United States District Court, D. Nevada
ORDER (ECF NO. 239)
HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE.
the court is defendant Bruno Correia's Motion for
Severance under Fed. R. Crim. P. 14(a) (ECF No. 239), filed
January 17, 2018, the government's response (ECF No.
310), filed May 29, 2018, and Correia's reply (ECF No.
319), filed June 4, 2018.
Brazilian nationals are alleged to have conspired to commit
credit card fraud throughout the United States. The
group's fraud activities took place over several years
and were conducted by shifting assortments of members of the
group. On January 3, 2017, a grand jury returned an
indictment charging defendant Bruno Macedo Correia with the
following crimes: Count 1 - Conspiracy to Commit Fraud and
Related Activity in Connection with Access Devices (18 U.S.C.
§ 1029(b)(2)); and Count 29 - Conspiracy to Commit Money
Laundering (18 U.S.C. § 1956(h)).
he believes that a joint trial will violate his Sixth
Amendment right to confront witnesses against him and his
right to due process, Correia moves to sever his trial from
other co-defendants. Additionally, he argues that at a joint
trial, one of more co-defendants will present a mutually
exclusive and antagonistic defense to his defense. Finally,
he argues severance is required to promote judicial economy.
Correia notes that he is unable to provide succinct arguments
for severance at this time because he is still reviewing
discovery. The government responds that Correia has not
precisely identified any basis for severance, that
substantially all of the discovery has been provided, and
that judicial economy favors a single joint trial. Correia
replies that he cannot provide more specific information
because he believes he is missing substantial discovery, and
moves the court to stay the motion so that he can supplement
his motion after the government produces the items requested
in his motion to compel.
Rule of Criminal Procedure 8 allows the joinder of 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.”
Fed. R. Crim. P. 8(b). Rule 8 is construed broadly in favor
of initial joinder. United States v.
Vasquez-Velasco, 15 F.3d 833, 844 (9th Cir. 1994).
“Generally, defendants who are indicted together in
federal court should be jointly tried.” United
States v. Tootick, 952 F.2d 1078, 1080 (9th Cir. 1991).
“Joinder is favored in federal criminal cases largely
for reasons of judicial economy and efficiency, despite some
degree of bias inherent in joint trials.” Id.
provides relief from joinder of defendants under Rule 8(b)
through severance. Fed. R. Crim. P. 14(a). To warrant
severance, the defendant bears the heavy burden of
demonstrating that “a joint trial is so manifestly
prejudicial that the trial judge is required to exercise his
or her discretion in only one way-by severing the
trial.” United States v. Castro, 887 F.2d 988,
996 (9th Cir. 1989). “A defendant must show clear,
manifest or undue prejudice and violation of a substantive
right resulting from the failure to sever.”
Id. “The test is whether joinder is so
manifestly prejudicial that it outweighs the dominant concern
with judicial economy and compels the exercise of the
court's discretion to sever.” United States v.
Kenny, 645 F.2d 1323, 1345 (9th Cir. 1981) (citing
United States v. Brashier, 548 F.2d 1315, 1323 (9th Cir.
1976)). Further, “[j]oinder of charges against multiple
defendants is particularly appropriate when the charges
involve substantially overlapping evidence.” United
States v. Golb, 69 F.3d 1417, 1425 (9th Cir. 1995). The
moving party must show violation of one of his substantive
rights by reason of joint trial in such a magnitude that he
would be denied a fair trial. United States v.
Douglass, 780 F.2d 1472, 1478 (9th Cir. 1986).
Use of Co-defendants' Statements
anticipates that the government will use co-defendants'
statements to implicate him because he has not located any
relevant evidence in the discovery that is probative of his
direct connection with any of the overt acts or any criminal
activity identified in the indictment. He believes that one
or more of the co-defendants will testify for the government.
The government responds that it recognizes its obligations
under the Bruton v. United States, 391 U.S. 123, 126
(1969), line of cases. Further, the government notes that
there is no basis for severance if a co-defendant testifies
against Correia because he will have the opportunity to
cross-examine that witness.
Bruton, the Supreme Court held that the
Confrontation Clause of the Sixth Amendment forbids the
admission of a non-testifying co-defendant's confession
in a joint trial, even where the jury has been given a
limiting instruction. See id., at 137. There is no
Bruton violation, however, where the co-defendant
testifies and so is subject to cross-examination at trial.
United States v. Haili, 443 F.2d 1295, 1300 (9th
Cir. 1971). Here, despite receiving substantial discovery,
Correia has not identified a particular co-defendant
statement which he believes may be used against him at
trial. Mere speculation that some unidentified
statement might create a Bruton problem in the
future does not meet the burden of overcoming the strong
presumption in favor of joinder. See, e.g., United States
v. Rogers, 2011 WL 2516153, at *1 (D. Ariz. 2011).
Severance is denied on this basis.
“Spill Over” Prejudice
claims that he will be prejudiced by joinder because the jury
will consider the vast information and numerous witnesses and
then presume that a similar amount of evidence must exist
against him, which will result in “spill over”
prejudice. The government responds that Correia only
complains broadly about volumes of evidence, but does not
identify any specific prejudice resulting from a combined
trial. Moreover, it argues that, particularly in a conspiracy
case, a defendant cannot complain of spillover since the
defendant's co-conspirators' conduct is admissible
evidence against the defendant.
possible that the evidence is stronger against Correia's
co-defendants than it is against him. However, that fact,
standing alone, is not sufficient to justify severance.
See United States v. Marcello, 731 F.2d 1354, 1360,
(9th Cir. 1984) (“The fact that there may be more
incriminating evidence against one defendant than there is
against another, is insufficient to justify a separate trial
for the latter.”). Rather, the focus is on
“whether the jury can reasonably be expected to
compartmentalize the evidence as it relates to separate
defendants in the light of its volume and limited
admissibility.” United States v. Ramirez, 710
F.2d 535, 546 (9th Cir. 1983). “The prejudicial effect
of evidence relating to the guilt of codefendants is
generally held to be neutralized by careful instruction by
the trial judge.” United States v. Hernandez,
952 F.2d 1110, 1116 (9th Cir. 1991) (quoting United
States v. Escalante, 637 F.2d 1197, 1201 (9th Cir.
1980)). “A defendant seeking severance based on the
‘spillover' effect of ...