United States District Court, N.D. Georgia, Gainesville Division
Richard W. Story United States District Judge.
case is before the Court on the Report and Recommendation of
Magistrate Judge J. Clay Fuller [Doc. No. 288], I.
reviewing a Report and Recommendation, the district court
"shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made." 28 U.S.C.
§ 636(b)(1). "Parties filing objections to a
magistrate's report and recommendation must specifically
identify those findings objected to. Frivolous, conclusive,
or general objections need not be considered by the district
court." United States v. Schultz, 565 F.3d
1353, 1361 (11th Cir. 2009) (quoting Marsden v.
Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)) (internal
quotation marks omitted). Absent objection, the district
judge "may accept, reject, or modify, in whole or in
part, the findings and recommendations made by the magistrate
[judge]," 28 U.S.C. § 636(b)(1), and "need
only satisfy itself that there is no clear error on the face
of the record" in order to accept the recommendation.
Fed.R.Civ.P. 72, advisory committee note, 1983 Edition,
Subdivision (b). In accordance with 28 U.S.C. §
636(b)(1) and Rule 72 of the Federal Rules of Civil
Procedure, the Court has conducted a de novo review
of those portions of the R&R to which Defendants object
and has reviewed the remainder of the R&R for plain
error. See United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983).
Defendant Minh Nguyen (10)
Minh Nguyen has filed objections to the Report and
Recommendation [Doc. No. 290]. Specifically, he argues that
joinder is improper under Federal Rule of Criminal Procedure
8(b) and is unduly prejudicial under Federal Rule of Criminal
Procedure 14(b). The Court will address these arguments in
Federal Rule of Criminal Procedure 8(b)
Rule of Criminal Procedure 8(b) provides:
The indictment... 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.
Nguyen argues that the indictment does not allege and
evidence produced in discovery does not show that Defendants
are linked by a common "act or transaction, or in the
same series of acts or transactions."
satisfy this requirement, the Government "must
demonstrate that the alleged acts are united by substantial
identity of facts or participants; however, there is no
requirement that each participant participate in all acts or
even know the other participants' roles in the alleged
activities." United States v. Holloway, 971
F.2d 675, 679 (11th Cir. 1992). Moreover, joinder is proper
where, as here, the indictment charges multiple defendants
with participation in a single conspiracy. United States
v. Alvarez, 755 F.2d 830, 857 (11th Cir. 1985). The
general rule is that defendants indicted together should be
tried together, especially in conspiracy cases. United
States v. Chavez, 584 F.3d 1354, 1360 (11th Cir. 2009).
Significantly, Rule 8(b) is a pleading rule, and courts look
to the indictment to determine whether joinder is proper
under that rule. United States v. Liss, 265 F.3d
1220, 1227 (11 Cir. 2001); United States v. Melvin,
143 F.Supp.3d 1354, 1363 (N.D.Ga. 2015).
Court has conducted a de novo review. Here, the
indictment charges all Defendants with participating in a
conspiracy to manufacture, distribute, and possess with
intent to distribute marijuana and then charges each
Defendant with the substantive offense of manufacturing
and/or possessing marijuana with intent to distribute [Doc.
No. 1]. However, Defendant Nguyen correctly points out that
the Government has not provided substantial evidence of
common acts and transactions that link all of Defendants.
Instead, the Government points to, for example, evidence
regarding the joint purchase of a vehicle years before the
alleged conspiracy, evidence that may be explained by an
innocent explanation, such as economic links in a small
immigrant community. At this time, the Court is relying upon
representations made by the Government that these Defendants
are linked by more than just a common nationality, but if the
Government's evidence fails to establish the link, the
Court will reconsider the severance issue at the appropriate
time. In such event, Defendants may renew their motion.
Federal Rule of Criminal Procedure 14(a)
whether joinder is proper under Rule 8(b), Federal Rule of
Criminal Procedure 14(a) provides that "[i]f the joinder
of offenses or defendants in an indictment. . . 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."
Again, the Court acknowledges that there may indeed be a
prejudicial "spillover" effect depending upon
evidence produced by the Government that further links
Defendants. However, assuming the Government is able to prove
a conspiracy, the effect of that evidence is not sufficient
to warrant severance.