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United States v. Reese

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

August 1, 2017

UNITED STATES OF AMERICA,
v.
PATRICK BERNARD REESE, Defendant.

          OPINION AND ORDER

          WILLIAM S. DUFFEY JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant Patrick Bernard Reese's (“Reese”) Renewed Motion to Sever Defendants [207] (“Motion to Sever”).

         I. BACKGROUND

         On January 27, 2015, a grand jury in the Northern District of Georgia returned a five-count Indictment [1] charging Defendants Jason Philpot (“Philpot”) and Reese (together, “Defendants”) with aiding and abetting each other in Hobbs Act Robbery, in violation of 18 U.S.C. §§ 1951 and 2 (Count 1); using, carrying and discharging a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (Counts 2 and 3); and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Counts 4 and 5). The Indictment alleges that, on September 30, 2014, Defendants robbed a Waffle House restaurant in Tucker, Georgia. The firearm charges relate to the use and possession of firearms by Defendants during and after the robbery.

         In March 2015, Reese moved to sever his trial from the trial of Defendant Philpot on the charges on which he was indicted. ([28]). On February 8, 2017, the Court denied Reese's motion. ([101]). On the morning of July 31, 2017, the first day of trial, Philpot pleaded guilty to Count 1. ([209]). Later that day, Reese renewed his motion to sever on the grounds that Philpot “would testify favorably for [Reese] if their trials were severed.” ([207] at 2). The renewed motion largely is based on statements made by Philpot during his change of plea hearing.

         II. DISCUSSION

         A. Legal Standard

         “[T]he general rule is that Defendants indicted together should be tried together.” United States v. Chavez, 584 F.3d 1354, 1360 (11th Cir. 2009). Rule 14 of the Federal Rules of Criminal Procedure provides limited circumstances in which severance is permitted: “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). “The burden is on the defendant to demonstrate that a joint trial will result in specific and compelling prejudice to the conduct of his defense.” United States v. Schlei, 122 F.3d 944, 984 (11th Cir. 1997).

A defendant arguing for severance to permit a codefendant's exculpatory testimony must demonstrate: (1) a bona fide need for the testimony; (2) the substance of the desired testimony; (3) the exculpatory nature and effect of the desired testimony; and (4) that the co-defendant would indeed have testified at a separate trial. If the defendant makes this showing, then, to determine if severance is warranted, the district court must: (1) examine the significance of the testimony in relation to the defendant's theory of the case; (2) assess the extent of prejudice caused by the absence of the testimony; (3) consider judicial administration and economy; and (4) give weight to the timeliness of the motion.

United States v. Green, 818 F.3d 1258, 1280 (11th Cir. 2016). “Most motions for severance on th[e] ground [that defendant wishes to use the testimony of a codefendant] fail the test.” 1A Charles Alan Wright et al., Fed. Prac. & Proc. Crim. § 225 (4th ed. Apr. 2017 Update); see United States v. De La Paz-Rentas, 613 F.3d 18, 24 n.1 (1st Cir. 2010) (“Sanjurjo also argued below that joinder deprived him of the chance to have Molina testify for him, but such arguments are not usually successful.”).

         B. Analysis

         Reese moves to sever on the grounds that Philpot's testimony “would potentially exonerate him.” He argues that he “will be prejudiced in this trial if he is forced to be tried jointly with his co-defendant and therefore unable to compel [Philpot's] testimony.” ([207] at 3-4). Citing Philpot's sworn statements at his change of plea hearing, Reese claims Philpot would testify that “Mr. Reese did not participate in the robbery but rather that two other individuals entered inside the Waffle House with the intent to rob it.” ([207] at 2).

         Severance is not warranted here because Reese cannot meet his burden to show specific and compelling prejudice warranting severance. Schlei, 122 F.3d at 984. First, the Court finds Reese cannot demonstrate “the exculpatory nature and effect of the desired testimony.” Green, 818 F.3d at 1280. The testimony on which Reese relies is inculpatory and would not have the effect Reese claims. Reese is charged with committing, or aiding and abetting, a Hobbs Act robbery. Philpot's admission that he aided and abetted the September 30, 2014, robbery supports that Reese also is criminally responsible, if not principally responsible, for the robbery that occurred. Philpot testified, at his change of plea hearing, that he, Reese, and two other individuals drove to the Waffle House restaurant to commit the robbery. (Transcript of Jason Philpot's Change of Plea Hearing (July 31, 2017) [209] (“Tr.”) at 32-33). Philpot drove the “getaway car” and Reese was inside the vehicle. (Tr. at 33, 35). Philpot stated that two other individuals, in the car, entered the Waffle House “with the intent to rob” the restaurant. (Tr. at 32). Philpot testified that he knew “the Waffle House was going to be robbed, ” and that “it was going to be robbed with the use of a weapon by [his] co-defendant, Mr. Reese.” (Tr. at 31-32, 35). Philpot testified further that Reese “participate[d] in this robbery . . . to the extent that he was with [Philpot] and part of the gang that was going to rob the Waffle House.” (Tr. at 35). Philpot testified that he knew the two individuals who entered the Waffle House were armed, that they intended to use their weapons to “scare people into giving money over, ” that they left the Waffle House with “guns in their hands, ” and that Philpot knew “they had used those weapons to scare people inside.” (Tr. at 36-37).

         Reese seeks to characterize Philpot's testimony as exculpatory because it alleges that Reese remained in the car during the course of the robbery. This allegation is not exculpatory, certainly not significantly so, because (1) Philpot also testified that the Waffle House “was going to be robbed with the use of a weapon by [his] co-defendant, Mr. Reese, ” (2) Philpot testified that Reese “participate[d] in this robbery . . . to the extent that he was with [Philpot] and part of the gang that was going to rob the Waffle House, ” and (3) Philpot's other statements support that Reese aided and abetted the robbery alleged in Count 1 of the Indictment. See United States v. Baker, 432 F.3d 1189, 1240 (11th Cir. 2005) (denying severance because “[e]ven if [the co-defendant's] proffered testimony were admitted, it is dubious that it would have been enough to overcome” the evidence supporting defendant's guilt, and thus “the absence of [the co-defendant's] testimony was insufficiently prejudicial” to warrant severance). Philpot's testimony also is “of dubious credibility” because “it was in no way contrary to [his] own interests.” United States v. ...


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