United States District Court, D. Nevada
MOTION TO SEVER - #75 JOINDER TO MOTION TO SEVER - #93
GEORGE W. FOLEY, Jr., Magistrate Judge.
This matter is before the Court on Defendant Alexander Del Valle Garcia's Motion to Sever (#75), filed on February 14, 2014. The Government filed its Response to Defendant Garcia's Motion to Sever (#83) on February 28, 2014. Defendant Del Valle Garcia filed his Reply (#88) on March 7, 2014. Defendant Julio De Armas Diaz filed a Joinder to Defendant Del Valle Garcia's Motion to Sever (#93) on March 17, 2014. Defendant Diaz's Joinder consisted of a one-page argument that there were different degrees of culpability among the Defendants that warranted severance. The Government filed its Response to Defendant Diaz's Motion to Sever (#98) on March 18, 2014.
The Court conducted a hearing in this matter on March 20, 2014. During the hearing, counsel for Defendant Diaz requested leave to file a supplemental brief to his joinder in the motion to sever on the grounds that Defendant Simon made statements to a confidential informant which implicate Defendant Diaz and therefore require severance if the statements are introduced at trial. The Court permitted Defendant Diaz to file a supplemental brief, but reserved its ruling on whether the supplemental motion should be denied for lack of timeliness. Defendant Diaz filed his Supplement to Motion to Sever (#108) on March 21, 2014. The Government filed its Response to Defendant Diaz's Supplement (#117) on March 24, 2014.
Count One of the Second Superceding Indictment (#77) ("Indictment") charges Defendants Diaz, Simon and Del Valle Garcia with conspiracy to interfere with commerce by robbery in violation of 18 U.S.C. § 1951. This alleged conspiracy began on or about April 4, 2013 and involved a plan to confront a delivery van driver at gunpoint, tie him up and cover his mouth with duct tape, and then drive the delivery van to another location where the Defendants would remove the pharmaceutical products which they would later sell. A confidential informant told the FBI about the planned robbery and agreed to feign participation in the conspiracy. On April 8, 2013, Defendants Diaz, Simon, Del Valle Garcia and the informant allegedly arrived in two vehicles at an elementary school located near the delivery van driver's home in preparation to commit the planned robbery. FBI agents arrested all three Defendants at that location.
Defendants Diaz, Simon and Del Valle Garcia are charged in Count Two of the Indictment with Attempted Interference with Commerce by Robbery and in Count Three with Possession of a Firearm in Further of a Crime of Violence in relation to the planned robbery on April 8, 2013. Defendant Del Valle Garcia is charged in Count Four with making a false statement to the FBI relating to items found in his automobile on April 8, 2013 and his alleged non-involvement in the robbery plan. Defendant Diaz is charged in Count Five with making a false statement relating to a firearm found in the vehicle occupied by him and Defendant Simon on April 8, 2013. Defendant Simon is charged in Count Six with being a felon in possession of a firearm in regard to the firearm found in the vehicle.
Defendants Diaz, Simon and Del Valle Garcia are charged in Count Seven with Conspiracy to commit theft from interstate shipment in violation of 18 U.S.C. § 371. This alleged conspiracy began no later than October 2012 and continued to on or about April 8, 2013. The Indictment alleges that the conspirators conspired to break into warehouses, storage facilities, and delivery vans and steal merchandise and pharmaceuticals. This alleged conspiracy culminated in the attempt to rob the delivery van driver on April 8, 2013.
The Indictment alleges the following overt acts in furtherance of the conspiracy charged in Count Seven: (1) Defendant Simon offered to sell two stolen handbags on October 24, 2012; (2) Defendants Diaz and Simon and a conspirator stole pre-retail medical products from a BeavEx delivery van on November 14, 2012; (3) Defendant Diaz stole pre-retail medical products from a BeavEx delivery van on March 13, 2013; (4) Defendant Simon engaged in a phone call with an individual on March 18, 2013 concerning the sale of controlled substances; and (5) Defendants Diaz, Simon and Del Valle Garcia took steps to carry out the robbery of the delivery van driver on April 8, 2013. Defendants Diaz and Simon are further charged with the theft from interstate shipments in Counts Eight, Nine and Ten relating to thefts that allegedly occurred on October 15, 2012, November 14, 2012 and March 13, 2013. Indictment (#77), pgs. 7-8. 
Defendant Del Valle Garcia argues that his trial should be severed from that of Defendants Diaz and Simon because he will be unfairly prejudiced by the spillover effect of the substantially greater evidence that will be introduced against the Codefendants. He argues that there is no evidence that he participated in or knew of the earlier crimes charged in Counts Seven through Ten. He also argues that evidence of his participation in the conspiracy to rob the delivery van driver on April 8, 2013 is very thin. Defendant Diaz similarly argues that the evidence against Defendant Simon is greater than the evidence against him and warrants severance of his trial from that of Simon.
According to the Government's summary of its evidence, Defendant Diaz and Simon first discussed the scheme to rob the delivery van driver with the confidential informant in early April 2013. During a monitored and recorded telephone call on April 4, 2013, Defendant Simon invited the informant to participate in the planned robbery and told the informant that his friend "Alexander" or "Ale" would assist in the robbery. The Government states that on the evening of April 7, 2013, Simon called the informant and told him to meet Simon's friend the next morning on Rochelle Street, and ride with the friend to the meet site. The Government alleges that Simon sent the informant's contact information to Defendant Del Valle Garcia that same evening and spoke to Defendant Del Valle Garcia on the phone. The next morning Defendant Del Valle Garcia picked up the informant at the pre-arranged location and they drove to the elementary school where the Defendants were arrested. Gloves and duct tape were found in Defendant Del Valle Garcia's automobile. Defendants Diaz, Simon and the informant had previously discussed using gloves and duct tape in the commission of the crime. Government's Response (#83), pgs. 3-5. The Government does not appear to contend that Defendant Del Valle Garcia participated in or had knowledge of the earlier overt acts or crimes charged in Counts Seven through Ten of the Indictment. The Government contends, however, Defendant Del Valle is criminally liable for the prior acts that were committed in furtherance of the theft conspiracy that he joined in April 2013.
Defendant Diaz's Supplement (#108) identifies three occasions on which Defendant Simon allegedly made statements to the confidential informant which implicated both Simon and Diaz in the crimes charged in the indictment. The confidential informant allegedly reported that on October 24, 2012 Defendant Simon provided him with two purses to see if he wanted to buy them. The informant also reported that Defendant Simon was part of Defendant Diaz's group that was involved in an October 14-15, 2012 theft of Coach purses. Supplement (#108), Exhibit A. On January 7, 2013, the confidential informant reported to the FBI that Defendant Simon told him about a theft of pharmaceutical drugs from a delivery van in November 2012 in which Defendant Diaz also participated. Id., Exhibit B. On March 18, 2013, the informant told the FBI about a theft of pharmaceutical drugs by Defendant Simon and Diaz on March 14, 2012. Id., Exhibit C.
Defendant Diaz also identifies statements made by Defendant Simon during a recorded conversation between the informant, Defendant Diaz and Defendant Simon on April 7, 2013 in which they discussed the planned robbery of the delivery van driver. Id., Exhibit D. Defendant Diaz specifically points to statements made by Defendant Simon that implicated Diaz in previous criminal activity. Supplement (#108), pg. 5. Defendant Diaz argues that these statements are not admissible against him, and, assuming that Defendant Simon does not testify, their admission will violate his Sixth Amendment right to confront and cross-examine the witnesses against him.
Rule 8(b) of the Federal Rules of Criminal Procedure permits the joinder of defendants who have allegedly participated in the same act or transaction or the same series of acts or transactions constituting an offense or offenses. Codefendants jointly charged are, prima facie, to be jointly tried. United States v. Mariscal, 939 F.2d 884, 885 (9th Cir. 1991). This rule "should be construed broadly in favor of initial joinder." United States v. Ford, 632 F.2d 1354, 1373 (9th Cir.), cert. denied, 450 U.S. 934, 101 S.Ct. 1399 (1981). Joinder of charges against multiple defendants is particularly appropriate when the charges involve substantially overlapping evidence. United States v. Vasquez-Velasco, 15 F.3d 833, 844 (9th Cir. 1994). There is a strong preference for joint trials because separate trials would "impair both the efficiency and the fairness of the criminal justice system" by requiring the United States to "bring separate proceedings, presenting the same evidence again and again[.]" Richardson v. Marsh, 481 U.S. 200, 210, 107 S.Ct. 1702, 1708 (1987). Joint trials also serve the interests of justice "by avoiding the scandal and inequity of inconsistent verdicts." Id. 481 U.S. at 211, 107 S.Ct. at 1709. See also Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 937 (1993). The Ninth Circuit has repeatedly stated that a joint trial is particularly appropriate in a conspiracy case where the evidence of the individual conspirators' conduct and statements in furtherance of the conspiracy are admissible against all of the defendants charged in the conspiracy. United States v. Hernandez, 952 F.2d 1110, 1114-15 (9th Cir. 1991); United States v. Freeman, 6 F.3d 586, 598 (9th Cir. 1993); and United States v. Cruz, 127 F.3d 791, 799 (9th Cir. 1997), abrogated on other grounds by United States v. Jimenez Recio, 537 U.S. 270, 123 S.Ct. 819 (2003).
Rule 14(a) of the Federal Rule of Criminal Procedure states that if joinder of offenses or defendants 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. To obtain severance, a defendant must satisfy the "heavy burden" of showing that prejudice would result from joinder. United States v. Sitton, 968 F.2d 947, 961 (9th Cir. 1992). United States v. Vaccaro, 816 F.2d 443, 448 (9th Cir. 1987) notes that because some prejudice is inherent in any joinder of defendants, "if only some' prejudice is all that need be shown, few, if any, multiple defendant trials could be held." The Supreme Court in Zafiro stated that "[d]efendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials." 506 U.S. at 540, 113 S.Ct. at 938. Severance should only be granted where there is a serious risk that a joint trial would either compromise a specific constitutional right of one of the defendants or prevent the jury from compartmentalizing the evidence as it relates to individual defendants. Even where the risk of prejudice seems high, such risk can often be cured by "less drastic measures, such as limiting instructions." Zafiro, 506 U.S. at 539.
The Ninth Circuit has developed a four-part test to aid the district court's determination of whether severance should be granted. These factors include: (1) whether the jury may reasonably be expected to collate and appraise the individual evidence against each defendant; (2) the judge's diligence in instructing the jury on the limited purposes for which certain evidence may be used; (3) whether the nature of the evidence and the legal concepts involved are within the competence of the ordinary juror; and (4) whether the defendants can show with some particularity, a risk that 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 innocense. United States v. Hernandez-Orellana, 539 F.3d 994, 1001 (9th Cir. 2008), citing United States v. Sullivan, 522 F.3d 967, 981-82 (9th ...