ORDER GRANTING MOTIONS TO SEVER PURSUANT TO RULE 14(a)

Re: Doc. Nos. 170, 171

PHYLLIS J. HAMILTON, District Judge.

On November 30, 2016, the court held a hearing on the motions to sever filed by defendants Dionte Houff and Jermaine Earnest, in which defendants Houston Nathaniel, III, and/or John Devalier Daniels joined. Having considered the relevant authority, the record and papers submitted by the parties, and the argument of counsel, the court GRANTS the motions to sever pursuant to Rule 14(a) of the Federal Rules of Criminal Procedure, for the reasons stated on the record and summarized below.

Houff, joined by Nathaniel, moves to sever his trial from the trial of Daniels and Earnest pursuant to Rules 8 and 14. Doc. no. 170. Earnest, joined by Nathaniel and Daniels, separately moves to sever the trial on the charges against Daniels and himself from the trial of Houff and Nathaniel pursuant to Rule 14. Doc. no. 171. The government opposes the motions to sever. Doc. no. 179.

The court determines that joinder of the charges against all four defendants is proper under Rule 8(b) based on the allegations of a racketeering conspiracy. United States v. Vasquez-Velasco, 15 F.3d 833, 843 (9th Cir. 1994). Houff's motion to sever on the ground of improper joinder pursuant to Rule 8 is therefore DENIED.

Pursuant to Rule 14(a), the court determines that a joint trial of all four defendants on all the counts of the superseding indictment would present a serious risk of prejudice and risk of jury confusion as to both sets of defendants: evidence supporting the substantive counts against Houff and Nathaniel, which include three separate shooting incidents in 2011 and the death of an infant, would be highly inflammatory and prejudicial as to Daniels and Earnest, who are not charged with any of the 2011 substantive crimes. Conversely, evidence supporting the charges against Daniels and Earnest based on a drive-by shooting in 2014 would have little probative value and would be unduly prejudicial as to Houff and Nathaniel in a joint trial, in light of the undisputed fact that Houff and Nathaniel were in custody at the time of the 2014 shooting. The court agrees with defendants that curative limiting instructions would not be sufficient to overcome the risk of prejudice and jury confusion in a joint trial, where the jury may be confused about weighing evidence of the 2011 shootings against Daniels and Earnest as racketeering acts to support the RICO count, but not as to guilt on the substantive counts; similarly, the jury could be confused about properly weighing the evidence of the 2014 shooting against Nathaniel and Houff. Because the substantive counts overlap with the racketeering allegations, the evidence as it relates to each individual defendant is not "easily compartmentalized," making it likely that a joint trial would unduly prejudice defendants. See United States v. Vasquez-Velasco, 15 F.3d 833, 846 (9th Cir. 1994).

In weighing the risk of prejudice against concerns for judicial economy, the court is most concerned with the burden and risk to potential fact witnesses. The government argues that the fact witnesses and victims who are expected to testify will be unfairly burdened by multiple trials, requiring them to testify more than once about violent acts and face increased risk of retaliation. Defendants respond that holding two separate trials would not present any greater risk to witnesses than a single trial, since the identity of the witnesses would be disclosed before the first trial. Furthermore, the two sets of shooting incidents involved different victims so that few, if any, witnesses or victims would likely have to testify at both trials, although the government represents that there may be some overlap of witness testimony as to both sets of shootings because the victims were believed to have been affiliated with the same gang that is a main rival of Acorn. Although joinder for trial would minimize risk and inconvenience for some fact witnesses, the court determines that joint trial of all four defendants would not promote judicial efficiency or serve the interests of justice because joinder of the two factually unrelated sets of murder counts and related charges, involving events three years apart, would extend the length of the trial by many weeks and require complicated limiting instructions, burdening the court and jurors.

The court anticipates that by severing Houff and Nathaniel from Daniels and Earnest for trial, the interests of justice will be better served than by a joint trial because the parties will be prepared to proceed to trial for Houff and Nathaniel more expediently. As counsel for Houff represented to the court, Houff and Nathaniel have had significantly more time than Daniels and Earnest to review discovery and prepare for trial on the 2011 substantive charges, and defense counsel have not yet reviewed all the discovery related to the 2014 substantive charges against Daniels and Earnest.

Accordingly, IT IS HEREBY ORDERED THAT the motions to sever are GRANTED pursuant to Rule 14(a), and defendants Houff and Nathaniel will be tried separately from defendants Daniels and Earnest.

IT IS SO ORDERED.