The opinion of the court was delivered by: Stephen C. Robinson, United States District Judge
Khalid, Tuere, and Dawud Barnes are three brothers who are alleged to have run a narcotics enterprise, known as the "Barnes Brothers Organization". All three are charged with a RICO offense, a RICO conspiracy, various narcotics offenses, firearms offenses, conspiracy to kidnap, conspiracy to murder, kidnapping, and attempted murder. Khalid and Tuere Barnes are charged with murder. Khalid Barnes is charged with participating in a Continuing Criminal Enterprise.
The parties have made various motions and requests, which this Court rules upon as follows:
Currently, the Government is seeking the death penalty for Khalid Barnes, but not for Tuere Barnes*fn1 or Dawud Barnes.
On August 18, 2006, this Court denied the defendants Tuere and Dawud Barnes' motions to sever the counts against them from the counts against their brother and co-defendant, Khalid Barnes, under Rule 14 of the Federal Rules of Criminal Procedure. Since that time, various events have taken place that have caused this Court to reconsider that decision.
To prevail on a motion to sever, the moving Defendants must overcome the "preference in the federal system for joint trials of defendants who are indicted together." Zafiro v. United States, 506 U.S. 534, 537 (1993). This preference for joint trials "is particularly strong where, as here, the defendants are alleged to have participated in a common plan or scheme." United States v. Salameh, 152 F.3d 88, 115 (2d Cir. 1998).
Accordingly, "a district court should grant severance under Rule 14 only if 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, 506 U.S. at 539. "[E]ven where there is a serious risk of prejudice, 'less drastic measures-such as limiting instructions-often suffice as an alternative to granting a Rule 14 severance motion.'" United States v. Stein, 428 F. Supp. 2d 138, 143 (S.D.N.Y. 2006) (quoting United States v. Feyrer, 333 F.3d 110, 114 (2d Cir. 2003)); see also Zafiro, 506 U.S. at 539 ("When the risk of prejudice is high, a district court is more likely to determine that separate trials are necessary, but . . . less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice.").
In its August 18, 2006, Order this Court found that the moving defendants had not shown how a joint trial here "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, 506 U.S. at 539. Therefore the moving defendants' motion for severance was denied.
However, since that time several facts have come to the attention of the Court which causes it to reconsider that decision. Dawud Barnes has been represented by Mr. Thomas Brooks, Esq., since his arrest. Originally Mr. Brooks was retained by Dawud Barnes. However, the Court converted him to CJA status when the length and complexity of this trial drained the resources and the ability of Dawud Barnes to pay for Mr. Brooks' services. Over the course of that representation Dawud Barnes has raised several concerns regarding the quality of the representation he has received. At a conference on December 7, 2007, Dawud Barnes stated that he had been unable to reach his attorney by telephone for a period of almost 18 months. Dawud Barnes indicated that when he left telephone messages for his attorney they went unreturned. It later appeared that the telephone number he had been provided by Mr. Brooks had been disconnected from service. Dawud Barnes further stated that Mr. Brooks visited him only a few times over the preceding 12 to18 months. Perhaps more importantly Dawud Barnes claimed that he requested that his attorney make an application to the Court for funds to engage a private investigator in order to have certain witnesses interviewed and to track down "newly discovered evidence". Mr. Brooks never made any such application to the Court. Such requests are routinely made to this Court in criminal cases and are often granted. The fact that Dawud Barnes believed making a request for a private investigator would be helpful to his case and Mr. Brooks failed to make the request or adequately address the issue with his client is problematic. Dawud Barnes also reported that Mr. Brooks missed a recent meeting among the co-defendants in the jail. He stated that Mr. Brooks did not prepare for the meeting with him and did not fully explain his absence.
In a case where a defendant is charged with crimes of this magnitude, it raises serious concerns for this Court when there has been so little contact between attorney and client and investigative and other preparatory steps have not been vigorously pursued. Such a gap in communication where the client legitimately seeks to discuss important aspects of his case is troubling.
Dawud Barnes, while sympathetic to the reasons for Mr. Brook's lapses, has indicated that he believes that too much time has passed for him to feel that he and Mr. Brooks can make up the time that has been lost. This Court agrees.
In light of the foregoing, and after considering the explanations Mr. Brooks has provided, this Court orders that Mr. Brooks is relieved as counsel for Dawud Barnes. The Court will appoint new counsel to represent him. Given the timing of this development, -- the trial is scheduled to begin within the next month -- the fact that there is voluminous discovery in this case, and considering the seriousness of the charges Dawud Barnes faces , the Court GRANTS defendant Dawud Barnes' motion to sever the counts against him from those ...