United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Jason Philpot's
Motion to Sever Counts  and Motion to Sever Defendants
, and Defendant Patrick Bernard Reese's Motion to
Sever Counts or, Alternatively, to Prevent the Government
from Offering Evidence on or related to Defendant Reese's
Prior Felony Conviction .
Philpot and Reese are charged with the Hobbs Act robbery of a
Waffle House on Lavista Road in Tucker, Georgia, in violation
of 18 U.S.C. § 1951(a) and (2) (Count One); using,
carrying, and discharging a firearm during and in relation to
a crime of violence, in violation of 18 U.S.C. §
924(c)(1)(C) (Counts Two and Three); and, being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g)(1) (Counts Four and Five). The counts all arise from
Defendants' alleged robbery of a Waffle House restaurant
on Lavista Road in Tucker, Georgia. Defendants move to sever
Counts Four and Five from the trial on Counts One, Two,
Three, and Four, or to preclude the Government from offering,
at trial, evidence of Defendant Philpot's or Defendant
Reese's prior felony convictions. Defendants argue that
admission of, or reference to, their past felony convictions
would “create a risk of unfair prejudice to the
defendant[s], ” requiring severance of these counts.
(Reese's Mot. to Sever Counts  at 2).
Philpot also moves to sever his trial from that of Defendant
Reese. Defendant Philpot argues that Defendant Reese
“has given statements to law enforcement officers,
regarding his participation in the [crimes charged]”
and that the “statements given by his codefendant refer
to and implicate Mr. Philpot.” (Mot. to Sever
Defendants  at 2). Defendant Philpot also argues that
severance is required because Defendant Reese “may
raise defenses which are antagonistic to him.”
Motions to Sever Counts
8(a) of the Federal Rules of Criminal Procedure allows for
the joinder of offenses in an indictment returned against a
defendant. Rule 8(a) provides:
The indictment or information may charge a defendant in
separate counts with 2 or more offenses if the offenses
charged-whether felonies or misdemeanors or both-are of the
same or similar character, or are based on the same act or
transaction, or are connected with or constitute parts of a
common scheme or plan.
Crim. P. 8(a). Rule 14 of the Federal Rules of Criminal
Procedure allows severance. It provides:
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 other relief that justice requires.
Crim. P. 14.
8(a) is broadly construed in favor of the initial
joinder.” United States v. Dominquz, 226 F.3d
1235, 1238 (11th Cir. 2000). Joinder of charges, including a
felon in possession of a firearm charge, is allowed where
there is a connection between the felony firearms possession
and the other offense or offenses charged. United States
v. Blanchard, 542 F.3d 1133 (7th Cir. 2008); United
States v. Johnson, 130 F.3d 1420 (10th Cir. 1997);
see also United States v. Mays, 466 F.3d
335 (5th Cir. 2006) (felon in possession and cocaine
distribution offenses not improperly joined since firearm and
cocaine found during same search).
however, may be severed if joinder prejudices the defendant.
Fed. R. Crim. P. 14(a). The relief under Rule 14 is available
where there is a showing that a joint trial will cause
defendant undue prejudice. United States v.
Marszalkowski, 669 F.2d 655 (11th Cir. 1982); see
also United States v. Buchanan, 930 F.Supp. 657, 667 (D.
Mass. 1996) (substantial prejudice required for severance).
The burden on the defendant to show that he will suffer
prejudice is a heavy one. United States v. Hogan,
986 F.2d 1364, 1375 (11th Cir. 1993). Claimed prejudice can
often be addressed by a court by appropriate limiting
instructions to assure a jury will consider the charge sought
to be severed separately and to not allow evidence or