actually being present in the United States, the charged crime of illegal re-entry was sufficiently related to the other offenses for the purposes of joinder under Rule 8(b). Id. at 563. This court finds this reasoning articulated in Brown to be persuasive and therefore, the court will deny the defendant's motion seeking severance of Count 15.
b. motion for severance from other defendants
As stated previously, the defendant has also requested a severance from the remaining defendants. A defendant seeking such a severance must shoulder the difficult burden of showing that the prejudice to him from joinder is sufficiently severe to outweigh the judicial economy that would be realized by avoiding lengthy multiple trials. See, United States v. Panza, 750 F.2d 1141, 1149 (2d Cir. 1984); United States v. Losada, 674 F.2d 167, 171 (2d Cir. 1982), cert denied, 457 U.S. 1125, 102 S. Ct. 2945 (1982). The moving party must show "substantial prejudice" which must be more than evidence of "a better chance of acquittal" if severance was granted. United States v. Potamitis, 739 F.2d 784, 790 (2d Cir. 1984). Severance should only be granted where "there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro v. United States, 122 L. Ed. 2d 317, U.S. , 113 S. Ct. 933, 938 (1993).
In this case, the defendant has not presented a specific trial right that would be compromised as a result of a joint trial. The defendant's bald assertion that he will be prejudiced by a joint trial does not rise to a level necessary for severance. Accordingly, because the defendant has not shown any indicia that a specific trial right would be denied by a joint trial, or that the jury would not be able to make a proper judgment about his guilt or innocence if severance was not granted, the court feels severance of defendants is not warranted.
In sum, after review and consideration of the papers submitted by the parties, it is hereby ORDERED that the defendant's motion for severance based upon the misjoinder of counts and misjoinder of defendants is denied.
IT IS SO ORDERED.
Dated at Binghamton, New York
May 7, 1994
Thomas J. McAvoy
© 1992-2004 VersusLaw Inc.