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United States v. Philpot

United States District Court, N.D. Georgia, Atlanta Division

February 8, 2017

UNITED STATES OF AMERICA,
v.
JASON PHILPOT and PATRICK BERNARD REESE, Defendants.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant Jason Philpot's Motion to Sever Counts [24] and Motion to Sever Defendants [25], 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 [27].

         I. BACKGROUND

         Defendants 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 [27] at 2).

         Defendant 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 [25] at 2). Defendant Philpot also argues that severance is required because Defendant Reese “may raise defenses which are antagonistic to him.” (Id.).

         II. DISCUSSION

         A. Motions to Sever Counts

         Rule 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.

         Fed. R. 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.

         Fed. R. Crim. P. 14.

         “Rule 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).

         Charges, 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 ...


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