United States District Court, E.D. Pennsylvania
J. PAPPERT, J.
and Kenneth Hampton were charged with various counts of wire
fraud, aggravated identity theft and
conspiracy. Five days before trial, Terrell was
injured in a car accident. While the full extent of
Terrell's injuries is unknown, he reportedly suffered
multiple fractures which do not (at least at this time)
require surgery. He remains on narcotic pain medication which
Terrell's counsel and counsel for the Government agree
precludes him from standing trial as scheduled on June 6. The
Government has moved to sever Terrell from the case and
proceed to trial against Kenneth. Kenneth opposes severance.
For the reasons that follow, the Court grants the motion.
is a preference in the federal system for joint trials of
defendants who are indicted together.” Zafiro v.
United States, 506 U.S. 534, 537 (1993). Joint trials
“play a vital role in the criminal justice
system” by promoting efficiency and also “serve
the interests of justice by avoiding the scandal and inequity
of inconsistent verdicts.” Richardson v.
Marsh, 481 U.S. 200, 209-10 (1987). Accordingly, the
Federal Rules of Criminal Procedure permit the Government in
an “indictment or information” to “charge
[two] 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.” Fed. R. Crim. P. 8(b).
preference is not, however, an absolute rule. Rule 14(a)
provides that the Court “may sever the defendants'
trials” if “consolidation for trial appears to
prejudice a defendant or the government.” Fed. R. Crim.
P. 14(a). “Rule 14 leaves the determination of risk of
prejudice and any remedy that may be necessary to the sound
discretion of the district courts.” Zafiro,
506 U.S. at 541.
Ellis and Terrell Hampton and Mason were initially indicted
on July 7, 2015. (ECF No. 1.) Since that time, trial has been
continued several times-some at the Defendants' request
and some at the request of all parties. (ECF Nos. 50, 66,
100, 153 & 186.) Superseding and second superseding
indictments were issued, (ECF Nos. 86 & 124), and Kenneth
moved to continue the trial when his initial counsel
withdrew. (ECF Nos. 172 & 185.) The current trial
schedule was set on January 6, 2017. (ECF No. 192.)
support of its motion, the Government asserts that it will be
prejudiced by further delay because it “has several
victim-witnesses who are infirm or subject to major medical
constraints.” (Mot., at 4, ECF No. 263.) One of its
victim-witnesses has already become too ill to
testify. The Government also correctly notes that
Terrell's status remains unclear: “there is simply
no way to predict when Terrell will be well enough to sit
through a trial.” (Id. at 5.) Terrell's
counsel acknowledges as much. Without severance, the
trial-originally set for September 14, 2015 and postponed
five times- would be delayed again, this time indefinitely.
contends that the Government will not be prejudiced, but only
inconvenienced by further delay. (Resp., at 3, ECF No. 267.)
He suggests that “[a]ll of the witnesses that may be
otherwise unavailable may be deposed.” (Id.)
Witnesses may be deposed to preserve their testimony, but the
possibility of preserving witness testimony does not obviate
the Government's prejudice of facing indefinite delay of
a trial that has already been delayed numerous times.
also contends that he will be prejudiced by severance because
his counsel and Terrell's counsel collaborated in case
preparation, which included work on various pretrial motions.
(Resp., at 4.) In United States v. Sudeen, 434 F.3d
384, 387- 88 (5th Cir. 2005), the Fifth Circuit rejected this
very argument. There, Motillal Sudeen and Jerry Freeman were
indicted on counts of conspiracy, wire fraud, travel fraud
and money laundering. Id. at 387. Trial was
scheduled after Sudeen's cardiologist informed the court
that he was healthy enough for trial. Id. Sudeen and
Freeman later moved for a continuance because of a scheduling
conflict with Freeman's lawyer. Id. The
Government opposed the continuance and moved to sever the
trial, which the court granted. Id. After his
conviction, Sudeen argued on appeal that he was prejudiced by
the severance because his lawyer and Freeman's lawyer had
prepared their defenses together. Id.
court rejected Sudeen's argument because Sudeen did not
“allege prejudice with any specificity” and his
counsel “was, by all accounts, well prepared for
trial.” Id. at 388. The court also noted that
“the greatest possibility for prejudice appears to have
been that to the detriment of the government, if the district
court had allowed defendants to proceed jointly [because]
[t]he trial had been pushed back four times already, and
Sudeen's health problems posed a significant potential
for further delay.” Id. at 388 n.7.
whose counsel is well prepared for trial, has similarly
failed to explain with specificity how he will be prejudiced
by severance. Kenneth only makes vague references to
“compromises” that his counsel made with
Terrell's counsel on the assumption that the two would
face a joint trial. (Resp., at 4.) This is insufficient to
show prejudice to Kenneth. Just as in Sudeen, the
Government faces “significant potential for further
delay” because of one defendant's health problems.
434 F.3d at 388 n.7. It is the Government, not Kenneth, that
will be prejudiced if severance is not ordered.
event, Kenneth does not have the right to stand trial with
Terrell. See Charles A. Wright & Andrew D.
Leipold, Federal Practice and Procedure: Criminal § 221
(4th ed.) (“[T]he accused does not have a protected
right to be tried with another defendant accused of the same
offense, and thus defendant cannot object because a
codefendant is severed from the case.”); cf. United
States v. Marchant & Colson, 25 U.S. (12 Wheat.)
480, 482 (1827) (Story, J.) (“Whether . . . prisoners,
who are jointly indicted, can, against their wishes, be tried
separately, does not admit of a doubt.”); United
States v. Bronson, 145 F.2d 939, 943 (2d Cir. 1944)
(Hand, J.) (“No accused person has any recognizable
legal interest in being tried with another, accused with him,
though he often has an interest in not being so
risk of an indefinite delay of trial is a sufficient risk of
prejudice to the Government. Kenneth's suggestion that
the Government depose its witnesses in lieu of presenting