United States District Court, M.D. Pennsylvania
MALACHY E. MANNION UNITED STATES DISTRICT JUDGE
the court are the pre-trial motions for a severance of
offenses and for a severance from his co-defendants, David
Alzugaray-Lugones and Liza Robles, under Fed.R.Crim.P. 8 and
14, (Doc. 112), filed, through counsel, by defendant Roberto
Torner. Torner also moves to bifurcate or for a
severance of Counts 3, 4, 5 and 8 based on the felon in
possession of a firearm element in those counts. Further,
Torner filed a motion in limine to preclude the government
from introducing certain evidence of alleged prior bad acts
in which he may have been involved.
before the court are the pre-trial motions for a severance of
counts, (Doc. 114), and for a severance from the
co-defendants under Fed.R.Crim.P. 8 and 14, (Doc. 116),
filed, through counsel, by defendant Liza Robles. Robles
moves to have the two drug charges filed against her severed
from the two firearms charges against her alleging that the
charges bear no connection. Robles also seeks the court to
conduct a separate trial for her from her two co-defendants,
David Alzugaray-Lugones and Roberto Torner. Robles states
that since one of the counts charged against her in the
Indictment is that she conspired with co-defendants to
distribute heroin, in violation of 21 U.S.C. §846, she
will be prejudiced if her trial is not severed from her
co-defendants because the jury will have difficulty
separating her alleged acts from the alleged acts of her
co-defendants. Robles also joined in Torner's motion in
limine. For the reasons set forth below, the court will
DENY Torner's and Robles' motions
for severance of offenses and motions for a severance of the
trial. The court will also DENY Torner's
motion to bifurcate or for a severance of Counts 3, 4, 5 and
8. Further, the court will GRANT IN PART and
DENY IN PART Torner's and Robles'
motions in limine to preclude the introduction of certain
evidence at trial.
of relevant background, on November 7, 2017, Torner was
indicted with the two stated co-defendants and charged by a
grand jury in an Indictment. (Doc. 18). On January 30, 2018,
Torner was charged in a First Superseding Indictment
(“FSI”) with the following offenses: Count 1,
conspiracy to distribute and possession with intent to
distribute heroin, in violation of 21 U.S.C. §846; Count
2, distribution and possession with intent to distribute
heroin, in violation of 21 U.S.C. §841(a)(1) and
(b)(1)(C); Count 3, firearms conspiracy to commit the offense
of felon in possession of a firearm, in violation of 21
U.S.C. §371; Count 5, felon in possession of a firearm
and ammunition, in violation of 18 U.S.C. §922(g)(1);
Count 7, possession of stolen explosives, in violation of 18
U.S.C. §842(h) and §3147(1); and Count 8,
possession of explosives by a felon, in violation of 18
U.S.C. §842(j) and §3147(1). (Doc. 61).
February 6, 2018, Torner was arraigned and pled not guilty to
all of the charges against him in the FSI. (Doc. 68).
14, 2018, Torner filed his multiple pre-trial motions. (Doc.
112). Torner simultaneously filed his brief in support of his
motions. (Doc. 113).
November 7, 2017, Robles was indicted with the two stated
co-defendants and charged by a grand jury in an Indictment.
(Doc. 18). Robles was charged with conspiracy to distribute
and possession with intent to distribute heroin, in violation
of 21 U.S.C. §846, distribute and possess with intent to
distribute heroin, in violation of 21 U.S.C. §841(a)(1),
conspiracy to commit the offense of felon in possession of a
firearm, in violation of 21 U.S.C. §371, and transfer of
firearms and ammunition to a prohibited person, namely,
Torner, Robles' “fiancé” and father of
her four children, in violation of 21 U.S.C. §922(d)(1).
January 30, 2018, Robles was charged with the stated four
offenses in the FSI. (Doc. 61).
February 6, 2018, Robles was arraigned and pled not guilty to
all of the charges against her in the FSI. (Doc. 68).
14, 2018, Robles filed four pre-trial motions, including her
instant motions for a severance of counts, (Doc. 114), and
for a severance from the co-defendants, (Doc. 116). Robles
simultaneously filed her briefs in support of her motions.
(Docs. 115 & 117).
being granted an extension of time, the government filed its
brief in opposition to Torner's and Robles' motions
on July 6, 2018. (Docs. 145). Robles filed her reply brief on
July 20, 2018. (Doc.154).
trial in this case is scheduled to commence for all three
defendants on September 10, 2018.
court will now address Torner's and Robles' motions
purposes of Rules 8(b) and 14 are “to promote economy
and efficiency and to avoid a multiplicity of trials, [so
long as] these objectives can be achieved without substantial
prejudice to the right of the defendants to a fair
trial.” Bruton v. United States, 391 U.S. 123,
131 n. 6, 88 S.Ct. 1620 (1968). Federal Rule of Criminal
Procedure 8 addresses the joinder of offenses and defendants
(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
court in U.S. v. Adens, 2015 WL 894205, *1 (E.D.Pa.
Feb. 27, 2015), explained Rule 8 as follows:
When multiple defendants are charged in a single case, as
here, Rule 8(b) governs both the proper joinder of defendants
and the proper joinder of offenses. See United States v.
Irizarry, 341 F.3d 273, 287 (3d Cir. 2003). Rule 8(b)
does not expressly allow the joinder in a single indictment
of acts that are “of the same or similar
character” as does Rule 8(a), see Id. at 287
n. 4, but Rule 8(b)'s terms are broadly construed so that
a “transactional nexus, ” see Id. at
241, or a logical relationship between charges, is all that
is required for them to be considered part of the same
“transaction.” See United States v.
Hills, No. 08-654-1, 2009 WL 2461735 (E.D.Pa. Aug.10,
2009). To determine whether there is a logical relationship
between charges, trial judges may look at pre-trial
documents, including but not limited to the indictment.
See United States v. McGill, 964 F.2d 222, 242 (3d
there is not a misjoinder under Rule 8 if “the temporal
proximity of and substantive similarities between the [two
sets of charges] render them sufficiently related as to have
the ‘transactional nexus' required for
joinder.” Adens, 2015 WL 894205, *3; see also
United States v. Jones, 2016 WL 3067010, *26 (W.D.Pa.
June 1, 2017) (“Rule 8 authorizes joinder of charges if
they are of a similar character, are based on the same act or
transaction, or are part of a common scheme.”).
[i]f joinder is improper under Rule 8, the Court must order
separate trials.” Adens, 2015 WL 894205, at *2 (citing
United States v. Walker, 657 F.3d 160, 170 (3d Cir.
2011) (“Rule 8 requires severance where defendants were
improperly joined.”). Even if defendants are properly
joined under Rule 8, “the Court may sever defendants or
offenses under Rule 14 ‘[i]f it appears that a
defendant or the government is prejudiced by a joinder of
offenses or of defendants in an indictment or information or
by such joinder for trial together.'” Id.
(citing Fed.R.Crim.P. 14). Further, “a district court
should grant a severance under Rule 14 only 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.” Id. (quoting Zafiro v. United
States, 506 U.S. 534, 539, 113 S.Ct. 933 (1993)).
is a “heavy” burden on the defendant to show
“clear and substantial prejudice resulting in a
manifestly unfair trial.” Id. (quoting United
States v. Eufrasio, 935 F.2d 553, 568 (3d Cir.
1991)). Additionally, “[e]ven when the risk of
prejudice is high, less drastic measures than severance (such
as limiting instructions) ‘often will suffice to cure
any risk of prejudice.'” Id. (quoting
Zafiro, 506 U.S. at 539). As such, “the
appropriate question for the Court on a motion under Rule 14
is whether the jury can ‘reasonably be expected to
compartmentalize the evidence as it relates to the separate
defendants in view of its volume and limited
admissibility.'” Id. (quoting United
States v. Serubo, 460 F.Supp. 689, 694 (E.D.Pa. 1978));
see also Jones, 2016 WL 3067010, *26 (“Rule 14
provides the court discretion to order separate trials of
counts, sever the defendants' trials, or provide any
other relief that justice requires, if joinder of offenses
appears to prejudice either the defendant or the
government.”) (citations omitted).
motions in limine are mainly filed pursuant to Fed.R.Evid.
404(b) and 609(a)(1)(B). The motion also seeks, in part, to
exclude evidence as irrelevant. It is axiomatic that
“irrelevant evidence is not admissible.”
Fed.R.Evid. 402. Evidence is relevant if “it has any
tendency to make a fact more or less probable than it would
be without the evidence” and if “the fact is of
consequence in determining the action.” Fed.R.Evid.
401. Even if evidence is relevant, the court can exclude it
if “its probative value is substantially outweighed by
a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative
evidence.” Fed.R.Evid. 403.
Rule of Evidence 404(b) precludes the admission of other
crimes, wrongs, or acts “to prove the character of a
person in order to show conformity therewith”. However,
under Rule 404(b), such evidence is admissible for legitimate
evidentiary purposes such as “proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake.”
Rule of Evidence 609 pertains to the use of prior convictions
for impeachment purposes and provides:
The following rules apply to attacking a witness's
character for truthfulness by evidence of a criminal
(1) for a crime that, in the convicting jurisdiction, was
punishable by death or by imprisonment for more than one
year, the evidence:
(B) must be admitted in a criminal case in which the witness
is a defendant, if the probative value of the evidence
outweighs its prejudicial effect to that defendant[.]
Motion for Severance of Offenses
states that the FSI charges him with three separate sets of
offenses, namely, drug offenses, firearm offenses and
explosives offenses. He contends that joinder of these three
categories offenses in the FSI is improper under Rule 8
because the offenses are not of the same of similar
character, are not based on the same act or transaction, and
are not connected with or constitute parts of a common scheme
or plan. Specifically, Torner argues that the drug offenses
allege a six day conspiracy and one delivery of heroin all of
which transpired in June 2015. He states that the firearms
offenses all stem from Robles' alleged unlawful purchase
and transfer of firearms to him and that these firearms
offenses have nothing to do with the drug offenses charged
against him. Further, Torner contends that the explosives
offenses are completely unrelated to either the drug offenses
and firearms ...