United States District Court, W.D. New York
DECISION AND ORDER
RICHARD J. ARCARA, District Judge.
Before the Court are defendants Arlene Combs, Albert Parsons, Dayon Shaver and Donald Griffin's motions for severance and separate trials pursuant to Federal Rule of Criminal Procedure 14(a). For the following reasons, defendant Shaver's motion for severance is denied. The remaining defendants' motions for severance are held in abeyance pending the Government's submission of revised redacted statements in accordance with the Court's decision as set forth below.
PROCEDURAL BACKGROUND AND RELEVANT FACTS
A Fourth Superseding Indictment ("Indictment"), filed on November 26, 2013, charges defendants Combs and Stewart, together with others, with engaging in a criminal enterprise whose purposes included "obtaining merchandise, both through a ring of organized shoplifters... and by robbery, and thereafter selling that merchandise at a substantial profit in interstate and foreign commerce using internet sites." The Indictment further alleges that on July 5, 2010, defendant Combs solicited defendants Parsons, Griffin and others to steal property from Homer Marciniak. Mr. Marciniak was assaulted during the robbery, and later died. It is also alleged that Combs willfully attempted to influence the testimony of certain witnesses.
Defendants Combs and Stewart are charged with participating in the conduct of the affairs of an enterprise through a pattern of racketeering activity as defined in Title 18, United States Code Sections 1961(1) and 1961(5) ("RICO") and RICO conspiracy. Defendants Combs, Parsons and Griffin are each charged with two counts of Violent Crime in Aid of Racketeering for the assault and felony murder of Mr. Marciniak. Defendants Combs, Stewart and Shaver are charged with conspiracy to transport stolen merchandise in interstate and foreign commerce, defendants Combs and Stewart are charged with transportation of stolen merchandise in interstate and foreign commerce, and defendant Combs is charged with witness tampering.
During the course of the investigation and prior to the filing of the Indictment, defendants Combs, Stewart, Parsons and Griffin each provided written statements to New York State police investigators implicating themselves as well as various co-defendants in the alleged crimes. Defendants Combs and Stewart each gave oral statements to special agents of the FBI that are both inculpatory and incriminating as to co-defendants. The Government contends that the six statements, while inadmissible at a joint trial in their original form, may be redacted and used during a joint trial without undue prejudice or a violation of defendants' Constitutional rights. The Government submitted proposed redacted versions of the six statements at issue.
Defendants Combs, Parsons and Griffin argue that the statements made by co-defendants implicate each other in a manner that cannot be corrected through redactions, and therefore admission of the statements in any form during a joint trial would violate defendants' Constitutional rights. Defendants further argue that the redactions proposed by the Government are insufficient because (1) even with the redactions, it is obvious who the speaker or author is referring to; (2) the Rule of Completeness bars the admission of the redacted statements in the manner proposed by the Government; and (3) use of the redacted statements unfairly prevents defense counsel from making an honest presentation of facts to the jury. Defendant Shaver, who is the only defendant not implicated in any of the statements, argues that she must be severed in order to avoid spillover prejudice.
Joinder and Rule 8
Federal Rule of Criminal Procedure 8 governs questions of joinder. United States v. Cervone, 907 F.2d 332, 341 (2d. Cir. 1990). Rule 8(b) provides that an indictment:
may charge 2 or more 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. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count[.]
See Fed. R. Crim. P. 8(b). There exists a "preference in the federal system for joint trials of defendants who are indicted together." Zafrio v. United States, 506 U.S. 534, 537 (1993). See also United States v. Feyrer, 333 F.3d 110 (2d. Cir. 2002) ("For reasons of economy, convenience and avoidance of delay, there is preference in the federal system for providing defendants who are indicted together with joint trials.")
The Second Circuit has interpreted the language of Rule 8(b) to mean that "joinder is proper where two or more persons' criminal acts are unified by some substantial identity of facts or participants' or arise out of a common scheme or plan'." United States v. Cervone, 907 F.2d 332, 341 (2d. Cir. 1990); quoting United States v. Attanasio, 870 F.2d 809, 815 (2d. Cir. 1989). In determining whether joinder is appropriate, district courts are urged to "apply a comonsense rule' to decide whether, in light of the factual overlap among charges, joint proceedings would produce sufficient efficiencies such that joinder is proper notwithstanding the possibility of prejudice as to either or both of ...