The opinion of the court was delivered by: (Chief Judge Kane)
On July 29, 2009, a grand jury returned a superceding indictment charging Defendants Shawn Cooya and Ritz Williams with first-degree murder. (Doc. No. 155.) The Government filed a notice of intent to seek the death penalty against each Defendant on July 30, 2009. (Doc. Nos. 161, 162.) Presently pending before the Court is Defendant Cooya's supplemental motion to sever his trial and any potential penalty phase proceedings from that of his co-Defendant Williams in the above-captioned action. (Doc. No. 450.) The motion has been fully briefed and is ripe for disposition. For the reasons stated more fully herein, the Court will deny Defendant Cooya's motion.
Defendants Cooya and Williams and the victim Alvin Allery were at all times relevant to this motion prisoners at the Allenwood Federal Correctional Complex ("AFCC"). (Doc. No. 450 ¶ 1.) On September 28, 2005, Defendants Cooya and Williams were captured on videotape walking in an internal corridor at the AFCC with Allery. (Id. ¶¶ 1, 3-6.) The videotape shows Defendant Cooya grabbing Allery from behind and pinning his arms behind his back while Defendant Williams swings his right arm repeatedly towards Allery's upper torso, stabbing him. (Id. ¶ 8.) Next, the videotape shows Allery falling to the floor, and Defendants Cooya and Williams repeatedly kicking him until prison authorities intervene. (Id. ¶¶ 8-9.) An autopsy revealed that Allery had been stabbed ten times. (Id. ¶ 10.) The cause of Allery's death was listed as sharp force and blunt force injuries. (Id.) On September 21, 2006, approximately one year after this incident, Defendant Cooya told Special Agent Timothy O'Malley of the Federal Bureau of Investigation that the murder was not planned, that Allery and Defendant Williams had been arguing as they walked along the corridor, and that Defendant Cooya did not know that Defendant Williams had a weapon when Defendant Cooya grabbed Allery. (Id. ¶ 24.)
On June 20, 2011, Defendant Cooya filed a motion to sever his trial and any potential penalty phase proceedings from that of Defendant Williams pursuant to Rule 14 of the Federal Rules of Criminal Procedure. (Doc. No. 380.) On September 7, 2011, the Court denied the motion without prejudice, granting Defendant Cooya leave to attempt to further develop his contention that a joint trial and penalty phase would prevent Defendant Williams from providing exculpatory testimony on Defendant Cooya's behalf. (Doc. No. 426 at 12-13.) Defendant Cooya filed the instant supplemental motion to sever on November 14, 2011. (Doc. No. 450.) The Government filed a brief in opposition on December 6, 2011 (Doc. No. 462), and Defendant Cooya filed a reply brief on December 30, 2011 (Doc. No. 474).
Defendant Cooya moves for severance of the proceedings in the above-captioned action pursuant to Rule 14 of the Federal Rules of Criminal Procedure. (Doc. No. 450.) In support of his motion, Defendant Cooya argues that a joint trial and penalty phase will prevent Defendant Williams from providing exculpatory testimony on Defendant Cooya's behalf. (Doc. No. 451 at 4.) In resolving this motion, the Court will first review the standard for joinder and severance of criminal trials and then consider Defendant Cooya's argument in support of his motion.
Rule 8(b) of the Federal Rules of Criminal Procedure permits defendants to be charged together "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." Fed. R. Crim. P. 8(b). In the present matter, the appropriateness of joinder pursuant to Rule 8(b) is not in dispute. Rule 14 of the Federal Rules of Criminal Procedure, in turn, permits a district court to sever the defendants' trials in those cases where joinder would prejudice a defendant. Fed. R. Crim. P. 14(a). Recognizing the "vital role" joint trials play in the criminal justice system, however, the United States Supreme Court has stated a "preference" for joint trials of defendants who are indicted together. See Zafiro v. United States, 506 U.S. 534, 537 (1993) ("[Joint trials] promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts") (citation and internal quotation marks omitted); United States v. Urban, 404 F.3d 754, 775 (3d Cir. 2005). As explained by the United States Court of Appeals for the Seventh Circuit:
Joint trials reduce the expenditure of judicial and prosecutorial time; they reduce the claims the criminal justice system makes on witnesses, who need not return to court for additional trials; they reduce the chance that each defendant will try to create a reasonable doubt by blaming an absent colleague, even though one or the other (or both) undoubtedly committed a crime. The joint trial gives the jury the best perspective on all the evidence and therefore increases the likelihood of a correct outcome.
United States v. Buljubasic, 808 F.2d 1260, 1263 (7th Cir. 1987); see also Buchanan v. Kentucky, 483 U.S. 402, 418 (1987) (noting that in joint trials juries are better able to arrive at a reliable conclusion regarding guilt or innocence and fairly assign blame during sentencing).
Given the policy favoring joint trials, a motion to sever trials is not to be freely granted. See United States v. Quintero, 38 F.3d 1317, 1343 (3d Cir. 1994) (recognizing that a defendant has "a heavy burden in gaining severance"). "[D]efendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials." Zafiro, 506 U.S. at 540. Rather, where a matter has been properly joined, a court may only grant a motion to sever where "there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Id. at 539. The Court, however, acknowledges that in capital cases the heightened need for reliability requires that the Court be vigilant in protecting the constitutional rights of each defendant. Lockett v. Ohio, 438 U.S. 586, 604 (1978).
The sole argument asserted by Defendant Cooya in this motion is that a joint trial will prejudice him by preventing Defendant Williams from testifying on his behalf. According to Defendant Cooya, Defendant Williams will testify that the murder of Allery was not planned and that Defendant Cooya did not know that Defendant Williams possessed a weapon at the time of the murder. (Doc. No. 450 ¶ 26.) It is well established that "bare assertions that co-defendants will testify are insufficient" to justifying severing trials. United States v. Davis, 397 F.3d 173, 182-83 (3d Cir. 2005) (quoting United States v. Boscia, 573 F.2d 827, 832 (3d Cir. 1978)). The United States Court of Appeals for the Third Circuit has articulated four factors a district court must evaluate in determining whether the potentially exculpatory testimony of a co-defendant warrants separate trials: "(1) the likelihood of the co-defendant's testifying; (2) the degree to which such testimony would be exculpatory; (3) the degree to which the testifying co-defendants could be impeached; [and] (4) judicial economy." Boscia, 573 F.2d at 832 (holding that severance was not justified even where counsel "represented orally to the court that he had spoken with co-defendants who had indicated a willingness to testify in [the defendant's] behalf if there were separate trials").*fn2 The Court will address each of these factors in turn.
A. Likelihood of Defendant Williams Testifying
In order to satisfy the first Boscia factor, Defendant Cooya must demonstrate that Defendant Williams would in fact testify at Defendant Cooya's trial. Several courts have held that the requisite likelihood of a co-defendant testifying is not established where he conditions his testimony in a severed trial on his own trial being held first. See United States v. Spinelli, 352 F.3d 48, 56 (2d Cir. 2003) ("[S]uch conditional offers 'smack of bad faith.'); United States v. Bates, 46 F. App'x 104, 109 n.3 (3d Cir. 2002) ("[This] prong . . . is not satisfied where a co-defendant places conditions on his willingness to testify.") (quoting United States v. Reavis, 48 F.3d 763, 767 (4th Cir. 1995)); United States v. Blanco, 844 F.2d 344, 353 (6th Cir. 1988) ("We are not willing to read Rule 14 as a mechanism for . . . [co-defendants] to control the order in which they are tried.").
Defendant Cooya argues that Defendant Williams's offer to testify is not premised on Defendant Williams being tried first. In support, he has produced an affidavit from Defendant Williams's counsel stating that "[Defendant] Williams will testify at trial for [Defendant] Cooya, but will not testify at his own trial or in a joint trial, no matter the order in which the trials proceed." (Doc. No. 450-1 at 1 (emphasis added).) In opposition, the Government sets forth four arguments: (1) the failure to procure an affidavit from Defendant Williams himself casts doubt on the likelihood of Defendant Williams testifying on Defendant Cooya's behalf; (2) Defendant Williams's willingness to testify is "an attempt to manipulate the Court" because Defendant Williams made his willingness to testify known only after Defendant Cooya filed a motion to sever; (3) the affidavit's lack of specificity and failure to explain Defendant Williams's motive for testifying ...