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 Patrick Bernard
Reese's (“Reese”) Renewed Motion to Sever
Defendants  (“Motion to Sever”).
January 27, 2015, a grand jury in the Northern District of
Georgia returned a five-count Indictment  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.
March 2015, Reese moved to sever his trial from the trial of
Defendant Philpot on the charges on which he was indicted.
(). On February 8, 2017, the Court denied Reese's
motion. (). On the morning of July 31, 2017, the first
day of trial, Philpot pleaded guilty to Count 1. ().
Later that day, Reese renewed his motion to sever on the
grounds that Philpot “would testify favorably for
[Reese] if their trials were severed.” ( at 2).
The renewed motion largely is based on statements made by
Philpot during his change of plea hearing.
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
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.” ( 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.” ( at 2).
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)  (“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).
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.