The opinion of the court was delivered by: Baylson, J.
MEMORANDUM RE: DEFENDANT'S MOTION FOR SEVERANCE AND RELATED MOTIONS
Presently before the Court are the following Motions filed by Defendant Kenneth Mitan ("Mitan"): Motion for Severance (Doc. No. 146), Amended Motion for Improper Joinder and for Severance (Doc. No. 205), Conditional Motion for Appointment of Ann Flannery as Attorney for Defendant Mitan on Perjury Charge (Doc. No. 207), and Conditional Motion for Bench Trial on Perjury Count (Doc. No. 208). For the following reasons, the Motion and Amended Motion for Severance shall be granted. The Conditional Motion to Appoint Ann Flannery shall be held under advisement, and the Conditional Motion for a Bench Trial shall be denied without prejudice at this time.
I. Factual and Procedural Background
On December 18, 2008, Mitan was indicted on six counts related to an alleged scheme to defraud small businesses. On March 6, 2009, this Court rejected Mitan's appeal from a decision by Magistrate Judge Strawbridge that Mitan be detained pending trial, as a flight risk. See Memo. Opinion (Doc. No. 91); United States v. Mitan, 2009 WL 604695 (E.D. Pa. Mar. 6, 2009). This Order was affirmed on appeal. United States v. Mitan, 09-cv-2089 (3d Cir. June 2, 2009; July 23, 2009).
As the Court's Memorandum details, one factor in the Court's decision to detain Mitan was his 2005 conviction in California for possessing a driver's license with an incorrect address. See Mitan, 2009 WL 604695, at *9-10. On March 19, 2009, Mitan filed a Motion for Reconsideration for Request for Release (Doc. No. 100), asserting that this Court had "reach[ed] conclusions which are not based on facts." In his Motion, Mitan attempted to explain the circumstances surrounding his California conviction and stated that he had received an affidavit from M.T. giving him permission to reside at the California address on the license in question. (Def.'s Mot. Reconsideration 10.) On March 30, 2009, the Government responded to Mitan's Motion, stating that in interviews with M.T., M.T. denied both providing such an affidavit to Mitan and granting Mitan permission to live at his home; M.T. further denied that Mitan had ever lived at M.T.'s address. (Govt's Omnibus Resp. 5-6, Ex. A, Doc. No. 108.) The Court denied Mitan's Motion for Reconsideration on April 2, 2009 (Doc. No. 115).
Mitan filed a renewed Motion for Release on Conditions on April 9, 2009, in which he proposed conditions and security for his release. Mitan also responded to the Government's contentions concerning M.T. and attached as Exhibit C an affidavit executed by Mitan that swore that M.T. had executed the affidavit giving Mitan permission to stay at his residence. (Def.'s Mot. Release 3-4, Ex. C, Doc. No. 118). In his Motion, Mitan contended that M.T. was not being truthful in the Government's interview and that the two men did in fact know each other and had an on-going business relationship. (Id.)
On April 23, 2009, a grand jury issued a Superceding Indictment (Doc. No. 133). The only change to the Superceding Indictment from the original indictment was the addition of Count VII, a perjury charge relating to Mitan's affidavit, Exhibit C to his Motion for Release on Conditions, which the Government alleged was materially false.
Mitan filed the instant Motion for Severance on April 29, 2009 (Doc. No. 146). He filed an Amended Motion for Improper Joinder and for Severance on June 5, 2009 (Doc. No. 205). The Government responded on July 2, 2009 (Doc. No. 228). Mitan replied on July 14, 2009 (Doc. No. 236). Mitan filed two related Conditional Motions to the Motion for Severance on June 5, 2009: a Conditional Motion for Appointment of Ann Flannery as Attorney for Defendant Mitan on Perjury Charge (Doc. No. 207) and a Conditional Motion for Bench Trial on Perjury Count (Doc. No. 208)
In the instant motion, Mitan seeks severance of the perjury count from the Superseding Indictment. He contends that the perjury count was misjoined under Fed. R. Crim. P. 8(a) because the allegedly perjured affidavit is unrelated to the alleged scheme to defraud. In the alternative, he argues that the perjury count should be severed under Fed. R. Crim. P. 14 because it will result in substantial prejudice in the scheme to defraud case because the perjury count will require testimony that may raise an inference of fraud.
The government argues that Mitan has not met the requirements of Rule 14 because he has made no showing of what his testimony would be regarding the perjury count and why such testimony would be prejudicial in the scheme to defraud case. The government also contends that all of the counts should be tried together because the perjury charge demonstrates Mitan's consciousness of guilt. The government does not address Mitan's Rule 8(a) misjoinder argument.
A. Legal Standard of Criminal Procedure Rules 8 and 14
Federal Rule of Criminal Procedure 8(a) governs joinder of offenses. ...