United States District Court, M.D. Georgia, Macon Division
T. TREADWELL UNITED STATES DISTRICT COURT
Everette Hill, Derrick Mosley, Jevon Deshawn Clark, and
Desmond Monterio Dennis, have moved for severance and for
separate trials pursuant to Federal Rule of Criminal
Procedure 14(a). Docs. 284; 289; 292; 295. For the reasons
stated herein, the motions are DENIED.
September 21, 2017, the grand jury indicted the moving
Defendants, along with 12 other defendants, in a 60 count
indictment. Doc. 249. Defendant Dennis was charged
with conspiracy to possess with intent to distribute cocaine
base and distribution of cocaine base. Id. at 2, 35.
Defendant Mosely was charged with conspiracy to possess with
intent to distribute cocaine base. Id. at 2.
Defendant Clark was charged with conspiracy to possess with
intent to distribute cocaine base and distribution of cocaine
base. Id. at 2, 23. Defendant Hill was charged with
conspiracy to possess with intent to distribute cocaine base,
distribution of heroin, possession of a firearm by a
convicted felon, and possession of a firearm in furtherance
of a drug trafficking crime. Id. at 2, 17, 18. The
moving Defendants ask that they each be tried separately.
Docs. 284; 289; 292; 295.
“defendants who are jointly indicted should be tried
together, particularly in conspiracy cases.” United
States v. Baker, 432 F.3d 1189, 1236 (11th Cir. 2005)
(citations omitted), abrogated on other grounds by Davis
v. Washington, 547 U.S. 813, 821 (2006). Federal Rule of
Criminal Procedure 14(a) specifies: “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.” “In
considering a motion to sever, the district court must
balance the prejudice that a defendant may suffer from a
joint trial, against the public's interest in judicial
economy and efficiency.” United States v.
Knowles, 66 F.3d 1146, 1158 (11th Cir. 1995) (quotation
marks and citation omitted).
Eleventh Circuit has provided a two-part inquiry to determine
whether severance should be granted. United States v.
Blankenship, 382 F.3d 1110, 1123 (11th Cir. 2004)
(citing Zafiro v. United States, 506 U.S. 534,
538-39 (1993)). First, the court must determine if the
defendant will indeed suffer prejudice from a joint trial.
Id. at 1122. If so, then the court must determine
whether severance is the proper remedy for that prejudice.
Id. Severance is only required when a defendant
“demonstrate[s] that a joint trial will result in
specific and compelling prejudice to the conduct of his
defense, ” which other curative measures cannot
mitigate. United States v. Schlei, 122 F.3d 944, 984
(11th Cir. 1997). Indeed, severance is only mandatory in two
scenarios: (1) where a joint trial leads to the denial of a
constitutional right and (2) where a joint trial would
prevent the jury from making a reliable judgment about the
defendant's guilt or innocence. Blankenship, 382
F.3d at 1123 (citing Zafiro, 506 U.S. at 539).
Defendants hold a “heavy burden” to prove
severance is mandatory, “which mere conclusory
allegations cannot carry.” United States v.
Hogan, 986 F.2d 1364, 1375 (11th Cir. 1993).
Defendants argue that severance is proper because (1) their
defenses will be tainted by the potentially voluminous
evidence against other co-defendants and (2) their defenses
are in conflict and antagonistic to those of other
co-defendants. Docs. 284 at 1-2; 289 at 1-2; 292 at 1-2; 295
at 1-2. Even assuming that the Defendants will suffer some
prejudice from these circumstances, the Defendants have not
established “specific and compelling prejudice to the
conduct of [their] defense” to require severance.
See Schlei, 122 F.3d at 984.
holding a joint trial when there is voluminous evidence
against other co-defendants does not deny defendants a
constitutional right. See Schlei, 122 F.3d at 984
(“The mere fact that there may be an enormous disparity
in the evidence admissible against [one defendant] compared
to the other defendants [does] not [require
severance].” (quotation marks omitted)). And a
defendant is not necessarily denied a constitutional right
when his defenses are antagonistic or in conflict with those
of jointly-tried co-defendants. Zafiro, 506 U.S. at
538-39 (stating that “[m]utually antagonistic defenses
are not prejudicial per se” and does not
have the moving Defendants, all of whom are alleged to be
members of the conspiracy, established that a jury could not
make a reliable judgment. In United States v.
Blankenship, the Eleventh Circuit described three
circumstances in which a jury could not make a reliable
judgment, none of which are present here. The Defendants have
not established there is evidence, which would not be
admissible against them but is admissible against one or more
of their co-defendants, that “is so convincing that not
even limiting instructions are likely to prevent the jury
from considering the evidence against all
co-defendants.” Blankenship, 382 F.3d at
1123-24. Next, this is not a case “in which the sheer
number of defendants and charges with different standards of
proof and culpability, along with the massive volume of
evidence, makes it nearly impossible for a jury to juggle
everything properly and assess the guilt or innocence of each
defendant independently. Id. at 1124. And finally,
none of the defendants are “charged with a crime that,
while somehow related to the other defendants or their
overall criminal scheme, is significantly different from
those of the other defendants.” Id. at 1125.
balancing the prejudice that Defendants may suffer from a
joint trial against the public's interest in judicial
economy and efficiency, the Court finds that severance is not
required and any prejudice to the Defendants may be
adequately mitigated through other curative measures.
the Defendants' motions to sever (Docs. 284; 289; 292;
295) are DENIED.