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United States of America v. Corey Gadsden

October 17, 2012

UNITED STATES OF AMERICA,
v.
COREY GADSDEN,
DEFENDANT.



The opinion of the court was delivered by: Joy Flowers Conti United States District Judge

MEMORANDUM OPINION AND ORDER

Presently before the court is the Motion for Reconsideration of the court's July 12, 2012 denial of defendant's motion for severance of counts (ECF No. 280), the Brief in Support (ECF No. 281), and the Supplemental Memorandum (ECF No. 292) filed by defendant Corey Gadsden ("defendant"), and the government's responses (ECF Nos. 282 and 293). Upon consideration of the parties' arguments and the relevant law, for the reasons set forth below, defendant's motion for reconsideration will be DENIED.

I. Background

On October 27, 2011, the government filed a four-count Third Superseding Indictment (ECF No. 219), charging defendant with conspiracy to possess with intent to distribute and to distribute one kilogram or more of a mixture or substance containing a detectable amount of heroin, in violation of 21 U.S.C. § 846 (Count I); attempt to distribute and possess with intent to distribute one hundred grams or more of a mixture and substance containing a detectable amount of heroin, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2 (Count II); conspiracy to engage in conduct which threatened to cause bodily injury to an individual with the intent to retaliate against that person for giving information to a law enforcement officer relating to the commission or possible commission of the offenses charged in Counts I and II of the Third Superseding Indictment, in violation of 18 U.S.C. § 1513(f) (Count III); and possession of a prohibited object (a cellular telephone) in the Beaver County Jail in violation of 18 U.S.C. §§ 1791(a)(2) and 1791(b)(4) (Count IV). (ECF No. 219.) Defendant's brother, Omar Gadsden, is also charged in Counts I and III. (Id.)

On July 12, 2012, the court held a pretrial motions hearing with respect to, inter alia, defendant's two previous Motions to Sever, (ECF Nos. 147 and 261). The court denied both motions on the record. The present motion seeks reconsideration of the denial with respect to defendant's Motion for Severance of Counts Pursuant to Rule 8(b) and Rule 14 of the Federal Rules of Criminal Procedure. (ECF No. 261.)

II. The Parties' Arguments

Defendant argues in his Brief in Support (ECF No. 281) that Counts I and II must be tried separately from Counts III and IV because the jury will not be able to follow the presumption of innocence and burden of proof instructions if they are tried together, since doing so would reveal evidence of defendant's current incarceration. (ECF No. 281 at 1.) Defendant contends that references to his incarceration during trial will be required with respect to Count IV and will prejudice him pursuant to Rule 14(a)*fn1 by: (1) limiting his ability to testify in his own defense; and (2) preventing the jury from making a "reliable judgment." (Id. at 2-3.)*fn2 In support of the first argument, defendant argues that his right to testify with respect to Count IV conflicts with his right to remain silent and not testify with respect to Counts I and II. In the alternative, defendant argues that he cannot exercise his right to testify with respect to Counts I and II without the jury learning that he is incarcerated. (Id. at 2.) In support of his prejudice argument, defendant relies on two kinds of decisions that he argues are analogous to the present situation:

(1) decisions granting severance because one of the counts involved a charge of being a felon in possession of a firearm; and (2) decisions involving a defendant wearing a prison uniform and/or physical restraints while in court. (Id. at 3-8.) Defendant argues that testimony revealing that he is presently incarcerated would prejudice him because jurors would be unable to adhere to limiting instructions, thus depriving him of due process of law. (Id. at 3-9.)

The government responds by contending that severance is not necessary merely because a defendant wishes to testify with respect to some counts, but not others. (ECF No. 282 at 2-3.) The government also argues that courts presume that juries are capable of considering separate evidence with respect to multiple defendants and counts, and that severance is not necessary for that reason. (Id. at 3-6.)

III. Standard of Review

Decisions regarding severance pursuant to Rule 14 are within the sound discretion of the trial court. Zafiro v. United States, 506 U.S. 534, 541 (1993). In deciding a motion to sever, the court must "weigh possible prejudice to the defendant against interests of judicial economy." United States v. Reicherter, 647 F.2d 397, 400 (3d Cir. 1981) (citing United States v. Kelley, 635

F.2d 778, 780-81 (10th Cir. 1980). It is a "fundamental principle that the federal system prefers 'joint trials of defendants who are indicted together' because joint trials promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." United States v. Urban, 404 F.3d 754, 775 (3d Cir. 2005) (quoting Zafiro, 506 U.S. at 537).

A court will only grant a severance pursuant to Rule 14 "if 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." United States v. Reyeros, 537 F.3d 270, 286 (3d Cir. 2008) (citing Zafiro, 506 U.S. at 539). In setting forth a motion to sever, the defendant bears a heavy burden and must make a showing of "'clear and substantial prejudice resulting ...


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