The opinion of the court was delivered by: James F. McClure, Jr. United States District Judge
On October 25, 2007, a Grand Jury returned an indictment against Karen Sampson and two (2) other individuals, Dumfer Adjei-Frimpong and Aiziz Salam. (4:CR-07-421, Rec. Doc. No. 1). Count One of the indictment charged Sampson and her co-defendants with conspiracy to tamper with witnesses in another criminal matter, in violation of 18 U.S.C. § 1513(b)(2). Sampson and her co-defendants were also charged with additional counts of witness tampering, in violation of 18 U.S.C. §§ 1513(b)(2) and (c) and 18 U.S.C. §§ 1512(b)(2)(A) and (j). Defendant was arraigned and pled not guilty to the Indictment.
On August 18, 2008, a grand jury issued a Third Superseding Indictment in United States v. Best, et. al., a drug trafficking case, adding Sampson, Adjei- Frimpong and Salam as defendants to the Best case. (4:07-CR-389, Rec. Doc. No. 435). In addition to the original charges against Sampson and her original co-defendants, Count One of this Indictment charged them with conspiracy to distribute and possess with intent to distribute, more than fifty (50) grams of cocaine base known as crack, more than 500 grams of cocaine and an undetermined amount of marijuana, in protected zones, in violation of 21 U.S.C. §§ 846 and 860. Sampson was arraigned and entered a plea of not guilty. The government dismissed 4:07-CR-421 on August 20, 2008.
On October 1, 2008, Sampson filed this "Motion To Be Tried Separately From Original Defendants As A Result of Improper Joinder Under Rule 8(b), And In The Alternative For Severance Under Rule 14." (Rec. Doc. No. 533). A supporting brief was filed with the motion. The United States has failed to file a brief in opposition to defendant's motion. LR 7.6 of the Local Rules of the United States District Court for the Middle District of Pennsylvania reads in part as follows:
Any party opposing any motion shall file a responsive brief, together with any opposing affidavits, deposition transcripts or other documents within fifteen (15) days after service of the movant's brief, . . . Any respondent who fails to comply with this rule shall be deemed not to oppose such motion.
Although the government is therefore deemed not to oppose defendant's motion, we will review the motion on its merits. This motion is now ripe for disposition.
Sampson seeks misjoinder or severance on the grounds that he was improperly joined with the other defendants and that joinder is unduly prejudicial in this instance.
Rule 8(b) of the Federal Rules of Criminal Procedure states as follows:
(b) Joinder of Defendants
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). Rule 14(a) of the Federal Rules of Criminal Procedure states in relevant part as follows:
(a) Relief. If the joinder of . . . defendants in an indictment . . . appears to prejudice a defendant or the government, the court may . . . sever the defendants' trials, or ...