United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER
A. KIMBALL, United States District Judge.
matter is before the court on Defendant Luis Fernando
Soto-Leal's Motion to Sever Defendants. The government
opposed the motion and the time for Defendant to file a reply
has passed. Therefore, the court considers the motion fully
briefed. The court has considered carefully the memoranda
submitted by the parties, as well as the law and facts
relating to the motion. Now being fully advised, the court
issues the following Memorandum Decision and Order.
Luis Fernando Soto-Leal requests a severance of his case and
trial from his co-Defendant Leal-Castro, arguing that joinder
was improper in the first place and that severance is
necessary to prevent prejudice and to protect his right to
confront Leal-Castro at trial. Under Rule 14 of the Federal
Rules of Criminal Procedure, if joinder “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).
Indictment charges all defendants with conspiracy to
distribute controlled substances and possessing controlled
substances with intent to distribute. Federal Rule of
Criminal Procedure allows for joinder if the defendants
“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
conspiracy trial where the “evidence overlaps and the
offenses arise from the same series of acts or transactions,
” joinder is favored. United States v. Scott,
37 F.3d 1564, 1579 (10thCir. 1994), cert.
denied, 513 U.S. 1100 (1995). The Tenth Circuit
recognizes “a presumption in a conspiracy trial that
coconspirators charged together preferably should be tried
together.” United States v. Pursley, 577 F.3d
1204, 1215 (10th Cir. 2009).
relies on United States v. Hatcher, 680 F.2d 438,
440-41 (6th Cir. 1982), where the court held that
the trial court committed reversible error by not granting
severance because “the indictment on its face alleges
no connection between [one defendant] and the cocaine-related
charges against [another defendant.” Id. at
441. But, the Indictment in the instant case does not contain
charges related to only one defendant. All the charges in the
Indictment are alleged against all the defendants. Defendant
argues about the sufficiency of the evidence against him with
respect to those charges, but he is charged in the same
counts as the other Defendants. The court finds no basis for
concluding that joinder was improper under Rule 8.
is a preference in the federal system for joint trials of
defendants who are indicted together.” Zafiro v.
United States, 506 U.S. 534, 537 (1993). The Tenth
Circuit follows the general rule that individuals charged
together should be tried together. United States v.
Wright, 932 F.2d 868, 876 (10th Cir.),
cert. denied, 502 U.S. 962 (1991). Where defendants
have been properly joined under Rule 8(b), a district court
should only grant a severance “if there is 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.”
Zafiro, 506 U.S. at 539. Under Tenth Circuit law,
“A defendant wishing to obtain severance must show
actual prejudice at trial will result from failure to sever
the trials.” United States v. Sanders, 929
F.2d 1466, 1469 (10th Cir.), cert.
denied, 502 U.S. 846 (1991).
allegation that a “spillover effect” would
prejudice him if the jury heard evidence against his
co-Defendant is not sufficient to grant a motion to sever.
United States v. Morales, 18 F.3d 1213, 1219
(10th Cir. 1997). “Neither a mere
allegations that defendant would have a better chance of
acquittal in a separate trial, nor a complaint of the
spillover effect from that evidence that was overwhelming or
damaging against the co-defendant than that against the
moving party is sufficient to warrant severance.”
United States v. Small, 423 F.3d 1164, 1182
(10th Cir. 2005). Defendant's arguments that
the evidence against his co-Defendant will prejudice him,
therefore, is not sufficient to warrant severance.
other claim of prejudice is that a joint trial would
compromise his right to confront his co-Defendant and the
unidentified, uncharged co-conspirator. The government
intends to introduce wire intercepts as non-hearsay
co-conspirator statements in furtherance of the conspiracy.
But the Bruton rule “does not apply to
nontestimonial hearsay statements.” United States
v. Clark, 717 F.3d 790, 816 (10th Cir. 2013).
In Bruton, the court dealt with a co-defendant's
confession not statements. United States v. Hill,
901 F.2d 880, 883 (10th Cir. 1990); United
States v. Rogers, 652 F.2d 972, 976 (10th
Cir. 1981) (noting arguments in favor of extending the
rule's application to co-defendant's statements have
been rejected). The court finds no justification for
severance on confrontation grounds.
point, it would be improper for the court to determine the
weight of the evidence against Defendant aside from the
allegations in the Indictment. Based on the allegations of
the Indictment, the court finds no basis for severance.