SUSIE MORGAN, District Judge.
This is criminal action charging twelve defendants with violations of the Racketeer Influenced Corruption Organization Act ("RICO"),
On September 19, 2013, a federal grand jury in the Eastern District of Louisiana issued a twenty-count indictment against twelve defendants.
Count 2 charges all defendants with a conspiracy beginning in or about 2008 to distribute and possess with the intent to distribute 280 grams or more of crack cocaine and non-specific quantities of heroin and marijuana. Count 3 charges the defendants with a conspiracy beginning in or about 2007 to possess and use firearms in furtherance of the crimes charged in Counts 1 and 2.
Count 4 charges Ervin Spooner with possessing a non-specific amount of marijuana with intent to distribute on or about November 11, 2008.
Counts 5 through 20 charge one or more of the RICO Defendants with various violations of the VICAR and the FGC. Counts 5 through 8 stem from an incident or series of incidents that occurred on or about February 24, 2010. Count 5 charges B. Jones and Patterson with the murder of Travis Arnold in order to increase their position and status in Ride or Die. Count 6 charges the two defendants with discharging an unknown firearm which caused the death of Travis Arnold, in furtherance of the crimes charged in Counts 1 and 2. Count 7 charges B. Jones and Patterson with assaulting an individual identified as "I.R." with a dangerous weapon in order to increase their position and status in Ride or Die. Count 8 charges B. Jones and Patterson with discharge of an unknown firearm in furtherance of the crimes charged in Counts 1 and 2.
Counts 9 charges B. Jones with assaulting an individual identified as "E.A." with a dangerous weapon on or about April 29, 2010 in order to increase his position and status in Ride or Die. Count 10 charges B. Jones with discharging an unknown firearm on or about April 29, 2010 in furtherance of the crimes charged in Counts 1 and 2.
Count 11 charges D. Jones with the murder of Rodney Coleman on or about November 9, 2010, in order to increase his position and status with Ride or Die. Count 12 charges D. Jones with discharging an unknown firearm which caused the death of Rodney Coleman, in furtherance of the crimes charged in Counts 1 and 2.
Count 13 charges D. Jones and Patterson with assaulting an individual identified as "J.J." with a dangerous weapon on or about January 6, 2011 in order to increase their position and status in Ride or Die. Count 14 charges D. Jones and Patterson with discharging a known firearm on January 6, 2011 in furtherance of the crimes charged in Counts 1 and 2.
Counts 15 through 17 stem from an incident or series of incidents that occurred on or about January 17, 2011. Counts 15 charges D. Jones with the murder of Devin Hutton in order to increase his position in Ride or Die. Count 16 charges D. Jones with discharging two unknown firearms and one known firearm which caused the death of Devin Hutton, in furtherance of the crimes alleged in Counts 1 and 2. Count 17 charges D. Jones with assaulting an individual identified as "V.G." with a dangerous weapon in order to increase his position and status with Ride or Die. Count 18 charges D. Jones with discharging two unknown firearms and one known firearm in furtherance of the crimes charged in Counts 1 and 2.
Count 19 charges D. Jones and Patterson with the murder of Corey Blue on or about January 18, 2011 in order to increase their position and status with Ride or Die. Count 20 charges the two defendants with discharging an unknown firearm and a known firearm which caused the death of Corey Blue, in furtherance of the crimes charged in Counts 1 and 2.
The instant Motions present two separate questions. The first is whether Counts 2 and 3 are properly joined with the other counts in the indictment. If so, the next question is whether joinder is so prejudicial as to warrant separate trials. The Court addresses each question in turn.
When reviewing a motion to sever, the preliminary inquiry is whether joinder was proper as a matter of law under Rule 8.
Counts 2 and 3 are properly joined with Count 1 and Counts 4 through 20. Count 1 alleges a broad RICO conspiracy to distribute controlled substances. Count 1 further alleges the use of guns and violence to accomplish the unlawful objects of the conspiracy.
Count 3 charges a conspiracy to use and possess firearms in furtherance of the conspiracies listed in Counts 1 and 2. Again, the RICO Defendants are also charged in Count 3. Furthermore, six of the seven non-RICO Defendants are alleged in the overt acts section of Count 1 to have possessed firearms on at least one occasion. And unlike Count 2, Count 3 alleges a specific connexity with Count 1.
Count 4 charges Ervin Spooner ("Spooner") with possession of marijuana with intent to distribute. Marijuana is one of the controlled substances in Count 2 that all defendants allegedly conspired to distribute. Spooner's possession count is also listed as an overt act in Count 1 in furtherance of the RICO conspiracy.
Counts 5 through 20 charge the RICO Defendants with various violations of the VICAR and the FGC. The acts described in Counts 6, 8, 10, 12, 14, 16, 18, and 20 were allegedly perpetrated in furtherance of the conspiracies charged in Count 1 and Count 2.
Given the foregoing, the Court finds that Counts 2 and 3 are properly joined with the other counts in the indictment. Although charged separately, the conspiracies alleged in Counts 1, 2, and 3, and the substantive violations charged in Counts 4 through 20 are part of a single plan or scheme: the distribution of controlled substances by any means necessary, including the threat and use of violence.
In United States v. Krout, seven defendants were tried jointly and convicted.
Like Krout, the indictment in this case charged a broad RICO conspiracy to distribute controlled substances and to use violence in furtherance of the conspiracy. Furthermore, as in Krout, a defendant not charged with RICO violations but who was charged in a separate count with conspiracy to distribute a controlled substance—the same substance distributed by the RICO enterprise—argued misjoinder. The Fifth Circuit rejected that argument in Krout; so too must this Court in the case sub judice.
United States v. Posadas-Rios provides further support for proper joinder.
If joinder is proper under Rule 8, Rule 14 affords the district court broad discretion to order severance if a joint trial would result in undue prejudice.
The non-RICO Defendants face an uphill battle to demonstrate prejudice. They argue that evidence of the violent acts in Counts 5 through 20 would create a spillover effect that will preclude the jury from impartially assessing the evidence against them. In other words, the non-RICO Defendants argue a joint trial with the RICO Defendants raises the specter of guilt by association. Unfortunately for the non-RICO Defendants, they have made their bed and now they must lie in it. Many of the acts of which the non-RICO Defendants complain (including the four murders) were allegedly perpetrated in furtherance of the drug conspiracy charged in Count 2—a conspiracy in which all named defendants are charged. The law is clear that "[w]hile the district court must guard against undue prejudice, it need not protect conspirators from evidence of their confederates' acts in furtherance of their common illegal aims."
But even if it were, the non-RICO Defendants have failed to demonstrate that any potential prejudice could not be cured by limiting the manner in which evidence is received at trial.
The motion to sever under Rule 14 fails for a third reason: any potential prejudice that could not be cured by instructions to the jury would be outweighed by the burden of trying this case more than once. The Supreme Court "has long recognized that joint trials conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial."
The counts in the indictment are substantially interrelated by common facts and participants. Joinder is proper under Rule 8. Therefore, the non-RICO Defendants bear a heavy burden to overcome the preference for joint trials. They have failed to meet this burden because any potential prejudice that could not be cured by cautionary instructions to the jury would be minimal at best and substantially outweighed by interests of judicial economy. Accordingly, severance under Rule 14 is not warranted.
For the reasons previously stated;