U.S. v. Best

• Decision Date: 28 May 2002
• Docket Number: No. 2:00-CR-171.,2:00-CR-171.
• Citation: 235 F.Supp.2d 923
• Parties: UNITED STATES of America, Plaintiff, v. Jason BEST, et al. Defendants.
• Court: U.S. District Court — Northern District of Indiana

235 F.Supp.2d 923

UNITED STATES of America, Plaintiff, v. Jason BEST, et al. Defendants.

No. 2:00-CR-171.

United States District Court, N.D. Indiana, Hammond Division.

May 28, 2002.

Gary S. Germann, Clark W. Holesinger, Portage, IN, Thomas W. Vanes, Merrillville, IN, for Defendants.

ORDER

LOZANO, District Judge.

This matter is before the Court on Defendant's Memorandum of Law In Support of Motion to Sever, filed September 13, 2001 ("Motion to Sever").¹ After reviewing the written submissions of Defendant and the Government,² and after considering the issues during hearings on March 7, 2002, and May 8, 2002, for the reasons set forth below, Defendant's Motion to Sever is GRANTED.

BACKGROUND

The superseding indictment charges Defendant with nine separate counts, including, importantly, a violation of 18 U.S.C. section 924(j): firearms murder in furtherance of a drug trafficking crime (Count 10).³ The Government has announced that it will seek the death penalty upon securing a conviction under Count 10. See Notice of Intent to Seek the Death Penalty, filed October 10, 2001. As such, this is now a capital case under 18 U.S.C. section 3591 et. seq. In addition to the capital count, the superseding indictment charges Defendant with being a felon in possession of a firearm on the day of the murder (Count 11); conspiracy to possess and distribute crack and marijuana over a 25-month period (Count 1); maintaining three different crack houses (Counts 6, 7, 8, and 9); and possessing crack with the intent to distribute it (Counts 2 and 3). This matter is set for a 2-week jury trial on July 15, 2002.

Citing Rules 8(a) and 14 of the Federal Rules of Criminal Procedure, Defendant asks this Court to sever the drug-related counts (1, 2, 3, 6, 7, 8, and 9) from the murder-related counts (10 and 11). Through his pleadings and during arguments before the Court, Defendant makes three main arguments in support of his severance request. First, Defendant asserts that the drug and murder-related charges are improperly joined in one indictment because the two sets of charges are neither the "same in character" nor "based on the same acts or transactions." Def.'s Mem. in Supp. of Mot. to Sever at 2-3 (relying on portions of Fed.R.Crim.P. 8(a)). Second, Defendant maintains that the two sets of charges should be severed pursuant to Rule 14's prohibition on prejudicial joinder. In the absence of severance, Defendant notes that he will be unable to testify regarding the murder-related counts while remaining silent and putting the Government to its proof on the drug-related counts. Def.'s Mem. at 4-5. Defendant points to his Alibi Defense, filed July 5, 2001, to demonstrate that he has important testimony to give regarding the murder-related counts. Def.'s Reply In Supp. of Mot. to Sever at 4. Specifically, Defendant plans to testify that, at the time of the murder, he was at a Gary-area hospital with Yoshida Carter and his son, Jaylon Carter. Def.'s Reply at 4. With respect to the drug counts, Defendant anticipates "voluminous, contradictory, and confusing" testimony from Government witnesses, many of whom, he asserts, "have made deals and entered into pleas." Def.'s Reply at 3. Defendant believes that by remaining silent on those charges he will avoid "adding to the confusion" and may escape conviction. Def.'s Reply at 4. Third, Defendant argues that any evidence of his guilt on the drug-related charges may "spillover" onto the murder-related charges during the jury's deliberations.⁴ Def.'s Reply at 4.

Not surprisingly, the Government opposes Defendant's attempt to split this case in two. Initially, the Government notes that Defendant's analysis of joinder under Rule 8(a) fails to acknowledge that Rule 8(a) also provides that charges which are "based ... on two or more acts or transactions connected together or constituting parts of a common scheme or plan" may be properly joined in one indictment. Gov't Resp. at 2. Noting that proof of a drug trafficking crime is an offense element for a conviction under 18 U.S.C. section 924(j), the Government contends that the face of the indictment, alone, demonstrates that the drug and murder-related counts are properly joined under Rule 8(a). Gov't Resp. at 3. Next, the Government argues that severance under Rule 14 is not required every time a defendant seeks to testify as to one set of charges and remain silent as to others. Gov't Resp. at 3. The Government notes that Defendant's Motion to Sever failed to set forth any specific, exculpatory testimony that would satisfy the Seventh Circuit's test for severance in the context of a conflict between a defendant's desire to testify to some counts but not others. Gov't Resp. at 4. However, Defendant's reply brief summarized Defendant's anticipated alibi testimony and addressed other shortcomings identified by the Government in its response brief. In response to Defendant's strengthened arguments, at the March 7, 2002, hearing on this matter, the Government noted that Defendant's alibi might be established without his testimony — through hospital records and/or the testimony of other witnesses. Finally, the Government asserts that even if the Court were to grant the requested severance, during his trial on the murder-related charges, Defendant will still be subject to cross-examination on the drug conspiracy charge because proof of a drug trafficking crime is an offense element necessary for conviction under 18 U.S.C. section 924(j). Gov't Resp. at 4-5. Thus, the Government concludes, Defendant "would therefore gain little by testifying in a separate trial" on the murder-related counts. Gov't Resp. at 5.

After advising the parties at the May 8, 2002, hearing that the Court was seriously considering granting Defendant's Motion to Sever, the Court asked the parties to address whether the requested severance might eventually intrude upon the double jeopardy protections afforded by the Fifth Amendment. Specifically, the Court was concerned that because proof of a drug trafficking crime is an offense element under 18 U.S.C. section 924(j), if Defendant were first tried and convicted on the drug distribution conspiracy charged in Count 1, the Government might seek to rely on that conviction by asserting its collateral estoppel effect in Defendant's second trial on the 18 U.S.C. section 924(j) charge in Count 10 (firearms murder in furtherance of a drug trafficking crime). Such a scenario might run afoul of the Double Jeopardy Clause's bar on subsequent prosecutions that seek to "`establish an essential element of an offense charged ... [by] prov[ing] conduct that constitutes an offense for which [the] defendant has already been prosecuted.'" United States v. Cyprian, 23 F.3d 1189, 1197-98 (7th Cir. 1994) (alterations added) (quoting Grady v. Corbin, 495 U.S. 508, 521, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990)).

In response to the Court's concerns, Defendant and the Government each submitted additional pleadings addressing Defendant's Motion to Sever. In its new pleadings, the Government agreed that, if it first secures a conviction on the drug distribution conspiracy count, it "will not seek to prove the same conspiracy count [in a second trial on the 18 U.S.C. § 924(j) charge] by or through documents pursuant to a collateral estoppel theory," Gov't Second Supp. Resp. to Def.'s Mot. to Sever at 1. Indeed, the Government's use of collateral estoppel against a criminal defendant has met with disdain on at least one occasion. See United States v. Pelullo, 14 F.3d 881, 897 (3d Cir.1994) (finding district court erred by applying collateral estoppel effect of defendant's prior conviction of racketeering act by allowing conviction to be used as proof of predicate act on a RICO charge in subsequent trial). Even in the absence of the Government's agreement not to attempt to employ collateral estoppel in any second trial in this matter, the Court would not likely permit it.

Significantly, in his new pleadings, Defendant has expressly advised the Court that double jeopardy problems will not arise even if the Government secures a conviction on the drug distribution conspiracy charged in Count 1 and then, through a conventional presentation of evidence (i.e., not by relying on collateral estoppel principles), pursues the murder-related charges in a second trial. Def's Second Supp. to Def's Mot. to Sever at 1-2; cf. United States v. Hubbard, 61 F.3d 1261, 1275 (7th Cir.1995) (rejecting double jeopardy claim where evidence of firearms violation upon which defendant had been convicted in first trial was offered, for other purposes, in second trial on other charges). Although the Court is satisfied that separate trials of the two sets of charges will not violate Defendant's Double Jeopardy Clause rights, United States v. Powell, 894 F.2d 895, 900 (7th Cir.1990) (convictions on charges of carrying a firearm in connection with a drug trafficking crime and participating in drug distribution conspiracy do not violate Fifth Amendment's prohibitions on multiple punishments for same offense because Congress specifically authorized cumulative punishments for such crimes), Defendant's continuing request for severance constitutes a waiver of any resulting double jeopardy problems. Cyprian, 23 F.3d at 1198 (defendant "waived the right to challenge [c]ount ... on double jeopardy grounds because his trial counsel did not object when the trial judge severed [that] [c]ount ... from the remaining counts"); United States v. Andrews, 754 F.Supp. 1206, 1209 (N.D.Ill.1990) (Aspen, J.) (severing counts and noting that absence of objection indicated that "defendants are apparently willing to accept the potential but remote double jeopardy risk created by our plan in return for the comparative advantage of the trials as severed"). In the end, "a constitutional right may be forfeited in criminal as well as civil cases by the failure to make a timely assertion of the right before a...