Bad Company – a Primer on Severance under the Federal Rules of Criminal Procedure

People define themselves by the company they keep. Early on, lawyers formed bar associations, doctors formed hospitals, and the skilled trades of Europe formed guilds, for everything from working leather to brewing beer. When people of different professions mingle, it has long been in the context of a social organization (Mozart and George Washington were each enthusiastic Masons in the 1780s), a religious denomination, or a representative body, from school boards to Congress. With the rise of social media, we now have the power to create vast online collections of friends, followers and connections that tend to place us with people of similar background and perspective. Technology builds group identities, virtual and also very real, even as it breaks down communication barriers.

For the criminal defense lawyer, it is far easier to defend an individual than explain away the actions of the larger criminal enterprise he allegedly belonged to. This is why the federal government’s preference is to cast the net widely, indicting as many participants as possible in a single Indictment, and then proceeding to a joint trial against those defendants willing to hazard the uncertainties of a federal trial. In a complex case that covers months or even years of alleged criminal activity, this practice, called joinder of offenses and defendants, tends to convey that all defendants are members of an ongoing criminal enterprise, even where a specific defendant’s involvement with the other players was limited, sporadic, or otherwise short of complete participation. The outcome is often guilt by association (good for the prosecutor, bad for the defense), and this is why the federal government routinely opposes a defendant’s request that he go to trial for the specific acts that he allegedly did, and not in the bad company of co-defendants who committed acts that were distinct in time, place and manner.

A neutral observer, new to federal criminal procedure, might assume that such a request (called a motion to sever) would be routinely granted, because we associate guilt by association with unfairness, whether reflected by an entire elementary class being denied recess because of the unruliness of a few, or by the hard labor and leg irons imposed on the physician who set the broken leg of John Wilkes Booth after President Lincoln’s assassin showed up at his door in the middle of the night.[1] However, federal courts uniformly hold that the danger of guilt by association, without much more, is not enough to support the severance of defendants or charges. See United States v. Phillips, No. 09-cr-202-03, 2009 WL 3150434, at *2 (E.D. Pa. Sept. 24, 2009) (“Absent extraordinary circumstances not present in this case, the possibility of guilt by association does not provide grounds for severance.”).

Instead, a federal District Court starts with the presumption that the jury will be able to sift through the charges and related evidence and connect them to the appropriate players, even in the context of a ten-defendant trial that covers years of alleged criminal activity. This article surveys the applicable rules of Federal Criminal Procedure, cases within the Third Circuit that interpret those rules, and approaches that may convince a judge to grant severance.

  • Misjoinder – when charges and defendants should not have been combined to begin with.

Federal Rule of Criminal Procedure 8 (b) (Joinder of Defendants) states in relevant part that “the indictment or information may charge two 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.” Fed. R. Crim. P. 8 (b). The Third Circuit Court of Appeals has instructed that under Rule 8(b), “[i]t is not enough that defendants are involved in offenses of the same or similar character; there must exist a transactional nexus in that the defendants must have participated in ‘the same act or transaction, or in the same series of acts or transactions,’ before joinder of defendants in a multiple-defendant trial is proper.” United States v. Walker, 657 F.3d 160, 169 (3d Cir. 2011), quoting United States v. Jimenez, 513 F.3d 62, 82-83 (3d Cir. 2008). Where charges leveled against only a single defendant “arose directly” from his or her participation in a common illicit enterprise which led to charges against that defendant and co-defendants, the Third Circuit has held that all of the charges may be considered part of the same series of acts, rendering joinder proper under Rule 8(b). See United States v. Riley, 621 F.3d 312, 334 (3d Cir. 2010). Predictably, the federal District Court in Philadelphia has held that “an allegation of conspiracy is sufficient to show there is a nexus between underlying substantive counts.” United States v. Moore, 14-cr-209-1&2, 2016 U.S. Dist. LEXIS 149199, * 35 (E.D. Pa., Oct. 27, 2016), citing United States v. Eufrasio, 935 F.2d 553, 567 (3d Cir. 1991); United States v. Somers, 496 F.2d 723, 729-30 (3d Cir. 1974).

The joinder of defendants and crimes in Walker (the Third Circuit’s latest published analysis of joinder issues) made sense. The co-defendants in that case, two brothers, were initially charged in a four-count Indictment alleging possession of cocaine base, drug trafficking, and possession of a prohibited firearm in connection in furtherance of drug trafficking. See id., 657 F.3d at 165. All of the criminal acts alleged against the Walkers in the initial Indictment preceded May 31, 2007. See id. The Government later added two additional counts (Counts V and VI) against both brothers arising from their attempted robbery of a crack cocaine dealer in the streets of Harrisburg on May 31, 2007. See id. These additional counts, for attempted robbery and using a handgun in connection with that robbery, were filed against the Walkers in a superseding Indictment. See id.

Defendant Barry Walker was ordered detained by a Magistrate Judge as a result of the new robbery and gun charges, but on July 10, 2017, he managed to escape from local custody in Harrisburg. See id. When re-arrested two days later on July 12, Barry was discovered with crack cocaine on his person, in a motor vehicle that he had entered for the purpose of selling crack to the another occupant. See id. As a result, the Government eventually charged Barry with two additional counts (Counts VII and VIII), for escape and distribution of crack cocaine, in which his brother, Barron Walker, was concededly not involved.

The Walker brothers went to a four-day jury trial, at the conclusion of which the jury found Barron and Barry Walker each guilty of Counts I through VI of the Superseding Indictment, and also found Barry Walker guilty of the escape and possession of crack cocaine charges at Counts VII and VIII of the same pleading. See id. at 166-167. On appeal, Barron Walker claimed that Counts VII and VIII filed against Barry Walker were misjoined to Barron’s charges under Federal Rule of Criminal Procedure 8 (b), because he was not personally involved in the escape and possession charges at issue in those counts. See id. at 169.

The Third Circuit disagreed, reasoning that if not for the underlying six charges filed against both brothers, Barry Walker would not have escaped, and then been caught in the act of selling crack cocaine in a vehicle at the time of his re-arrest. See id. at 170. The Third Circuit also noted “that the short span of time between the initial offenses and the two charges against Barry Walker – a period of a little over a month – further suggests that the various charges were part of the same series of transactions.” Id. at 170.

Walker is useful to defense counsel seeking severance, because in that case, each defendant (Barron and Barry Walker) participated jointly in an unbroken chain of offenses that culminated in the attempted robbery of the drug dealer on May 31, 2007. Id. The additional two charges at issue in Barron Walker’s challenge to joinder, for escape and possession of crack cocaine against Barry Walker only, arose after his escape from custody on the charges that had been filed against him and his brother, Barron. Id. Thus, there was every reason for the District Court to conclude that the jury was capable of separately considering the escape and drug possession evidence against Barry Walker only, because of the contrasting nature of the elements of those offenses and the supporting facts, each distinct from the charges filed against Barron Walker. Id.

In contrast to Walker, the author is currently defending a case where our client has been joined to an Indictment alleging 13 months of ongoing criminal conduct by six other defendants, based on the defendant’s commission of exactly three criminal acts on two dates, after which the sprawling, 75-page Indictment makes no further mention of our client for the remaining 7 months of the alleged conspiracy. Our client is simply not mentioned in 16 of the 20 counts of the Indictment, but the crimes alleged against all seven defendants, in all 20 counts of the Indictment, are the same. We are hopeful that these circumstances will persuade our judge to grant severance on grounds of misjoinder under Rule 8 (b). If not, the misjoinder in the case will provide a substantial ground for appeal if necessary.

  • Relief from prejudicial joinder – a higher hurdle

Federal Rule of Criminal Procedure 14 acts as a safety valve in situations where a joinder that is technically proper under Rule 8 (b) would nonetheless unfairly prejudice the defendant at trial: “If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires.” Fed. R. Crim. P. 14 (a). A District Court should grant severance under Rule 14 (a) where a defendant identifies a “serious risk that a joint trial would: (1) compromise a specific trial right of the defendant; or (2) prevent the jury from making a reliable judgment regarding guilt or innocence.” See United States v. Heilman, 377 Fed. Appx. 157, 199 (3d Cir., April 21, 2010), citing Zafiro v. United States, 506 U.S. 534, 538-39 (1993).

“The ‘critical issue’ in evaluating prejudice is whether the jury can compartmentalize the evidence, considering it only for the counts it pertains to.” Moore at **36-37, quoting United States v. John-Baptiste, 747 F.3d 186, 197-198, 60 V.I. 904 (3d Cir. 2014). “The jury’s ability to compartmentalize the evidence is affected by the complexity of the case, in terms of the number of charges and defendants, as well as the presence of technical or scientific issues.” Moore at * 37, citing United States v. Davis, 397 F.3d 173, 182 (3d Cir. 2005); United States v. Weber, 437 F.2d 327, 332 (3d Cir. 1970).

A defendant unable to prevail with a misjoinder argument under Rule 8 (b) may still argue that he has a “specific trial right” to preclude the jury from considering evidence in his case that is irrelevant to the charges against him. See Fed. R. Evid. 402; Fed. R. Evid. 403 (authorizing the preclusion of concededly relevant evidence on grounds of undue delay, jury confusion, and unfair prejudice). In addition, if a District Court denies severance under Rule 8 (b), counsel may still be able to raise judicial concerns that the jury will be unable to “compartmentalize” the evidence as to each defendant, particularly where the defendants (as is common even with legitimate associations) share the same age group, gender, and racial background. Counsel may also base an unfair prejudice argument on the likelihood that his client will spend far more time at trial distancing himself from the more extensive conduct of his co-defendants than defending the substantive claims against him.

  • Conclusion

The reluctance of federal District Courts to grant severance is likely related to the high frequency of guilty pleas in that venue. It is understandable that a judge would not want to turn one case into four if all eight defendants eventually plead guilty. For those defendants going to trial, however, severance where granted can terminate guilt by association, and provide benefits comparable to the suppression of evidence. Despite the challenges, defense counsel with a client determined to go to trial in a multi-defendant case should seek severance from the bad company of defendants likely to be more culpable or less sympathetic to the jury.

Richard H. Maurer

FLAMM WALTON HEIMBACH & LAMM, PC

794 Penllyn Pike, Suite 100

Blue Bell, PA 19422

215-419-1575

215-419-1560 fax

 

[1] The doctor in question, Samuel A. Mudd, M.D., was pardoned and released from custody in 1869 after four years in a military prison. Unable to prevail over widely-held suspicions that he had conspired with Booth, Dr. Mudd inspired the old saying for those experiencing insurmountable disgrace: “His name is Mudd.”

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Juries Play Fair (when the world doesn’t)

In business, politics and our daily commute, we see rampant power rewarded.  The business that destroys its competition is praised for being innovative and nimble, exemplifying the entrepreneurial spirit.  The politician who speaks the loudest and most blunt message, who interrupts and then drowns out his quieter debate opponent even though the rules say not to, is praised for single-minded focus.  The fastest driver of the biggest SUV forces his way through the traffic signal at Broad and Vine, while those of us lower to the ground get out of the way and wait our turn, anonymously.  I’m glad to say that juries don’t respond well to the rude behavior that so often carries the day in business, politics and driving.

I was fortunate to have obtained a defense verdict last month in a case where my client was charged with distribution of more than five lbs. of marijuana.  The weight-based sentence would have been substantial had defendant been found guilty, and our trial judge would have repaid my client’s insistence on a jury with an enhanced term of incarceration had we been required to proceed to sentencing.  My goal in this trial, as in all, was to be the honest guide, to explain to the jury what really happened by having my client testify, and to then call the passenger in his pickup truck to explain that neither of them had put the box of marijuana in the truck during a move-out that had been interrupted by a domestic dispute, that instead it was probably the action of the passenger’s jilted girlfriend, who had been given a large amount of marijuana by a friend to temporarily hide.  I didn’t presume to prove these facts with certainty, but merely to get enough supporting evidence into the record to argue that they were at least as plausible as the Commonwealth’s view of the world.

I conveyed my message through the Scylla of an overexcited and dismissive ADA, the Charybdis of an evidently prosecution-oriented judge, and a Commonwealth expert who, as he took the stand, eyed me as the Ogre from Grimm’s Tales, who was about to grind my bones to make his bread.  The expert had evidently won over juries hundreds of times.  The ADA needed to ask only the most basic questions on direct, and the expert took it from there, explaining how marijuana is packaged, how drug dealers industriously hide and guard it, and how this particularly large freezer bag filled with marijuana would have had a street value in excess of $6,000.  The questions I asked on cross were merely annoying, like mosquitoes on the porch in August.  The expert didn’t answer my questions, instead using them as jumping off points to further embellish what he had said on direct, a diving board from which to launch a cannonball jump into my pathetic case of excuses.  When I politely asked the expert to answer my question, the Judge reprimanded me in front of the jury for not listening to the answer, or for opening the door to testimony that had nothing to do with the question I had asked.  As my cross-examination progressed, his comfort on the stand increased, inversely to the discomfort I tried to mask by smiling a bit, and holding my hands quietly in front me as he droned on.  The only time this expert helped me was when he thought he was doing real damage – he agreed that drug dealers guard their stock in trade, hide it as well as possible, and don’t let anyone near it who might be a stranger.

It so happened that my would-be drug dealer did absolutely nothing to conceal or guard the diaper box filled with marijuana that ended up in the back of his pick up truck with the detritus of a North Philly cleanout, drove it through town in a vintage, backfiring borrowed truck with an expired registration sticker, and made no attempt to escape from police as they began following him down 55th Street towards Arch.  The jury was struck by this disconnect between my client’s behavior and what Mr. Big Expert had told them a drug dealer does, and they definitely were not impressed by the ADA who described the suggestion that the passenger’s girlfriend had secreted the marijuana in the truck bed as “crap” and “garbage.”

I learned several other valuable lessons by speaking with the jury after the verdict.  They did not appreciate the expert interrupting me, and as the Judge was reprimanding me for asking for an answer instead of a speech, the jury agreed that the expert answered almost none of my questions.  Far from impressed by the shock and awe tactics of this expert, the jury described them as disrespectful, arrogant, as not playing by the rules.  While the jury agreed (with reference to the adage that hell hath no fury like a woman scorned) that the passenger’s girlfriend could well have placed the box of marijuana in the pickup truck just before it drove off, they were concerned about what had happened to this woman – had she been the victim of retaliation by the drug dealer who had entrusted her with six lbs. of marijuana, only to have it vanish into police custody?  My answer was that as far as I knew from the witness, the woman was doing ok.  I also reassured them that my client had never been in trouble with the law before, and that he really was a registered nurse who did cleanouts and other odd jobs on weekends.

What the jury appreciated most was being provided with facts.  They watched intently as a police officer drew a diagram of where he had recovered the box of marijuana from the pickup truck loading bed, and agreed with the main point of my cross-examination: That his depiction had moved the box several feet closer to the passenger compartment, compared to the description he had given under oath a few minutes earlier.  I realized while talking with the jury, that if they if they had been guided by the rules of the Business Journal, of party politics, or of the road, me and my client would have been written off, and possibly laughed at in the process.  But the jury took seriously a duty they had sworn to uphold just before trial began – to do justice.  Thanks to their collective decision to honor the oath, this unlikely trial lawyer received another defense verdict.  I will remember them – the stern Vietnam vet, the student at Peirce College, the stay at home mom, the skeptical city worker, for a long time to come.