United States District Court, W.D. North Carolina, Charlotte Division
Cogbum Jr. United States District Judge
MATTER is before the Court on defendant's Motion
to Sever [and] Objection to Further
Continuances. Turning to the Motion to Sever, which has
now been fully briefed, the motion will be denied for the
reasons that follow.
Motion for Severance: Applicable Standard
to sever are governed by Rules 8 and 14 of the Federal Rules
of Criminal Procedure and require a two-step analysis.
See 8 Moore's Federal Practice, ¶ 13.03
at 13-9 (Matthew Bender). First, defendants must have been
properly joined by the Grand Jury in accordance with Rule 8.
Second, even if properly joined under Rule 8, joinder must
not be unfairly prejudicial to defendant when “weighed
against the court's interest in judicial economy”
under Rule 14. United States v. Adoma, No.
3:14-cr-00229-MOC, 2017 WL 220132, at *2 (W.D. N.C. Jan. 18,
Rule 8, joinder of defendants in one indictment is
appropriate “where the defendants are alleged to have
participated in the same act or transaction constituting an
offense or offenses against the United States.” Fed. R.
Crim. P. 8(a). The Fourth Circuit strictly adheres to the
principle that “when defendants are indicted together,
they should be tried together.” United States v.
Dinkins, 691 F.3d 358, 368 (4th Cir. 2012) (citing
United States v. Singh, 518 F.3d 236, 255 (4th Cir.
2008)); see also United States v. Medford, 661 F.3d
746, 753 (4th Cir. 2011) (“[T]here is a presumption in
favor of joint trials in cases in which defendants have been
indicted together.”); United States v.
Shealey, 641 F.3d 627, 633 (4th Cir. 2011). This
presumption is especially strong in conspiracy cases, such as
this one. See, e.g., United States v.
Lawson, 677 F.3d 629, 639 (4th Cir. 2012); United
States v. Brooks, 957 F.2d 1138, 1145 (4th Cir. 1992);
United States v. Tedder, 801 F.2d 1437, 1450 (4th
Cir. 1986) (“The gravamen of conspiracy is that each
conspirator is fully liable for the acts of all
coconspirators in furtherance of the conspiracy. Thus,
joinder is highly favored in conspiracy cases, over and above
the general disposition towards joinder for reasons of
efficiency and judicial economy.”). As such, severance
pursuant to Rule 14 is rarely granted. Dinkins, 691
F.3d at 368; United States v. Hornsby, 666 F.3d 296,
309 (4th Cir. 2012) (noting when offenses “are properly
joined under Rule 8(a), severance of the offenses is
calls for severance of claims or defendants if the joinder of
either is prejudicial. Any such prejudice must be weighed
against judicial economy. Defendants seeking severance face a
high burden. As the moving party, the defendant “must
establish that actual prejudice would result from a joint
trial.” United States v. Duke, 48 F.3d 763,
767 (4th Cir. 1995) (quotations and citations omitted).
Severance should be granted only where “there is a
serious risk that a joint trial would compromise a specific
trial right of one of the defendants, ” or to
“prevent the jury from making a reliable judgment about
guilt or innocence.” Shealey, 641 F.3d at 633
(“Appellant's theory of injury is indirect at best,
since it assumes that the delay strengthened the
Government's case and, in turn, weakened his own case.
But that fails to articulate any injury to ‘a specific
trial right.'”) (quoting Zafiro v. United
States, 506 U.S. 534, 539 (1993)). It is not sufficient
that defendant states he would have a better chance of
acquittal if severance were granted. Reavis, 48 F.3d
at 767. Prejudice exists where joinder is likely to infringe
on defendant's Sixth Amendment right to a fair trial.
Adoma, 2017 WL 220132, at *2 (citing United
States v. Boffa, 513 F.Supp. 444 (D. Del. 1980)). The
moving defendant must, therefore, show his joinder in
co-defendants' trial will impair his constitutional right
to a fair trial. 8 Moore's Federal Practice ¶
14.02, 14- 5, 6 (citing United States v.
LaRouche, 896 F.2d 815 (4th Cir. 1990)).
the first determination, Dodt does not challenge his joinder
as a co-defendant under Rule 8. In any event, the indictment
against Dodt and co-defendants allege that they were all
involved in the same acts and transactions with respect to
the same fraudulent venture and conspiracy. As such, the
Court finds that Dodt was properly joined as a defendant in
this case. As to the second determination, Dodt forwards a
number of arguments why severance is necessary to prevent
prejudice against him at trial or in reaching trial.
Sixth Amendment Right to a Speedy and Fair Trial
argues that his continued joinder with his codefendants will
impact his right to a speedy and fair trial as guaranteed by
the Sixth Amendment to the United States Constitution.
Essentially, defendant acknowledges that he himself has asked
for and received a number of continuances and, having been
allowed sufficient time to prepare, he is now ready trial. He
contends that if he is required to further wait for any of
his codefendants -- or codefendants who are fugitives but
captured before the next term - beyond the March 2019 term,
he will be denied his right to a speedy and fair trial.
action commenced on September 16, 2015, when the Indictment
was returned. Despite a warrant issuing that day for his
arrest, defendant did not first appear in this matter until
more than two years later on October 6, 2017, with
arraignment on October 12, 2017. (Defendant was arrested on
October 4, 2017, in Costa Rica.) Since that appearance,
defendant has filed the following motions to continue trial:
Motion to Continue (#144)
Motion to Continue ...