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United States v. Pennington

August 30, 2006

UNITED STATES OF AMERICA,
v.
ERIC PENNINGTON, DEFENDANT



The opinion of the court was delivered by: Judge Kane

MEMORANDUM

Pending before the Court are Defendant Eric Pennington's two motions to sever his case from that of his co-defendants. (Doc. No. 353, 354.) The Government has filed a single brief in opposition and the motions are ripe for disposition. For the reasons that briefly follow, the motions will be denied.

I. Procedural History

On December 8, 2005, Defendant Eric Pennington and fifteen co-defendants were charged in a thirty-two count superseding indictment and subsequently arrested. (Doc. No. 20.) Defendant was charged with two counts in the superseding indictment. (Id., Counts I, II.) Count One charges Defendant, pursuant to 18 U.S.C. § 371, with conspiracy: (1) to transport individuals to engage in prostitution in violation of 18 U.S.C. § 2421; (2) to knowingly persuade, induce, entice, and coerce individuals to travel to engage in prostitution in violation of 18 U.S.C. § 2422(a); and (3) to travel and use facilities of interstate commerce with the intent to distribute the proceeds of unlawful prostitution and promotion of the unlawful act of prostitution in violation of 18 U.S.C. § 1952(a). (Id.) Count Two charges Defendant with traveling, and aiding and abetting the travel of individuals, to further the unlawful act of prostitution as well as promotion, management, and establishment of that unlawful act, all in violation of 18 U.S.C. §§ 1952(a)(3) and 2. On January 4, 2006, Defendant entered a plea of not guilty on all counts. (Doc. No. 100.)

On May 16, 2006, Pennington filed two separate motions to sever his case from those brought against the other defendants in this case. In the first motion, Pennington has moved for severance on the grounds that he would be calling co-defendants as witnesses. (Doc. No. 353.) In the second, Defendant requests severance on the grounds that he would be prejudiced if he were tried with his co-defendants. (Doc. No. 354.) Defendant submitted one brief in support of the motions, but this brief addresses only the issue of prejudice raised in the second motion. The Government filed a brief in opposition to both motions on July 7, 2006.*fn1

II. Factual Background

The superseding indictment charges that from at least February 2001 through December 8, 2005, Pennington, who also uses the street alias "Escalade," operated as a pimp in and around the Harrisburg, Pennsylvania area. (Indictment ¶¶ 1, 3, 10.102.) The indictment charges further that Pennington engaged in dealings with individuals from Harrisburg and Toledo, Ohio who were connected to an interstate prostitution ring. (Id. ¶¶ 10.1, 10.32, 10.102.) Specifically, the indictment charges that on several occasions Pennington received or sent funds related to the prostitution ring, controlled the actions of prostitutes, and on at least one occasion was himself sexually involved with an underage prostitute. (Id. ¶¶ 10.94, 10.100, 10.101, 10.102, 10.103, 10.91.) The indictment accuses Pennington of being involved in a series of telephone calls between April 13, 2005, and August 21, 2005, that connect his actions to the management and involvement in the unlawful enterprise of prostitution. (Id. ¶ 10.1.)

III. Discussion

In this case, Pennington has not challenged the validity of his joinder with other defendants pursuant to Rule 8 of the Federal Rules of Criminal Procedure. Rather, he has moved for severance pursuant to Rule 14(a) on two separate grounds: first, that his case should be severed from that of his co-defendants because he plans to call one or more of them to testify; and second, because he will be substantially prejudiced by being tried with all named defendants.

Rule 8(b) of the Federal Rules of Criminal Procedure provides as follows:

The indictment or information 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.

Fed. R. Crim. P. 8(b). The Supreme Court has stated that "[t]here is a preference in the federal system for joint trials of defendants who are indicted together." Zafiro v. United States, 506 U.S. 534, 537 (1993). This preference for joinder "promote[s] efficiency and serve[s] the interest of justice by avoiding the scandal and inequity of inconsistent verdicts." Id. at 537 (quoting Richardson v. Marsh, 481 U.S. 200, 210 (1987)); see also United States v. Eufrasio, 935 F.2d 553, 568 (3d Cir. 1991) ("The public interest in judicial economy favors joint trials where the same evidence would be presented at separate trials of defendants charged with a single conspiracy."). When considering a motion to sever, the Third Circuit has instructed that "participants in a single conspiracy should ordinarily be tried jointly as long as the jury can reasonably be expected to compartmentalize the evidence as it relates to separate defendants and notwithstanding that the evidence against one co-defendant is more damaging than that against another." United States v. Jackson, 649 F.2d 967, 973 (3d Cir. 1981) (internal quotation marks and citations omitted).

Notwithstanding the preference for joint trials, the Federal Rules of Criminal Procedure provide for severance in limited circumstances in order to avoid substantial prejudice to a criminal defendant. Rule 14 of the Federal Rules of Criminal Procedure provides, in relevant part: "[i]f the joinder of offenses or defendants in an indictment . . . appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires." Fed. R. Crim. P. 14(a). Where defendants have been properly joined pursuant to Rule 8(b) of the Federal Rules of Criminal Procedure, "a District 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 would prevent the jury from making a reliable judgment about guilt or innocence." Zafiro, 506 U.S. at 539. The party seeking severance bears the burden of demonstrating that a joint trial will cause clear and substantial prejudice, resulting in a manifestly unfair trial. United States v. Voigt, 89 F.3d 1050, 1094 (3d Cir. 1996). The Supreme Court has noted that although separate trials may be warranted where the risk of prejudice is substantial, in many cases "less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice." Zafiro, 506 U.S. at 539. See also Voigt, 89 F.3d at 1096 (noting effectiveness of limiting instruction in which court directed jury to consider each count separately); United States v. Console, 13 F.3d 641, 655-56 (3d Cir. 1993) (limiting instructions can help the jury to "compartmentalize" the evidence as it relates to each defendant).

In his motions, Pennington asserts two independent bases in support of his request to sever his trial from that of his co-defendants. First, Pennington states that he plans to call co-defendants as witnesses. Second, Pennington argues generally that he will be prejudiced if his trial is joined together with that of his co-defendants. As noted previously, Defendant filed one brief in support of these motions and in that brief he did not provide support for his motion to sever on the ...


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