc. no. 147), and Michael Marr (doc. no. 149). Counsel for Sanchez and Michael Marr withdrew their motions to sever based on the government's statements, both in its opposition brief and on the record, that the government will introduce only defendant Gregory Casorso's statements that do not directly refer to his codefendants and that only refer to Casorso's own role and participation in the charged bid-rigging conspiracy, as indicated in the highlighted portions of the witness interview report filed by the government, through the testimony of FBI Special Agent Deborah Bond. Doc. no. 176, Ex. A (filed under seal). The government indicated during the hearing that it would also seek to introduce a round sheet written by Casorso with names redacted, which was not submitted with the opposition papers. The court directed defense counsel to meet and confer with the government about the proposed redactions, and to file a stipulation if the parties resolved Sanchez and Michael Marr's challenges under Bruton v. United States, 391 U.S. 123 (1968), with respect to the round sheet.

Counsel for Victor Marr did not concede that the redactions were sufficient to avoid a Bruton violation, and argued that severance was proper under both Rule 8 and Rule 14 of the Federal Rules of Criminal Procedure. Victor Marr's motion to sever is DENIED for the following reasons:

1. Victor Marr has not shown that he was improperly joined with his codefendants under Rule 8, either under (1) the "overlapping evidence" test for whether "the common activity constitutes a substantial portion of the proof of the joined charges," or (2) the test for some "logical relationship" between the acts or transactions, beyond mere factual similarity, which may be shown by the existence of a common plan, scheme or conspiracy. United States v. Maranghi, 718 F.Supp. 1450, 1451-52 (N.D. Cal. 1989) (quoting United States v. Ford, 632 F.2d 1354, 1371 (9th Cir. 1980); United States v. Roselli, 432 F.2d 879, 899 (9th Cir. 1970)) (internal citations and marks omitted). Victor Marr argues that he will be prejudiced by joinder because he is only charged in the Alameda County bid-rigging count, and there is no overlap of proof between the alleged Alameda County conspiracy and the Contra Costa County bid-rigging conspiracy charged against Michael Marr and Sanchez.

First, the government has sufficiently demonstrated that evidence will overlap between both counts, showing that the system of bid-rigging worked the same way in both Contra Costa and Alameda counties, with the secondary rounds being operated in a similar way in both counties, and that witnesses will testify about both counties, making joinder proper. See Roselli, 432 F.2d at 899 ("Because of this large area of overlapping proof, trial economy and convenience were served by joinder, and because the area of proof that would be inadmissible at separate trials was relatively small, any additional prejudice to the defendants from the joinder was slight.").

Second, the government has shown that the transactions in both counties bear a logical relationship in that they occurred according to a common plan or scheme to rig the public auctions in both counties. See United States v. Vasquez-Velasco, 15 F.3d 833, 844 (9th Cir. 1994) ("A logical relationship is typically shown by the existence of a common plan, scheme, or conspiracy.") (internal citation and marks omitted). The common scheme was not merely carried out by a similar modus operandi, but involved many of the same participants in both counties and an agreement to refrain from bidding at the public auctions and to carry out the secondary rounds. The government has sufficiently shown that defendants have participated in "the same series of acts or transactions," making joinder proper under Rule 8(b).

2. Victor Marr moves to sever under Rule 14, arguing that his right to confrontation and cross-examination of codefendant Casorso would be violated under Bruton because Victor Marr acted at the direction of Casorso and Michael Marr, and that because the evidence will show that Victor Marr attended most of the rounds with Casorso, Casorso's admissions would be attributed to Victor Marr. Victor Marr's Bruton challenge falls squarely within Richardson v. Marsh, 481 U.S. 200, 207-08 (1987), limiting protection under the Bruton rule to "only those statements that `clearly inculpate' the defendant or are `powerfully incriminating,'" and subsequent Ninth Circuit authority following Marsh. See United States v. Hoac, 990 F.2d 1099, 1105 (9th Cir. 1993) ("this court has held that a co-defendant's statement that does not incriminate the defendant unless linked with other evidence introduced at trial does not violate the defendant's Sixth Amendment rights") (citing United States v. Sherlock, 865 F.2d 1069, 1080 (9th Cir. 1989), amended, 962 F.2d 1349 (9th Cir. 1992)). Based on the government's representations that defendant Casorso's statements will be introduced through Agent Bond's testimony, redacted to avoid any reference to the names of the other defendants, and subject to proper jury instructions, Victor Marr's motion to sever pursuant to Bruton is DENIED.

Victor Marr also seeks relief under Rule 14 on the ground that joinder would be prejudicial because he would be found guilty by association with his codefendants. His arguments that the great majority of the evidence relates only to the other defendants, and that his participation in rounds does not establish that he was a member of any criminal conspiracy, go to the weight of the evidence and do not demonstrate that joinder would be "`so manifestly prejudicial that it outweighs the dominant concern with judicial economy and compels the exercise of the court's discretion to sever.'" United States v. Doe, 655 F.2d 920, 926 (9th Cir. 1980) (quoting United States v. Brashier, 548 F.2d 1315, 1323 (9th Cir. 1976)). Proper instructions and a verdict form that would make clear that Victor Marr is only charged with conspiracy to rig bids in Alameda County, would minimize any risk that he would be found guilty based on evidence related to the Contra Costa County bid-rigging count. The government has demonstrated that joinder would not be prejudicial under the four-factor test set forth in United States v. Fernandez, 388 F.3d 1199, 1241 (9th Cir. 2004), modified by 425 F.3d 1248 (9th Cir. 2005):

Victor Marr's motion to sever pursuant to Rule 14 on the ground of prejudice is DENIED based on the court's finding that the public interest in judicial economy favors joint trial and weighs against severance, in the absence of a showing that joinder would be prejudicial.

IT IS SO ORDERED.