United States District Court, S.D. Georgia, Augusta Division
K. EPPS, UNITED STATES MAGISTRATE JUDGE
parties having resolved several pretrial motions, the Court
declares them MOOT. (Doc. nos. 10, 29-36.)
The Court DENIES Defendants' motions for
severance. (Doc. Nos. 28, 37.) When multiple defendants are
indicted, joined offenses must be reviewed initially under
the standard set forth under Fed. R. Crim. P. 8(b).
United States v. Souffrant, 517 Fed.Appx. 803, 811
(11th Cir. 2013); United States v. Grassi, 616 F.2d
1295, 1302 (5th Cir. 1980). Rule 8(b) provides:
The indictment or information may charge 2 or more defendants
if they are alleged to have participated in the same act or
transaction, or in the same series of acts or transactions,
constituting an offense or offenses. The defendants may be
charged in one or more counts together or separately. All
defendants need not be charged in each count.
Rule 8(b) is construed broadly in favor of the initial
joinder of defendants. United States v. Arneth, 294
Fed.Appx. 448, 451 (11th Cir. 2008) (citing United States
v. Weaver, 905 F.2d 1466, 1476 (11th Cir. 1990)).
Furthermore, there is a “‘well-settled principle
that it is preferred that persons who are charged together
should also be tried together . . . .'”
United States v. Green, 818 F.3d 1258, 1282
(11th Cir. 2016) (quoting United States v. Smith,
918 F.2d 1551, 1559 (11th Cir. 1990)). The Eleventh Circuit
has construed the “same series of acts or
transactions” language of Rule 8(b) to require the
government to “demonstrate that the acts alleged are
united by some substantial identity of facts and/or
participants.” Arneth, 294 Fed.Appx. at 451
(quoting United States v. Morales, 868 F.2d 1562,
1569 (11th Cir. 1989)).
Defendants do not contest they were properly joined in the
indictment as being involved in the same transaction. Indeed,
the indictment charges Count Three-possession of clonazepam
and marijuana-as a joint offense, and the remaining two
counts of the indictment charge each Defendant individually
with possession of a firearm by a prohibited person based on
alleged conduct on the same date as the joint offense.
(See doc. no. 1.) Thus, Defendants were properly
joined in one indictment, and Defendants' argument for
severance falls solely under Rule 14. (See doc. nos.
joinder under Rule 8 may nevertheless prejudice a defendant
or the government. Rule 14(a) 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 any
other relief that justice requires.” Rule 14 leaves the
determination of prejudice and a remedy, if necessary, to the
sound discretion of the district court. United States v.
Browne, 505 F.3d 1229, 1268-69 (citing Zafiro v.
United States, 506 U.S. 534, 541 (1993)). The Court must
order severance only where there is a serious risk that a
joint trial will compromise a specific trial right or prevent
the jury from making a reliable judgment about guilt or
innocence. Id. at 539 (quoting United States v.
Blankenship, 382 F.3d 1110, 1122 (11th Cir. 2004)).
even where prejudicial joinder is shown, Rule 14 does not
mandate severance; it is within the trial court's
discretion to determine the appropriate remedy. Id.;
Zafiro, 506 U.S. at 538-39. Usually, a limiting
instruction will suffice to cure any risk of prejudice.
United States v. Mosquera, 886 F.3d 1032, 1041 (11th
Cir. 2018) (citing United States v. Lopez,
649 F.3d 1222, 1235-36 (11th Cir. 2011); Zafiro, 506
U.S. at 539). Indeed, to receive relief under Rule 14, the
defendant must show “specific and compelling
prejudice.” United States v. Oscar, 877 F.3d
1270, 1290 (11th Cir. 2017) (quoting United
States v. Liss, 265 F.3d 1220, 1228 (11th Cir.
2001)). The courts have recognized that some degree of
prejudice is inherent in every joint trial, but “only
in the event such prejudice appears to be compelling does
severance become warranted.” United States v.
Harris, 908 F.2d 728, 736 (11th Cir. 1990) (citing
United States v. Roper, 874 F.2d 782, 789 (11th Cir.
1989)). The test for assessing compelling prejudice is
“whether under all the circumstances of a particular
case it is within the capacity of jurors to follow a
court's limiting instructions and appraise the
independent evidence against a defendant solely on that
defendant's own acts, statements, and conduct in relation
to the allegations contained in the indictment and render a
fair and impartial verdict.”
United States v. Bowers, 811 F.3d 412, 422 (11th
Cir. 2016) (quoting United States v. Walser, 3 F.3d
380, 386-87 (11th Cir. 1993)).
a defendant bears a “heavy burden” to establish
“actual, compelling prejudice” that cannot be
alleviated by the trial court and prevents the defendant from
having a fair trial. United States v. Chavez, 584
F.3d 1354, 1360 (11th Cir. 2009) (citations omitted). The
prejudice required to be demonstrated must be so specific and
compelling that the denial of severance would subject a
defendant to a fundamentally unfair trial. United States
v. Castronuovo, 649 Fed.Appx. 904, 918 (11th Cir. 2016);
United States v. Badolato, 701 F.2d 915, 923 (11th
Cir. 1983). Speculation or bare assertions of prejudice will
not suffice. Bowers, 811 F.3d at 424;
Zafiro, 506 U.S. at 539-40. Finally, a defendant is
not entitled to severance simply because separate trials on
his various offenses would provide a better chance of
acquittal. Id at 540.
are not entitled to severance under Rule 14 because they do
not demonstrate specific and compelling prejudice will result
otherwise. Defendants only argue “[r]equiring a joint
trial would unfairly prejudice this defendant.” (Doc.
nos. 28, 37.) Such generalized arguments are not sufficient
to warrant severance. Green, 818 F.3d at 1282
(“[C]onclusory . . . testimony is not the kind of
testimony that warrants severance.”); Bowers,
811 F.3d at 424 (finding district court did not err by
denying motion to sever where defendant could “only
speculate about the possibility of prejudice”);
United States v. Barsoum, 736 F.3d 1321, 1338 (11th
Cir. 2014) (rejecting argument for severance based on
the Court DENIES Defendants' motions to
sever. (Doc. nos. 28, 37.)