United States District Court, Western District of Michigan, Northern Division
OPINION AND ORDER
TIMOTHY P. GREELEY UNITED STATES MAGISTRATE JUDGE
Defendant Richard Jon Hill moves to sever his trial from the trial of his codefendants. Defendant Hill was indicted by a grand jury. The Third Superseding Indictment filed on February 10, 2015, charges Defendant Hill with Conspiracy to Distribute and Possess With Intent to Distribute Methamphetamine, in violation of 21 U.S.C. § 846, 841(a)(1) and 841(b)(1)(A)(viii); two counts of Distribution of Methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(c); and Possession of Methamphetamine With Intent to Distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii). Trial is set for August 17, 2015.
Defendant Hill was charged along with Defendants Rebecca Jean Suzik, Joshua Aaron Anderson, Anthony Peter Giovanoni, Jack Michael Ribich, and David Anthony Tristan. Defendants Suzik, Anderson, and Giovanoni have entered plea agreements. The government intends to introduce, during the trial of Defendants Hill, Ribich and Tristan, the statements that Defendant Ribich made to police officers. Defendant Hill argues that he will be prejudiced by the introduction of Defendant Ribich’s statements, because he will not have an opportunity to cross-examine Defendant Ribich if Defendant Ribich does not testify at trial. Further, Defendant Hill asserts that the delays that have occurred due to the multiple indictments and charges against multiple defendants have prejudiced him. Defendant Hill argues that the delays that have occurred in this case, coupled with the introduction of the statement made by Defendant Ribich, entitles him to a separate trial.
Defendant Hill made oral statements when he was interviewed by United States Drug Enforcement Administration Special Agent Poikey, Ironwood Police Officer Sterbenz, and Hurley Police Officer Packmeyer. The government intends to call Special Agent Poikey, Officer Sterbenz and possibly Officer Packmeyer to testify during trial. The intended testimony will be introduced to implicate Defendant Ribich in the methamphetamine distribution conspiracy and will not be for the purpose of implicating Defendant Hill. In addition, the government intends to engage in further pretrial discussion regarding this testimony with Defendant Hill’s attorneys, so that potential problems and issues can be addressed.
Therefore, the government argues that Defendant Hill’s motion for severance should be denied because the government does not intend to offer statements into evidence that Defendant Ribich made concerning Defendant Hill, and that it is likely that Defendant Ribich will testify at trial, which alleviates any concerns of Defendant Hill. The government also argues that any delay in this case was caused by the defendants, including Defendant Hill, and cannot justify a Speedy Trial violation. Defendant Hill claims that he will be prejudiced if tried jointly with his codefendants.
Federal Rule of Criminal Procedure 14 provides:
(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.
(b) Defendant’s Statements. Before ruling on a defendant’s motion to sever, the court may order an attorney for the government to deliver to the court for in camera inspection any defendant’s statement that the government intends to use as evidence.
There exists a strong preference for joint trials where defendants are indicted together. Zafiro v. United States, 506 U.S. 534, 537 (1993). As the Sixth Circuit explained in United States v. Wilson, 344 Fed.Appx. 134 (6th Cir. 2009):
“As a general rule, persons jointly indicted should be tried together because ‘there is almost always common evidence against the joined defendants that allows for the economy of a single trial.’” United States v. Lopez, 309 F.3d 966, 971 (6th Cir.2002) (quoting United States v. Phibbs, 999 F.2d 1053, 1067 (6th Cir.1993)); accord Zafiro, 506 U.S. at 537, 113 S.Ct. 933 (“There is a preference in the federal system for joint trials of defendants who are indicted together.”). Nonetheless, Rule 14(a) “recognizes that joinder, even when proper under Rule 8(b), may prejudice either a defendant or the Government.” Zafiro, 506 at 538, 113 S.Ct. 933. Rule 14(a) provides that “[i]f the joinder of ... defendants in an indictment ... 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.” Fed. R. Crim. P. 14(a). In interpreting Rule 14, the Supreme Court has held that
when defendants properly have been joined under Rule 8(b), 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.
Zafiro, 506 U.S. at 539, 113 S.Ct. 933.
Id. at 139-140. See also United States v. Cobleigh, 75 F.3d 242, 248 (6th Cir. 1996) (approving the admission of a codefendant’s statements that were redacted to omit identifiable references to other defendants).
In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that the confrontation clause was violated when the confession of defendant’s codefendant was introduced during their joint trial. The Supreme Court stated:
We hold that, where a non-testifying codefendant’s confession incriminating the defendant is not directly admissible against the defendant, the confrontation clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, ...