The opinion of the court was delivered by: Hon. Kiyo A. Matsumoto United States District Judge
Defendant Chen Kuo ("Kuo") and co-defendant Yan Hua Jiang*fn1
("Jiang") are charged by a September 1, 2010 indictment with
one count of conspiring to obstruct, delay and affect commerce, and
the movement of articles and commodities in commerce, by extortion,
and one count of attempting to obstruct, delay and affect commerce,
and the movement of articles and commodities in commerce, by
extortion, in violation of 18 U.S.C. §§ 1951(a)*fn2
and 3551*fn3 et seq. (See ECF*fn4 No.
("Ind‟t").) Now before the court are Defendant Kuo‟s motion pursuant
to Rule 14(a) of the Federal Rules of Criminal Procedure*fn5
to sever his trial from the trial of co-defendant Jiang and
motion for disclosure of "other crimes, wrongs or acts" evidence
pursuant to Rule 404(b) of the Federal Rules of Evidence. (ECF No. 22,
Notice of Mot. ("Mot.").) For the reasons set forth below, defendant
Kuo‟s severance motion is denied.*fn6 The court has
scheduled submissions for the government‟s 404(b) disclosures by order
dated November 10, 2010. (See ECF Minute Entry dated 11/10/10.)
As set forth in the Complaints, the Indictment, and other government
submissions, the alleged facts are as follows:
In approximately January or February 2010, Target Bus Company began
competing with an existing bus company owned by John Doe #1 ("Victim Bus Company"). (See ECF No. 1,*fn7
Sealed Complaint as to Jiang ("Jiang Compl.") ¶¶ 2-3; ECF No.
1,*fn8 Sealed Complaint as to Kuo ("Kuo Compl.") ¶¶
2-3.) Both companies provide transportation services for restaurant
workers from New York City to Poughkeepsie, New York. (Id.) Restaurant
owners and workers in Poughkeepsie, New York received business cards
from Target Bus Company that looked almost identical to the business
cards from Victim Bus Company. (Jiang Compl. ¶3; Kuo Compl. ¶ 3.) The
Target Bus Company cards contained two telephone numbers, one of which
allegedly belongs to defendant Kuo. (Kuo Compl. ¶ 3.)
Between February 2010 and August 2010, employees from Target Bus
Company allegedly attempted to force Victim Bus Company customers to
switch companies by taking their cell phones and telling customers
that the phones would be returned only if they began to use the
services provided by Target Bus Company. (Jiang Compl. ¶ 4; Kuo Compl.
¶ 4.) Further, on several occasions, Target Bus Company vehicles
allegedly parked against Victim Bus Company‟s vehicles in order to
prevent them from loading passengers. (Jiang Compl. ¶ 5; Kuo Compl. ¶
In February 2010, co-defendant Jiang allegedly drove up to a Victim Bus Company van and told John Doe #1 that if Jiang found John Doe #2, a Victim Bus Company driver, he would "break his legs." (Jiang Compl. ¶ 6; Kuo Compl. ¶ 6.) Around that same time period, Jiang also allegedly threatened John Doe #2 by approaching him at a gas station and asking "are you afraid of dying[?]" (Jiang Compl. ¶ 8; Kuo Compl. ¶ 8.) In June 2010, John Doe #1 was attacked by three individuals with baseball bats and was severely injured. (Jiang Compl. ¶ 9; Kuo Compl. ¶ 9.) John Doe #1 identified defendant Kuo as one of his attackers and further identified Kuo as an individual who he had seen driving a Target Bus Company van belonging to Jiang. (Kuo Compl. ¶ 10.) The following month, on July 19, 2010, at approximately 1:00 a.m., John Doe #1 received a telephone call in which the caller threatened to kill John Doe #1‟s family. (Jiang Compl. ¶ 10; Kuo Compl. ¶ 11.)
The government claims that Jiang made several oral statements following his arrest. (See ECF No. 24, Gov‟t Resp. in Opp‟n to Mot. to Sever ("Opp‟n") at 1.)*fn9 Specifically, relevant to the instant motion, Jiang allegedly made the following statements: (1) In June 2010 he partnered with Kuo, whom he knew as "Stupid," to operate the bus company that transported restaurant workers from New York City to Poughkeepsie, New York, competing with the Victim Bus Company, owned by John Doe #1; (2) Kuo complained that business was slow and suggested that they "beat up" John Doe #1, and Jiang advised against this suggestion; (3) Days later, Kuo met with a third business partner to discuss the beating of John Doe #1, and expressed concern that John Doe #1 would recognize them from the beating; and (4) The phone number (845) 775-0019, from which the threatening call to John Doe #1 on July 19, 2010 was made, belongs to Kuo, and Jiang made several calls before and after 1:00 a.m. on July 19, 2010 to that phone number. (Id. at 1-2.)
Defendant Kuo requests a separate trial from co-defendant Jiang, arguing that these statements made by Jiang "expressly implicate" Kuo in the alleged offenses and that the potential introduction of such "powerfully incriminating" statements of a non-testifying co-defendant at trial would prejudice Kuo and deprive him of his Sixth Amendment right of confrontation. (See ECF No. 22-1, Mem. of Law in Supp. of Def.‟s Pre-Trial Mot. ("Mem. in Supp.") at 2-3.)*fn10 The government opposes the motion to sever trial, arguing that admission of the co-defendant statements with redactions would not violate Kuo‟s rights under the Sixth Amendment. (See Opp‟n at 2-5.) Defendant Kuo did not file a reply in support of his motion for severance, despite the opportunity to do so, to address the issue of redaction. (See Ltr. dated 11/22/10 (stating that defendant Kuo declines to file any reply).)
For the reasons that follow, the court finds that redaction of identifying information as to Kuo from the co-defendant statements eliminates any Confrontation Clause concerns and severance is consequently not warranted. The court denies Kuo‟s motion under Rule 14(a) to server his trial.
"There is a preference in the federal system for joint trials of defendants who are indicted together" because joint trials "promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." Zafiro v. United States, 506 U.S. 534, 537 (1993) (internal quotation marks and citation omitted); see also Richardson v. Marsh, 481 U.S. 200, 210 (1987) ("It would impair both the efficiency and the fairness of the criminal justice system to require . . . that prosecutors bring separate proceedings, presenting the same evidence again and again, requiring victims and witnesses to repeat the inconvenience (and sometimes trauma) of testifying, and randomly favoring the last-tried defendants who have the advantage of knowing the prosecution‟s case beforehand."). "This preference 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) (per curiam).
Indeed, where joinder is proper,*fn11 a court "should grant a 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. Thus, a defendant seeking severance "must show prejudice so severe as to amount to a denial of a constitutionally fair trial." United States v. Spinelli, 352 F.3d 48, 55 (2d Cir. 2003) (internal quotation marks and citation omitted). Yet, the possibility of prejudice alone does not necessarily mandate severance pursuant to Rule 14. ...