The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
Defendant Dale Lockwood ("Defendant") is charged, along with eleven other defendants, with conspiracy to possess with intent to distribute 5 kilograms or more of cocaine in violation of Section 846(a)(1) and 841(b)(1)(A) of Title 21 of the United States Code, all in violation of 21 U.S.C. §846. (Docket #1) Defendant was arraigned on March 3, 2011, at which time he entered a plea of not guilty. (Docket #2) The case was referred to Magistrate Judge Hugh B. Scott for all pre-trial proceedings.
A detention hearing was held on March 7, 2012. At that time, Magistrate Judge Scott determined that Defendant was a flight risk and presented a danger to the community, and ordered that he be detained pending trial. On September 27, 2011 Defendant moved for reconsideration of the detention order. (Docket #84) A motion hearing was held with respect to Defendant's request for reconsideration on December 2, 2011. (Docket #86) On March 28, 2012 Magistrate Judge Scott issued a Decision and Order denying Defendant's motion for reconsideration and ordering that Defendant was to remain in custody pending trial. (Docket #92)
In denying the motion for reconsideration of bail, Magistrate Judge Scott noted there were serious discrepancies between the information in Defendant's motion and the information he provided to pretrial services, and therefore the Court had serious concerns with Defendant's level of candor during his pretrial interview. Magistrate Judge Scott also found that Defendant presented a danger to the community, noting that at the time of Defendant's arrest, a bulletproof vest and seven loaded weapons, including an Uzi submachine gun and a defaced firearm, were found at Defendant's residence. The Decision and Order denying bail was not appealed by Defendant.
Pre-trial motions were resolved, with respect to all defendants, on or around March 27, 2012. A meeting to set a trial date was scheduled on March 28, 2012. On April 3, 2012, all twelve defendants, including Defendant Lockwood, appeared before this Court to select a date for trial. (Docket #94) At that time, the Government indicated that it anticipated that the trial would last about a month. The trial was then scheduled for February 12, 2013, since that was the first time that counsel for all defendants could be available. The Court questioned defense counsel regarding their unavailability. (Docket #94) The Court then determined that, in the interest of justice and due to the need to maintain continuity of counsel, the various periods of unavailability were properly excluded from the time in which the trial must commence pursuant to Section 3161(h)(7)(A) and Section 3161(h)(7)(B)(iv) of the Speedy Trial Act.*fn1 However, counsel for Defendant Lockwood objected to the February 2013 trial date because his client was in custody.*fn2 He indicated that he would be filing a motion for severance.
On May 21, 2012 Defendant Lockwood filed the instant motion requesting that his case be severed from the remaining co-defendants and an immediate trial scheduled. He argues that there will be unfair prejudice since he will have to remain in jail "during the anticipated period of extended pre-trial delay." For the following reasons, Defendant's motion for severance is denied.
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." A "non-frivolous" conspiracy charge is sufficient to support the joinder of defendants. United States v. Uccio, 917 F.2d 80, 87 (2d. Cir. 1990)
Federal Rule of Criminal Procedure 14(a) permits the district court to sever a defendant's trial if it appears that either the government or the defendant will be prejudiced by the joinder. Severance is a matter of discretion left to the district court. United States v. Stirling, 571 F.2d 708, 733 (2d Cir. 1978) A defendant bears the burden of showing that prejudice from a joint trial "is sufficiently severe to outweigh the judicial economy that would be realized by avoiding multiple lengthy trials". United States v. Walker, 142 F.3d 103, 110 (2d Cir. 1998) In fact, Rule 14 does not require severance even if prejudice is shown. United States v. Friedman, 854 F.2d 535, 563 (2d Cir. 1988) Instead, the defendant must show "prejudice so substantial as to amount to a miscarriage of justice". Id. at 563.
Defendant Lockwood maintains that failure to sever him from the other defendants will compromise his statutory and constitutional rights to a speedy trial, violate his rights under the Eighth Amendment of the Constitution and cause undue prejudice. The Court finds these arguments to be without merit.
Contrary to the arguments set forth in Defendant's motion papers, his right to a speedy trial does not mandate severance pursuant to Federal Rule of Criminal Procedure 14. Although the Speedy Trial Act states that a criminal defendant must be tried within 70 days of his indictment or initial appearance, Section 3161(h)(6) of the Act specifically allows for a "reasonable period of delay when a defendant has been joined for trial with co-defendants as to whom the time for trial has not run, and no motion for severance has been granted." See 18 U.S.C. §3161(h)(6); United States v. Blash, 43 Fed. Appx. 399 (2d Cir. 2002) The Second Circuit has confirmed that in multi-defendant cases, "there is a single speedy trial clock and ...delay attributable to any one defendant is charged against the single clock, thus making the delay applicable to all defendants". United States v. Pena, 793 F.2d 486, 489 (2d Cir. 1986)
Congress has acknowledged that the purpose of Section 3161(h)(6) of the Speedy Trial Act was to ensure that the rules of severance were not altered, and that the government was not forced to prosecute the first defendant ready for trial separately or be subject to a speedy trial dismissal action. Pena, F.2d at 489; A. Partridge, Legislative History of Title I of the Speedy Trial Act of 1974, at 134, 136 (1980) (Section 3161(h)(6) was enacted "to permit courts to continue their observation of judicial efficiency, by which defendants who are properly charged with the joint commission of an offense should ordinarily be tried together to save the time, inconvenience and expense of separate proceedings); United States v. Novak, 715 F.2d 810, 814 (3d Cir. 1983) ...