United States District Court, E.D. Michigan, Northern Division
ORDER DENYING MOTION TO SUPPRESS EVIDENCE, MOTION TO
SEVER COUNTS, MOTION FOR DISCLOSURE OF CONFIDENTIAL
INFORMANT, AND MOTION FOR JOINDER, AND GRANTING MOTION FOR
EXTENSION OF DATES
L. LUDINGTON United States District Judge.
September 23, 2015, Defendant Daniel Jason Harrington was
indicted with three counts of distribution of methamphetamine
and one count of criminal forfeiture. ECF No. 1. On December
9, 2015, a superseding indictment was issued charging
Harrington with ten counts related to distribution of
methamphetamine and a count of criminal forfeiture. ECF No.
22. On April 14, 2016, a third superseding indictment was
filed, again charging Harrington with eleven counts. ECF No.
53. On July 12, 2016, Harrington filed a motion for
appointment of new counsel. ECF No. 82. That motion was
granted, after a hearing, on September 6, 2016. ECF No. 92.
Attorney Russell J. Perry was appointed on September 13,
2016. ECF No. 93. On October 28, Defendant Harrington filed a
motion to suppress evidence of a gun and ammunition, a motion
to sever counts, and a motion for disclosure of confidential
informants. ECF Nos. 97, 98, 99. On November 1, 2016,
Defendant Morfin filed a motion for joinder in Defendant
Harrington's motion. On November 14, 2016, the Court
ordered the Government to respond to Defendant
Harrington's motions. For the reasons stated below, the
motions will be denied.
Harrington argues that evidence of a gun and ammunition which
law enforcement officers seized from his home should be
suppressed. He explains that, when his home was searched, a
handgun and box of ammunition was discovered among a
codefendant's belongings. Harrington notes that he is
charged with various drug-related crimes, but no crimes
related to possession or use of a gun. He argues that the
evidence of the firearm and ammunition is thus
“immaterial and prejudicial beyond any possible
probative value.” ECF No. 97 at 3. In support,
Harrington cites Federal Rule of Evidence 403, which provides
The court may exclude relevant evidence 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.
further argues that the evidence is especially prejudicial
because he is charged with possessing methamphetamine with
intent to distribute in a place where a person under the age
of 18 lived.
response, the Government argues that the firearm and
ammunition challenged here is relevant because firearms are
recognized tools of the drug trade. The Government cites
several cases in support of the proposition that evidence of
weapons is relevant to proving intent or a conspiracy to
courts have very broad discretion in analyzing evidence under
Rule 403. United States v. Newsom, 452 F.3d 593, 603
(6th Cir. 2006). A Rule 403 violation occurs if admitting the
evidence would “result in ‘unfair prejudice'
in that ‘the evidence [would] suggest a decision on an
impermissible basis.'” United States v.
Bonds, 12 F.3d 540, 567 (6th Cir. 1993) (quoting
United States v. Schrock, 855 F.2d 327, 333 (6th
Cir.1988)). “Unfair prejudice does not mean the damage
to a defendant's case that results from the legitimate
probative force of the evidence; rather it refers to evidence
which tends to suggest [a] decision on an improper
basis.” Newsom, 452 F.3d at 603 (quoting
Bonds, 12 F.3d at 567).
Harrington's arguments, the gun is potentially relevant
to the crimes with which he is charged. In drug conspiracy
cases, courts frequently admit guns as evidence of a
defendant's “intent to promote and protect the
narcotics conspiracy.” See United States v.
Marino, 658 F.2d 1120, 1123 (6th Cir. 1981) (collecting
cases). See also United States v. Watz, 162 F.3d
1162 (6th Cir. 1998) (same). In Marino, the Sixth
Circuit affirmed the admission of evidence regarding firearms
found in the defendant's suitcase, even though the
defendant had not been charged with any gun-related crimes.
Id. at 1124. Rule 403 allows exclusion of
prejudicial evidence, but only if the evidence's
“probative value is substantially
outweighed” by the danger of unfair prejudice.
(emphasis added). Harrington has not demonstrated that the
risk of prejudice substantially outweighs the evidence's
relevance. Harrington argues that the gun was the property of
a codefendant. That may be true, but that argument is one to
be made at trial. The gun was found in Harrington's home,
and thus it is not unreasonable to conclude that the gun was
Harrington's, or at least that the gun was meant to
protect the Defendants collectively in their alleged drug
distribution conspiracy. Harrington also argues that the
evidence is especially prejudicial because the Government is
alleging that Harrington distributed methamphetamine out of a
residence where minors lived. But guns are not so inherently
prejudicial as to be inadmissible, when relevant to the
crimes charged, any time children are alleged to have been
nearby. Further, and to the extent that admission of the
evidence would prejudice Harrington, a limiting instruction
to the jury at trial will adequately protect Harrington.
See Marino, 658 F.2d at 1124 (holding that a
limiting instruction adequately protected the defendant from
any unfair prejudice).
Harrington argues that Count 10 of the third superseding
indictment should be severed from the other counts. Count 10
charges Harrington with knowingly possessing methamphetamine
with an intent to distribute on a premises where a person
under the age of 18 was present and resided. Harrington
argues that Count 10 is the only count which requires proof
that an individual under the age of 18 was present and
asserts that Count 10 is logically and factually distinct
from the remaining counts.
opposition to Harrington's motion to sever, the
Government argues that Count 1, the conspiracy count,
contains “ways and means” allegations, including
allegations that Harrington and others conducted their
operations out of a home where minors were present. The
Government also asserts that Counts 8 and 9 charge Harrington
with possessing methamphetamine with the intent to
distribute, like Count 10. Thus, the Government argues that
Count 10 has elements which are common to other counts.
to Federal Rule of Criminal Procedure 8(a), a defendant may
be charged in separate counts with multiple offenses if the
offenses charged “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.”
Courts must liberally construe this joinder rule “to
promote the goals of trial convenience and judicial
efficiency.” United States v. Wirsing, 719
F.2d 859, 862 (6th Cir. 1983). Joinder is appropriate when
“‘the joinder counts are logically related, and
there is a large area of overlapping proof.'”
United States v. Graham, 275 F.3d 490, 512 (6th Cir.
2001) (quoting Wirsing, ...