A defendant seeking severance under Fed.R.Crim.P. 14, bears the burden of showing prejudice will result from a joint trial of different offenses.
In considering the burden of separate trials to the parties and the court, the court has considered the extent to which there is overlapping evidence and whether it might be admitted under Fed.R.Evid. 404(b) or excluded under Fed.R.Evid. 403(a) but there is little overlapping evidence in the trial of these offenses. Having established defendant's judicial position at the time of both offenses, trial of each could proceed without duplication of admissible evidence. Therefore, the time to try both charges of this indictment separately will not take appreciably longer than trying both charges together. From this it can also be plausibly argued that the jury will have no difficulty compartmentalizing the evidence.
But in deciding the issue of prejudice, the court cannot ignore the nature of the Hobbs Act charge involved in this case. The government must prove that the defendant accepted money from the Business Manager of the Roofers' Union with the knowledge that it was given to him because of his official position. The government's memorandum in opposition to defendant's motions mentions conversations taped at the offices of the Roofers' Union containing "numerous references" to defendant to justify his receiving $ 500 as opposed to $ 300 received by some other judges. Because of the difficulty of proving guilty knowledge, it has been established that numerous recorded conversations involving other judges and other events must be ruled relevant and admissible at trial. United States v. Driggs, 823 F.2d 52 (3d Cir. 1987). This evidence, admissible on the Hobbs Act charge, would inevitably spill over to the unrelated issues and prejudice the defendant's right to a fair trial on the charges of insurance fraud. The court can think of no other practical reason for joinder of these charges in this indictment. Whether or not joinder is proper under Fed.R.Crim.P. 8, the court exercises its discretion to grant a severance in the interests of justice under Fed.R.Crim.P. 14.
An appropriate Order follows.
AND NOW, this 10th day of January, 1989, upon consideration of the motions of defendant for separate trial pursuant to Fed.R.Crim.P. 8(a) and 14, the government's response thereto, and for the reasons set forth in the foregoing Memorandum, it is ORDERED that;
1. Defendants' motion for a separate trial pursuant to Fed.R.Crim.P. 8(a) and 14 are GRANTED.
2. The court will try the mail fraud counts, Counts One to Ten, beginning March 6, 1989 and try the Hobbs Acts Count, Count Eleven, to a different jury immediately thereafter.
3. Requests for voir dire questions to the panel as a whole shall be submitted no later than 4:00 p.m. on March 3, 1989.