The opinion of the court was delivered by: Surrick, J.
Presently before the Court are Defendant Steven Northington's Motion to Sever (ECF No. 363), Defendant Kaboni Savage's Motion to Sever Counts (ECF No. 383), and Defendant Kidada Savage's Motion to Sever (ECF No. 433). For the following reasons, the Motions will be denied.
On May 9, 2012, a federal grand jury returned a seventeen-count Fourth Superseding Indictment ("Indictment") charging Defendant Kaboni Savage ("Savage") with conspiracy to participate in the affairs of a racketeering ("RICO") enterprise, in violation of 18 U.S.C. § 1962(d) (Count 1), twelve counts of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Counts 2-7, 10-15), tampering with a witness, in violation of 18 U.S.C. § 1512(a) (Count 8), conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) (Count 9), retaliating against a witness, in violation of 18 U.S.C. § 1513(a) (Count
16), and using fire to commit a felony, in violation of 18 U.S.C. § 844(h)(1) (Count 17). (Fourth Superseding Indictment ("Indictment"), ECF No. 480.)*fn2 Savage was charged, along with three co-Defendants, Steven Northington, Robert Merritt, and Kidada Savage, his sister.*fn3 Defendant Lamont Lewis was also charged in the First Superseding Indictment. The charges against Lewis were disposed of by guilty plea. On March 14, 2011, the Government filed notices of intent to seek the death penalty against Savage, Merritt and Northington. (ECF Nos. 196, 197, 198.) The Government does not seek the death penalty against Kidada Savage.
The Indictment alleges that Defendants were members of the Kaboni Savage Organization ("KSO"), an enterprise that operated from late 1997 to April 2010 in this District and elsewhere. (Indictment 1-4.) The KSO packaged, prepared, and distributed controlled substances throughout the greater Philadelphia area; distributed drugs and collected drug proceeds in North Philadelphia; and operated multiple drug distribution centers in North Philadelphia, often referred to as "drug corners." (Id. at 5.) The KSO engaged in a conspiracy to "knowingly and unlawfully conduct and participate . . . in the conduct of the affairs of such enterprise through a pattern of racketeering activity." (Id. at 2.)
The KSO's activities included, without limitation, acts of murder; dealing and conspiring to distribute and possess with intent to distribute controlled substances; arson; witness tampering; witness retaliation; and money laundering. (Id. at 2-4.)
On February 17, 2012, Northington filed a Motion to Sever Trial. (Northington Mot., ECF No. 363.)*fn4 On February 21, 2012, Savage filed a Motion to Sever Counts. (Savage Mot., ECF No. 383.) On March 21, 2012, Kidada filed a Motion to Sever. (Kidada Mot., ECF No. 433.) On April 5, 2012, the Government filed an Omnibus Response ("Response") opposing these Motions. (Gov't's Resp., ECF No. 450.) On June 11 and 12, 2012, we held a hearing on Defendants' pre-trial motions. Oral argument was heard on Kidada's Motion.
"Federal Rule of Criminal Procedure 8 governs joinder of offenses and joinder of defendants." United States v. Irizarry, 341 F.3d 273, 287 (3d Cir. 2003). It states:
(a) Joinder of Offenses. The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged-whether felonies or misdemeanors or both-are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.
(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.
The Third Circuit has held that Rule 8(a) "'applies only to prosecutions involving a single defendant' and that in a multi-defendant case . . . 'the tests for joinder of counts and defendants is merged in Rule 8(b).'" Irizarry, 341 F.3d at 287 (quoting United States v. Somers, 496 F.2d 723, 729 n.8 (3d Cir. 1974)).*fn5 Rule 8(b) is "less permissive" than Rule (8)(a). Eufrasio, 935 F.2d at 570; see also United States v. Jimenez, 513 F.3d 62, 82 (3d Cir. 2008) (noting that "joinder of defendants under Rule 8(b) is a stricter standard than joinder of counts against a single defendant under Rule 8(a)"). We analyze Defendants' joinder challenges under the less permissive Rule 8(b).*fn6
In construing Rule 8(b), the Third Circuit has followed the Supreme Court in recognizing the "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 v. United States, 506 U.S. 534, 537 (1993) (alteration in original)). This is particularly true in cases in which defendants have been charged with engaging in a conspiracy. See Eufrasio, 935 F.2d at 567 ("Rule 8(b) provides substantial leeway to prosecutors who would join racketeering defendants in a single trial."). The Third Circuit has stated that Rule 8(b) permits joinder of defendants charged with participating in the same racketeering enterprise or conspiracy, even when different defendants are charged with different acts, so long as indictments indicate all the acts charged against each joined defendant (even separately charged substantive counts) are charged as racketeering predicates or as acts undertaken in furtherance of, or in association with, a commonly charged RICO enterprise or conspiracy.
Id. (citing United States v. Dickens, 695 F.2d 765, 778-79 (3d Cir. 1982)). "[J]oinder . . . of a conspiracy count and substantive counts arising out of the conspiracy [is permitted], since the claim of conspiracy provides a common link, and demonstrates the existence of a common scheme or plan." Id. (quoting Somers, 496 F.2d at 729-30 (internal quotation marks and internal citation omitted) (original emphasis in Somers)). A RICO conspiracy charge provides that link. Id.
Even if joinder is proper under Rule 8(b), a district court may order Rule 14 severance if the potential prejudice outweighs the expense and time of separate trials that essentially retry the same issue. See Zafiro, 506 U.S. at 539; see also United States v. Joshua, 976 F.2d 844, 847 (3d Cir. 1992) ("Severance decisions under Rule 14 require the district court to weigh the potential for prejudice to the defendant from joinder against the conservation of judicial resources that joinder will occasion."). Federal Rule of Criminal Procedure 14 states, in relevant part:
(a) Relief. If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial 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.
Defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials or because the evidence is different as to each defendant. "Severance should only be granted '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. Riley, 621 F.3d 312, 335 (3d Cir. 2010) (quoting Urban, 404 F.3d at 775 (quoting Zafiro, 506 U.S. at 539)). To prevail on a Rule 14 motion, a defendant has a "heavy burden," United States v. Quintero, 38 F.3d 1317, 1343 (3d Cir. 1994), and must "'pinpoint clear and substantial prejudice resulting in an unfair trial,'" Riley, 621 F.3d at 335 (quoting United States v. McGlory, 968 F.2d 309, 340 (3d Cir. 1992) (internal quotation marks and citation omitted)).
In the context of multiple defendants, the Third Circuit has noted that prejudice sufficient to warrant severance might occur in the following situations: "(1) a 'complex case' involving 'many defendants' with 'markedly different degrees of culpability,' (2) a case . . . where evidence that is probative of one defendant's guilt is technically admissible only against a co-defendant, and (3) a case where evidence that exculpates one defendant is unavailable in a joint trial." United States v. Balter, 91 F.3d 427, 432-33 (3d Cir. 1996) (citing Zafiro, 506 U.S. at 539). The question of prejudice hinges upon "whether the jury will be able to 'compartmentalize the evidence as it relates to separate defendants in view of its volume and limited admissibility.'" United States v. Davis, 397 F.3d 173, 182 (3d Cir. 2005) (quoting Somers, 496 F.2d at 730).
Where additional charges against a single defendant are "relatively straightforward and discrete," we have "not doubt[ed] that the jury reasonably could [be] expected to compartmentalize the evidence . . . ." United States v. Lore, 430 F.3d 190, 205 (3d Cir. 2005). By contrast, "[w]hen many defendants are tried together in a complex case and they have markedly different degrees of culpability, the risk of prejudice is heightened." Zafiro, 506 U.S. at 539.
"The decision to sever a trial is left to the sound discretion of the District Court." United States v. Ginyard, 65 F. App'x 837, 838 (3d Cir. 2003) (citing Zafiro, 506 U.S. at 538-39 ("Moreover, Rule 14 does not require severance even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district court's sound discretion.")); United States v. Reicherter, 647 F.2d 397, 400 (3d Cir. 1981) ("Motions for severance rest in the sound discretion of the trial judge, whose determination should not be disturbed in the absence of an abuse of discretion.")); United States v. Albowitz, 380 F. Supp. 553, 555 (E.D. Pa. 1974) (stating same).
In death penalty cases, some district courts have held that in the context of severance, "[t]he threshold for determining what constitutes prejudice and when the jury's ability to render a reliable verdict is compromised is necessarily lower than in the ordinary case." United States v. Green, 324 F. Supp. 2d 311, 320 (D. Mass. 2004); see also United States v. Solomon, No. 05-385, 2007 WL 1228029, at *3 (W.D. Pa. Apr. 25, 2007) (citing same); United States v. Perez, 299 F. Supp. 2d 38, 44 (D. Conn. 2004) (noting "heightened need for reliability in a death penalty trial"). Nevertheless, "defendants charged with capital murder under federal statutes have been tried jointly in both the guilt and penalty phases of trial." United States v. Bernard, 299 F.3d 467, 475 (5th Cir. 2002) (citing United States v. Causey, 185 F.3d 407, 417 (5th Cir. 1999); United States v. Tipton, 90 F.3d 861, 892 (4th Cir.1996)). "There is no per se rule; plainly the degree of antagonism must be such that the jury will inappropriately infer that one or both are guilty." Green, 324 F. Supp. 2d at 324 (citing United States v. Talavera, 668 F.2d 625, 630 (1st Cir. 1982)).
We will address each of Defendants' Motions separately. The facts relevant to each of the instant Motions are set forth in the Indictment.*fn7
A. Northington's Motion to Sever
Northington was a drug distributor, drug corner boss, enforcer and assassin for the KSO. (Indictment 8.) He participated in murders, the distribution of controlled substances, carrying firearms during violent crimes, witness tampering and witness retaliation. (Id. at 8-9.) Specifically, Northington has been charged with the murder of Tybius Flowers, which occurred on March 1, 2004, at the corner of 8th and Butler Streets, in Philadelphia. (Id. at 18, 34-35.)*fn8
Northington also has been charged with the murder of Barry Parker, which occurred on February 26, 2003, in Philadelphia. (Id. at 34.)*fn9 Based upon the notice of intent to seek the death penalty against Northington, the Parker murder is an aggravating circumstance for the murder of Flowers. The Government seeks a capital sentence for the Flowers murder. (ECF No. 198 at 3.)
Northington argues that his trial should be severed from that of his co-defendants. He claims that "[d]uring the twelve year plus operation of the [KSO], [he] played a relatively limited role," as evidenced by his consecutive periods of incarceration. (Northington Mem. 1.)*fn10
Northington also argues that while he obtained narcotics from Savage, he "was not a decision maker in the overall direction that the [KSO] took nor did he share in any major way in the profits it accrued." (Northington Mem. 2.) In addition, Northington points to the fact that the Indictment describes several murders, including "a particularly heinous mass murder of an adult and four children including an infant," that were committed by members of the KSO but which did not involve Northington. (Northington Mot. ¶ 4; see also Northington Mem. 2.)
In support of his argument for a separate penalty hearing, Northington claims that his rights will be violated, if tried jointly, since: (1) the "acts of the joined co-defendants are so horrific and prejudicial" that Northington will not receive individualized consideration as to whether he should "live or die"; (2) the jury will inevitably be invited to draw comparisons among, and engage in an unconstitutional evaluation of the relative worth of, Defendants, when evaluating mitigating factors and antagonistic defenses; and (3) the constitutional and procedural rights of his co-defendants will deprive Northington of notice of the issues he may confront at a penalty hearing. (Northington Mot. ¶¶ 5-6; see also Northington Mem. 3-12.) In addition, Northington claims that holding sequential but separate sentencing hearings for Defendants will not resolve the issue of individualized consideration. He argues for a separate sentencing jury. (Northington Mem. 9.)
The Government responds that Northington's role was hardly limited. (Gov't's Resp. 2.) It contends that the fact that each Defendant, including Northington, has been charged with conspiracy in furtherance of a racketeering enterprise, and that the evidence used against each Defendant will be substantially the same - when combined with efficiency considerations - favor a joint trial. (Id. at 6-11.) The Government asserts that any prejudice that might result from a joint trial can be cured by a limiting instruction to the jury. (Id. at 12-13.) With respect to Northington's argument for a separate sentencing jury, the Government responds that the language of the Federal Death Penalty Act of 1994 ("FDPA"), 18 U.S.C. §§ 3591-3598, does not support this argument. (Id. at 14-18.)
a) Northington's Role in the KSO
According to the Indictment, Northington played an integral role in the KSO. He participated in the racketeering enterprise by murdering individuals, distributing controlled substances, carrying firearms during violent crimes, and tampering with and retaliating against witnesses. (Indictment 8.) Specifically, the Indictment charges Northington with the following overt acts in furtherance of the enterprise:
* On or about January 30, 2003, in Philadelphia, KABONI SAVAGE, STEVEN NORTHINGTON, and others known and unknown to the grand jury, arrived at 3510 North Palmetto Street, to re-compress cocaine. (Id. at 14.)
* On or about February 26, 2003, in Philadelphia, STEVEN NORTHINGTON complained to KABONI SAVAGE that Barry Parker was selling drugs on a drug corner controlled by Northington and the KSO. (Id. at 14.)
* On or about February 26, 2003, in Philadelphia, KABONI SAVAGE instructed STEVEN NORTHINGTON and Lamont Lewis to kill Barry Parker, in order to eliminate Barry Parker as a competitor on one of the KSO's drug corners. (Id.)
* On or about February 26, 2003, in Philadelphia, STEVEN NORTHINGTON provided a handgun to Lamont Lewis, to be used to shoot and kill Barry Parker. (Id.)
* On or about February 26, 2003, at or near Franklin & Luzerne Streets, in Philadelphia, KABONI SAVAGE, STEVEN NORTHINGTON, and Lamont Lewis ordered and aided and abetted, the shooting and killing of, and caused the murder of, Barry Parker. (Id. at 15.)
* On or about February 27, 2003, at 3908 North Franklin Street, in Philadelphia, STEVEN NORTHINGTON possessed in his apartment approximately 90 packets of cocaine, a scale, razor blades, packaging materials, handcuffs, security badges, ammunition, and firearms, that is, a loaded Intertec 9 mm semi-automatic handgun with an obliterated serial number, and a Davis Industries .380 caliber handgun. (Id.)
* On or about February 27, 2003, in Philadelphia, KABONI SAVAGE distributed approximately 126 grams of cocaine to Lamont Lewis, as payment for the murder of Barry Parker, while telling Lamont Lewis that STEVEN NORTHINGTON ...