U.S. v. Hendrix, Case No. 4:01CR173DJS(MLM) (E.D. Mo. 9/13/2001)
| Decision Date | 13 September 2001 |
| Docket Number | Case No. 4:01CR173DJS(MLM). |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. DERON EUGENE HENDRIX, Defendant. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the court on the motions of the parties. Pretrial matters were referred to the undersigned United States Magistrate Judge under 28 U.S.C. § 636(b). An evidentiary hearing with regard to defendant Hendrix's pretrial motions was held on July 20, 2001.1 This case is set for trial on September 17, 2001.
At the hearing on July 20, 2001, defendant was present in person and represented by counsel, Ms. Deborah Van Arink. The government was represented by Assistant United States Attorney Antoinette Decker. Prior to the presentation of evidence, the government informed the court that there were no out of court identifications of defendant Hendrix. Therefore, defendant Hendrix's Motion to Suppress Identification should be denied as moot. [182] The government further stated that it would produce to defendant all promises of immunity, leniency or preferential treatment made by the government during this case. Therefore, defendant Hendrix's Motion to Compel Disclosure of Existence and Substantial Promises of Immunity, Leniency or Preferential Treatment will be denied as moot. [183] The government also said that after the offers of leniency are disclosed, defendant may indicate those witnesses defendant wishes to interview and they will be made available for interview. Therefore, defendant Hendrix's Motion to Interview Prospective Government Witnesses will be denied as moot. [184]
Defendant has moved for severance of defendants pursuant to Rules 8(d) and 14 of the Federal Rules of Criminal Procedure. In determining whether a defendant is entitled to a separate trial, the court must decide whether joinder was proper under Rule 8 and whether joinder is likely to have a "substantial and injurious effect or influence in determining the jury's verdict." United States v. Lane, 474 U.S. 438, 449 (1986), quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946).
Joinder under Rule 8(b) requires that there be a factual interrelationship among all the joined defendants and counts. E.g., United States v. Bledsoe, 674 F.2d 647, 656-57 (8th Cir.), cert. denied, 459 U.S. 1040 (1982). In determining before trial whether or not joinder was proper, the court must see whether this factual interrelationship is alleged in the Indictment. Id. at 655; United States v. Andrade, 788 F.2d 521, 529 (8th Cir.), cert. denied, 479 U.S. 963 (1986); see also United States v. Jones, 880 F.2d 55, 62-63 (8th Cir. 1989). In this case, the actions of the defendants are factually interrelated. The Indictment alleges in Count I a conspiracy between and among the fourteen named defendants to knowingly and intentionally possess with intent to distribute crack cocaine and cocaine. Count II alleges a specific instance on which defendant Hendrix possessed with intent to distribute cocaine and Count III alleges a specific instance on which defendant Hendrix possessed with intent to distribute crack cocaine. Count VI alleges another specific instance on which defendant Hendrix possessed with intent to distribute cocaine. Other Counts allege specific instances of possession with intent to distribute by the other defendants. It is apparent on the face of the Indictment that joinder is proper.
"When defendants properly have been joined under Rule 8(b), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants." Zafiro v. United States, 506 U.S. 534, 539 (1983). "There is a preference in the federal system for joint trials of defendants who are indicted together." Zafiro, 506 U.S. at 537; United States v. Shivers, 66 F.3d 938, 939 (8th Cir.), cert. denied, 116 S.Ct. 581 (1995). Joint trials are favored because they "conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial." United States v. Lane, 474 U.S. at 449, quoting Bruton v. United States, 391 U.S. 123, 134 (1968); United States v. Cadwell, 864 F.2d 71, 73-74 (8th Cir. 1988). The court must look to the defendant's showing that prejudice would result from joinder and consider whether such prejudice can be avoided at trial. Very often relevant factors cannot be fully evaluated until during trial, e.g., the effect of limiting instructions, the strength of the government's evidence, the receipt of evidence not relevant to all defendants on all counts, and the number of defendants tried jointly. United States v. Sazenski, 833 F.2d 741, 745-46 (8th Cir. 1987), cert. denied, 485 U.S. 906 (1988).
"Rarely, if ever will it be improper for co-conspirators to be tried together." United States v. Stephenson, 924 F.2d 753, 761 (8th Cir.), cert. denied, 112 S.Ct. 63 (1991); United States v. Drew, 894 F.2d 965, 968 (8th Cir.), cert. denied, 494 U.S. 1089 (1990).
"It is well settled that defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials." Zafiro, 506 U.S. at 540. See also Layton v. South Dakota, 918 F.2d 739, 744 (8th Cir. 1990), cert. denied, 499 U.S. 953 (1991). Likewise, severance is not required: If the evidence against a co-defendant is more damaging, United States v. Pou, 953 F.2d 363, 369 (8th Cir.), cert. denied, 112 S.Ct. 1982 (1992); if the defendant's role in a conspiracy is minor, United States v. Pecina, 956 F.2d 186, 188 (1992); or if all of the evidence will not be admissible against all co-defendants, United States v. Sparks, 949 F.2d 1023, 1027 (8th Cir. 1991), cert. denied, 112 S.Ct. 1987 (1992).
"The mere fact that there is hostility among the defendants or one defendant may try to save himself at the expense of another is not sufficient grounds to require separate trials." United States v. Garret, 961 F.2d 743, 746 (8th Cir. 1992). "Mutually antagonistic defenses are not prejudicial per se." Zafiro, 506 U.S. at 538.
Anticipated exculpatory testimony of a co-defendant does not automatically require severance. United States v. Foote, 920 F.2d 1395, 1400 (8th Cir. 1990), cert. denied, 111 S.Ct. 2246 (1991). Foote, 920 F.2d at 1400 (quoting United States v. Reed, 733 F.2d 492, 508 (8th Cir. 1984)).
A joint trial would not deprive defendant of his right to ten peremptory jury challenges. Defendant has no such unqualified right. Rule 24(b) of the Federal Rules of Criminal Procedure states that "the defendant or defendants jointly [are entitled] to ten peremptory challenges." (emphasis added) In addition, the evidence in this case is not complex or confusing such that the jury will be unable to make a determination about the separate guilt of each defendant.
Severance is not required on the ground that the testimony of a co-defendant at trial would compel defendant to testify or to suffer prejudice as a result of a decision not to testify. An instruction cautioning the jury against drawing any adverse inference from his election not to testify will protect the defendant from any prejudice anticipated by the co-defendant's testimony. In addition, no comment concerning the failure of any defendant to testify is permitted.
Some factors will require pretrial severance. If the government intends to offer a confession against one defendant which incriminates a co-defendant, the co-defendant is entitled to a separate trial to avoid the prejudice of not being able to cross-examine the declarant. Bruton, 391 U.S. at 136 (1968). However, such prejudice may be avoided by the redaction from the confession of any reference to the co-defendant. United States v. Kaminski, 692 F.2d 505, 522 (8th Cir. 1982).
In the present case, the undersigned is not aware of any statements made by co-defendants that incriminate defendant.2 Based on the information available to the court at this time, the undersigned will recommend the Motion for Severance be denied. However, if there are such statements, if the government plans to use them, if they cannot be appropriately redacted, and the co-defendant making such statements is to be tried with defendant, the trial court may order severance. This information will not be completely known until immediately before the time of trial.
The government filed a five paragraph statement notifying defendant Hendrix of the evidence to be presented at the Evidentiary Hearing. [273] Prior to the hearing, counsel for defendant stated that as to ¶ 3 and ¶ 5, defendant waived challenge.3 Evidence was adduced as to the other three areas of evidence: the execution of a search warrant at 2604 N. 22nd Street on 4/21/98; the arrest of defendant and 7/14/98 and the execution of a search warrant at 4045 Olive, Apt. F., on 8/16/2000.
At the Evidentiary Hearing, the government presented the testimony of DEA Special Agent Richard (Rick) Russell and St. Louis Metropolitan Police Department Police Officer Kimberly Haley. Defendant did not testify or present witnesses. Based on the testimony and evidence adduced and having had an opportunity to observe the demeanor and evaluate the credibility of the witnesses, the undersigned makes the following findings of fact and conclusions of law.
Police Officer Kim Haley, who is assigned to the Mobile Reserve Unit of the St....
To continue reading
Request your trial