United States District Court, E.D. Michigan, Southern Division
ORDER DENYING TORIONO HUMPHREY'S MOTION TO SEVER
(DOCUMENT NO. 110), AND DENYING MOTION TO COMPEL DISCLOSURE
OF WITNESS LIST, EXHIBIT LIST, AND ADDITIONAL WITNESS
INFORMATION (DOCUMENT NO. 108)
STEPHEN J. MURPHY, III United States District Judge
Toriono Humphrey is charged with conspiring to distribute
heroin, cocaine and marijuana. Indict., ECF No. 1. Humphrey
moved the Court to sever his trial from that of his six
co-defendants. Mot., ECF No. 110. Additionally, Humphrey
seeks to compel the Government to disclose its witness list,
exhibit list, and recorded witness statements. Mot., ECF No.
108. No hearing is necessary. For the reasons stated below,
the Court will deny the motions.
Government alleges the following: on April 17, 2012, U.S.
Customs and Border patrol agents searched a semi-truck
trailer crossing from Mexico and discovered 1600 kilograms of
marijuana in sealed containers, intermixed with frozen
strawberries. Resp. 2-3, ECF No. 119. The truck was bound for
a warehouse in Oak Park, Michigan. Both Humphrey and his
co-defendant Alvin Matheney were connected to the warehouse.
On April 23, 2012, agents conducted a controlled delivery of
the truck to the warehouse. Later, agents executed a search
warrant on the warehouse and seized the marijuana.
April 26 and May 2, 2012, federal agents interviewed
Matheney. Id. at 3-4. He admitted to using the alias
"Al Baker" to rent the warehouse. Matheney told
agents that "an individual he knew as
'Tony'" contacted him to rent out the warehouse
space. Matheney said he was familiar with "Tony"
but did not know his last name. According to Matheney, he and
"Tony" had engaged in smaller scale drug
transactions previously. Additionally, Matheney told agents
"Tony" needed a space with a walk-in freezer for
receiving shipments of frozen food. Id. Matheney
stated that "Tony" had "work" and was
planning on adding "work" to the food orders. The
agents understood the term "work" to refer to the
buying and selling of illegal drugs. Matheney told agents he
coordinated the lease of the warehouse and took cash from
"Tony" for lease payments and for the construction
of a walk-in freezer.
Humphrey seeks a separate trial from Matheney and the other
co-defendants. Mot., ECF No. 110. Also, in a separate motion,
Humphrey seeks to compel disclosure of Government witness
lists, exhibit lists, and witness statements. Mot., ECF No.
Motion to Sever
courts strongly favor joint trials because [t]hey promote
efficiency and serve the interests of justice by avoiding the
scandal and inequity of inconsistent verdicts."
United States v. Breinig, 70 F.3d 850, 852-53 (6th
Cir. 1995) (quotations omitted). Also, joint trials promote
judicial economy because "there is almost always common
evidence against the joined defendants[.]" United
States v. Lopez, 309 F.3d 966, 971 (6th Cir. 2002)
(quotations omitted). So as a general rule, persons indicted
together "should be tried together." Id.
joinder would "prejudice a defendant, " however,
the Court may "sever the defendants' trials."
Fed. R. Crim. P. 14(a). But "defendants are not entitled
to a separate trial simply because they may have a better
chance of acquittal if they were tried alone."
Breinig, 70 F.3d at 853. Instead, severance is
appropriate "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." Lopez, 309
F.3d at 971.
to joinder often arise when the Government offers as evidence
a co-defendant's out-of-court statement; the statement
inculpates another defendant; the co-defendant does not
testify; and the defendant is unable to confront the
co-defendant in the crucible of cross-examination. See
e.g. Bruton v. U.S., 391 U.S. 123, 135-36 (1968);
see also U.S. Const. amend. VI (providing the right
of the accused "to be confronted with the witnesses
against him."). In that type of case, severance is
warranted if the "codefendant's statement 
facially incriminates the defendant." United States
v. Vasilakos, 508 F.3d 401, 407 (6th Cir. 2007).
co-defendant's "statements that incriminate only
inferentially" do not violate the Confrontation Clause.
Id. For instance, "where the defendant's
name is redacted and a neutral term is substituted, " no
Confrontation Clause violation occurs and severance is
unwarranted. Id. at 408. Similarly, when a
co-defendant's statement only "becomes incriminating
when linked with other evidence adduced at trial" there
is no Confrontation Clause violation and thus no need for
severance. United States v. Ford, 761 F.3d 641, 654
(6th Cir. 2014) (quotations omitted).
Humphrey contends that he will be incriminated by
co-defendant Matheney's statement to agents. Mot., ECF
No. 110. If Matheney does not testify at trial, Humphrey will
be unable to cross-examine him regarding the incriminating
statement. The Court should grant a severance, Humphrey
concludes, to prevent a Confrontation Clause violation.
Court has a strong preference for trying Humphrey and
Matheney together, since they were indicted together, and
both cases will involve the same witnesses giving testimony
about the warehouse and the marijuana. And Humphrey has not
shown that joinder will result in a potential Confrontation
Clause violation. Matheney's statement does not facially
incriminate Humphrey. Instead, the statement identifies
"Tony" as the man who paid to lease the warehouse
and build the walk-in freezer. At most, Matheney's
statement - when combined with other evidence at trial - may
inferentially incriminate Humphrey. But ...