The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
Presenting pending before the Court is a motion by the defendant Stephanie Lloyd ("Lloyd") seeking the following relief:
1. To sever the trial of the defendant Lloyd from the co-defendant Laurell Lewis on the ground of "antagonistic and irreconcilable defenses";
2. Opposing the Government's motion in limine requesting a ruling on the admissibility of the 911 emergency call placed by an employee of the Postal Service; and
3. Objecting to the introductions of the testimony of co-conspirators Jeremy Hough ("Hough") and Jamel Thompson ("Thompson") because of the lack of "independent corroborating evidence of the defendant's participation in the conspiracy." Citing United States v. Tellier, 83 F.3d 578, 580 (2d Cir. 1996).
Also pending before the Court is a motion by the co-defendant Laurell Lewis ("Lewis") seeking a severance from co-defendant Lloyd in the upcoming trial.
For the reasons set forth below, the Court denies three of the motions and reserves decision on the co-conspirator motion.
The fifth superceding indictment ("the indictment") charges both defendants with three counts of violations of federal laws. The counts involve the alleged robbery at gunpoint of the Wyandanch Post Office ("the Post Office") in Wyandanch, New York on October 30, 2009. Count four charges both defendants with conspiracy to rob the Post Office ("the Post Office Robbery Conspiracy"), in violation of 18 U.S.C. § 371. Count five charges the defendants with the Post Office Robbery, in violation of 18 U.S.C. § 2114(a). Count six charges the defendants with brandishing of a firearm in connection with the Post Office Robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(ii).
The Government contends that the evidence at the trial will reveal that the defendant Lloyd was an employee of the Post Office during October of 2009, and that she provided confidential information about the security and inner-workings of the Post Office to her co-conspirators. Allegedly, she provided the confidential information to her co-conspirators Travis Walker ("Walker") and Sharod Williams ("Williams"), with the knowledge and understanding that the information she revealed would be used to rob the Post Office at gun point. The Government further alleges that Williams recruited Thompson to execute the actual robbery and that Thompson recruited Hough and the co-defendant Lewis to rob the Post Office, which they did, at gun point on October 30, 2009.
II. The Severance Motions
"There is a preference, in the federal system, for defendants who are indicted together to be tried together." See United States v. Diaz, 176 F.3d 52, 102 (2d Cir. 1999) (citing Zafiro v. United States, 506 U.S. 534, 537, 113 S. Ct. 933, 122 L. Ed. 2d 317 (1993), and United States v. Salameh, 152 F.3d 88, 115 (2d Cir. 1998)). Indeed, the Supreme Court has cautioned that district courts should grant a severance under Fed. R. Crim. P. 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. Ultimately, the decision to "sever a joint trial of federal defendants is 'committed to the sound discretion of the trial judge.'" Diaz, 176 F.3d at 102 (quoting United States v. Casamento, 887 F.2d 1141, 1149 (2d Cir. 1989)).
In a prior decision in this case dated September 22, 2011, the Court found it appropriate to sever the trial of Lloyd from an oncoming trial involving seven charged robberies; six in addition to the Post Office Robbery. In doing so, the Court ruled that Lloyd was alleged to have been involved in only one of the seven charged robberies and the Government did not even "suggest" that she was a primary member of the alleged multiple "robbery crew." The Court further stated:
Given the volume of evidence that is likely to be admitted in relation to the robberies that Lloyd and Lowery were not allegedly involved in, the Court finds that the risk of prejudice of these defendants is great. The Court further finds that other remedies, such as limiting instructions, will not suffice to protect these defendants' rights to a fair trial. The Court therefore directs that Lloyd and Lowery each be tried separately from their co-defendants and from each other.
Also, as correctly stated by the Government in its supporting memorandum of law,
Federal Rule of Criminal Procedure 8(b) provides for joinder of 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." Under this standard, "a non-frivolous conspiracy charge is sufficient to support joinder of defendants." United States v. Nerlinger, 862 F.2d 967, 973 (2d Cir. 1988). See also United States v. Rittweger, 524 F.3d 171, 177-78 (2d Cir. 2008) (multiple defendants properly joined in indictment that charged two conspiracies where the conspiracies evince a common plan or scheme, and there is a substantial identity of facts or participants); United States v. Stewart, 433 F.3d 273, 314 (2d Cir. 2006) (joinder of defendants proper where the case would otherwise have resulted in two essentially duplicate trials); United States v. Attanasio, 870 F.2d 809, 815 (2d Cir. 1989) (Rule 8(b) standard satisfied where charged counts were part of a series of acts that shared a common purpose and there was an overlap of participants and acts). In sum, multiple defendants may be charged with and tried for multiple offenses as part of a series of acts or transactions constituting offenses. United States v. Turoff, 853 F.2d 1037, 1043 (2d Cir. 1988).
The defendants contend that they would be prejudiced by their joinder in this trial. The Court disagrees. There are two separate theories in this upcoming trial involving a simple robbery. The Government contends that the defendant Lewis participated in the actual robbery, while the defendant Lloyd participated, as an employee of the Post Office, only as an informer of inside information. The Court sees no prejudice in the joint trial that is sufficiently severe to outweigh the judicial economy that would be realized by avoiding multiple trials. See United States v. Walker, 142 F.3d 103, 110 (2d Cir. 1998). In fact, the Court sees very little, if any prejudice, as to either defendant in this joint trial. As stated in the defendant Lloyd's letter memorandum, "in order to prevail, the defendant must show not simply some prejudice but substantial prejudice." United States v. Sampson, 385 F.3d 183, 190 (2d Cir. 2004). With reasonable certainty, even if the severance was granted, very similar evidence would be introduced in each of the trials.
As stated above, Federal Rule of Criminal Procedure ("Fed. R. Crim. P.") 8(b) provides for joinder of defendants "if they are alleged to have participated in the same act or transactions or in the same series of acts or transactions, constituting an offense or offenses." The conspiracy charge in this case with regard to the Post Office Robbery is a non-frivolous conspiracy sufficient to support joinder of defendants. United States v. Nerlinger, 862 F.2d 967, 972 (2d Cir. 1988). See also United States v. Stewart, 433 F.3d 273, 314 (2d Cir. 2006) (the joinder of defendants is proper where the case would otherwise have resulted in two essentially duplicate trials); United States v. Attanasio, 870 F.2d 809, 815 (2d Cir. 1989) (Rule 8(b) standard satisfied where charged counts were part of a series of acts that shared a common purpose and there was an overlap of participants and acts).
In addition, insofar as the defendants assert "antagonistic defenses," the Court finds no basis for a severance on that ground. The alleged involvement of each defendant is entirely separate. Defendant Lewis is alleged to have participated in an armed robbery of the Post Office. Defendant Lloyd is charged as an informant in the same conspiracy and robbery. Under these factual circumstances, it is difficult to conceive of a "antagonistic defense." An "antagonistic defense" is generally based on a situation where, in order to believe the testimony on behalf of one defendant, the ...