Yvonne Gonzalez Rogers, District Judge.
The United States of American brings this criminal action against Defendants Shawndale Tyrone Boyd ("Boyd") and Damian Sleugh ("Sleugh") (collectively, "defendants") charging defendants with: conspiracy to distribute marijuana (Count One), attempting to possess with the intent to distribute marijuana (Count Two); committing robbery that affects interstate commerce (Count Three); using, carrying, brandishing and discharging a firearm during and in relation to a drug crime and crime of violence (Count Four); and causing a death during the course of the crimes charged in counts 1 through 3 (Count Five). The indictment also charges Mr. Sleugh only with unlawfully possessing a firearm (Count Six).
Defendant Boyd has filed a motion to dismiss count one of the indictment, conspiracy to distribute marijuana on the grounds that the indictment did not contain an adequate statement of the facts underlying the charge, in which defendant Sleugh has joined. (Dkt. No. 65 ("MTD"); Dkt. No. 66.) Defendant Boyd has also filed a motion for severance on the grounds that his codefendant, Sleugh, made statements in recorded telephonic conversation concerning a "robbery gone bad" and that he told Boyd that they should stay away from one another. (Dkt. No. 64 ("MTS"); Dkt. No. 70 ("Reply to MTS").)
At issue in Boyd's motion to dismiss is the sufficiency of Count One of the indictment. In that count, the government charges both Boyd and Sleugh with conspiring to distribute marijuana (Count One). Count One alleges the following:
Boyd contends that the conspiracy alleged in Count One thus does not include a start date or a certain end date, nor does it allege any overt acts. (MTD at 4.)
Federal Rule of Criminal Procedure 7(c) sets forth the requirements for what must be contained in an indictment.
Fed. R. Crim. P. 7.
An indictment is typically sufficient if it sets forth the elements of the charged offenses. United States v. Fernandez, 388 F.3d 1199, 1217-20 (9th Cir. 2004). In considering a motion to dismiss an indictment, the Court may not look beyond "the four corners of the indictment in analyzing whether a cognizable offense has been charged." United States v. Boren, 278 F.3d 911, 914 (9th Cir.2002). An indictment is sufficient to withstand a defendant's motion to dismiss "if it contains the elements of the charged offense in sufficient detail (1) to enable the defendant to prepare his defense; (2) to ensure him that he is being prosecuted on the basis of the facts presented to the grand jury; (3) to enable him to plead double jeopardy; and (4) to inform the court of the alleged facts so that it can determine the sufficiency of the charge." United States v. Rosi, 27 F.3d 409, 414 (9th Cir.1994) (citation
Here, the Court finds that the indictment provides sufficient clarity to protect Boyd's rights. Count One of the indictment itself provides clarity of what exactly the conspiracy allegedly concerned and the end date (December 22, 2013),
Furthermore, the additional counts further reinforce that Count One is directed to a conspiracy to distribute marijuana relating to, and culminating in, the alleged robbery and killing. Reading the whole document with a view toward common sense, it is clear that Count One is directed to the conspiracy between the two defendants to engage in the sale of marijuana on or about December 22, 2013.
Defendant's reliance on United States v. Rodriguez-Gonzales, 358 F.3d 1156, 1159 (9th Cir.2004) is unpersuasive. There, the government was attempting to increase one count in the indictment from a misdemeanor to a felony—to alter substantively the nature of the crime charged and the consequences of a conviction—where that count in the indictment did not sufficiently provide notice that the charge could be a felony. The indictment did not make clear that a conviction on one charge would elevate a second charge to a felony, putting defendant at an obvious disadvantage in terms of notice and defense preparation. That is not the case here, where the events underlying the indictment in total, and as stated in Count One specifically, are well-understood by all parties.
So, too, is defendant's reliance on United States v. Cooper, No. CR 09-00156 SI, No. CR 13-00693 SI, 2014 WL 3784344 (N.D.Cal.2014) unpersuasive. There, the indictment lacked sufficient detail regarding when the conspiracy took place because the time frame was open ended in both directions, the identity of the co-conspirators was not included, and facts regarding what they were alleged to have done. Cooper, 2014 WL 3784344 at *4. Although defendants suggest that the lack of a clear end date was a sufficient reason for the court in Cooper to find the indictment lacking, the Court has reviewed this case and finds that there, the indictment's many deficiencies, particularly the lack of any identified co-conspirators, in conjunction,
Finally, defendants' argument that an overt act need be alleged in Count One does not persuade. Indeed, in what appears to be a concession, defendant does not argue the point further in his reply briefing. (See generally, Dkt. No. 71.) Regardless, proof of an overt act is not required to establish a violation of 21 U.S.C. § 846. United States v. Shabani, 513 U.S. 10, 17, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994). And for the reasons set forth above, the Court finds that Count One is sufficiently definite. The motion to dismiss is
At issue in Boyd's motion to sever is his contention that his defense will be incompatible with what he infers will be Sleugh's defense, and that Sleugh's statements to his girlfriend made while he was incarcerated present a Bruton issue. The Court first reviews the relevant legal standards on motions to sever, and then considers the specific theories offered by Boyd in turn.
Under Federal Rule of Criminal Procedure 8(b), "[t]he indictment or information may charge 2 or more defendants 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." When defendants are indicted together, the federal system evinces a preference for joint trials. See Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993); see also United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986) (recognizing that joint trials "conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial") (quoting Bruton v. United States, 391 U.S. 123, 134, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)). Only where joinder would create "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" must the Court grant severance. Zafiro, 506 U.S. at 539, 113 S.Ct. 933. Neither a joint trial with more culpable codefendants nor an improved possibility of acquittal in a separate trial is sufficient by itself to warrant severance. Fernandez, 388 F.3d at 1241 (citing United States v. Baker, 10 F.3d 1374, 1388 (9th Cir.1993), overruled on other grounds by United States v. Nordby, 225 F.3d 1053 (9th Cir.2000)). A joint trial is "particularly appropriate where co-defendants are charged with conspiracy, because the concern for judicial efficiency is less likely to be outweighed by possible prejudice to the defendants when much of the evidence would be admissible against each of them in separate trials." Fernandez, 388 F.3d at 1242.
Nonetheless, despite the propriety of joinder under Rule 8(b), a court may order severance if it finds sufficient prejudice exists to one or more of the defendants. Thus, Federal Rule of Criminal Procedure provides:
Fed. R. Crim. P. 14. In light of that legal framework, the Court now turns to the basis for the motion to sever.
A defendant is deprived of his Sixth Amendment right of confrontation when a facially incriminating confession of a non-testifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant. See Bruton, 391 U.S. at 126, 136-37, 88 S.Ct. 1620. Under Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), the Bruton rule is limited to confessions of a non-testifying codefendant that are facially incriminating of another defendant. Here, defendant's motion focuses on the anticipated proffer of the following statement recorded while Sleugh was incarcerated and speaking on the telephone with his girlfriend Asia Lee:
The Court finds that the statement at issue is not so "powerfully incriminating" that it falls within the scope of Bruton. Importantly, the statement here is not directly incriminatory. Unlike the statements at issue in Bruton and Richardson, it is not a confession directly referring to Boyd.
In some circumstances, "mutually antagonistic" or "irreconcilable" defenses may be so prejudicial as to mandate severance. Zafiro, 506 U.S. at 538, 113 S.Ct. 933 (citations omitted). "Mutually exclusive defenses are said to exist when acquittal of one codefendant would necessarily call for the conviction of the other." United States v. Tootick, 952 F.2d 1078, 1081 (9th Cir.1991) (citing United States v. Adler, 879 F.2d 491, 497 (9th Cir.1988)). "The prototypical example is a trial in which each of two defendants claims innocence, seeking to prove instead that the other committed the crime." Tootick, 952 F.2d at 1081 (citing United States v. Holcomb, 797 F.2d 1320, 1324 (5th Cir.1986)). The Ninth Circuit has instructed that "[m]utual exclusivity may exist when "only one defendant accuses the other, and the other denies any involvement." Tootick, 952 F.2d at 1081 (citing United States v. Romanello, 726 F.2d 173, 177 (5th Cir. 1984)). For a proclamation of innocence to constitute an accusation, the facts of the dispute must be closed in a fashion that does not suggest the intervention of some unknown actor.
However, "mutually antagonistic defenses are not prejudicial per se. Moreover, Rule 14 does not require severance even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district court's sound discretion. Zafiro, 506 U.S. at 538-39, 113 S.Ct. 933 (citing Lane, 474 U.S. at 449, n. 12, 106 S.Ct. 725; Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 99 L.Ed. 101 (1954)). As the Supreme Court indicated in Richardson, less drastic measures than a severance, such as limiting instructions, often will suffice to cure any risk of prejudice. Zafiro, 506 U.S. at 539, 113 S.Ct. 933 (citation omitted).
Here, Boyd argues that he and the co-defendant will present mutually antagonistic defenses. By definition, the Court must consider both defenses. On the one hand, Boyd submits that he intends to argue that co-defendant Sleugh acted alone and without his knowledge in planning to rob and kill the decedent. However, he does not go so far as to indicate that he has any direct knowledge of these events. Rather, it appears that the defense will be that, to the extent Sleugh is in fact guilty, he acted alone and without Boyd's knowledge. On the other hand, Boyd then speculates that Sleugh will argue that he was not present for, nor involved in, the robbery and killing, i.e. that Sleugh is denying the allegations. (Reply to MTS at 7.) Accordingly, at this juncture, there is no mutually antagonistic defense. Sleugh denies the allegations and Boyd has no knowledge of the events. Accordingly, the motion to sever on this basis is
Accordingly, the motions to dismiss and to sever are
This terminates Docket Nos. 64, 65.
