U.S. v. Stevens

• Decision Date: 27 April 2011
• Docket Number: 10–0200–02.,Cr. Nos. 10–0200–01
• Citation: 778 F.Supp.2d 683
• Parties: UNITED STATES of Americav.Robert E. STEVENS and Arthur Gilmore, Jr.
• Court: U.S. District Court — Western District of Louisiana

778 F.Supp.2d 683

UNITED STATES of America

v.Robert E. STEVENS and Arthur Gilmore, Jr.

Cr. Nos. 10–0200–01

10–0200–02.

United States District Court, W.D. Louisiana,Monroe Division.

March 3, 2011.Opinion Denying Reconsideration April 27, 2011.

C. Mignonne Griffing, U.S. Attorneys Office, Shreveport, LA, for United States of America.

RULING

ROBERT G. JAMES, District Judge.

Pending before the Court are Defendant Arthur Gilmore, Jr.'s (“Gilmore”) “Motion to Sever Trial of Defendant from Co–Defendant's Trial Because of Prejudicial Joinder” (“Motion to Sever”) [Doc. No, 37], “Motion to Dismiss Count 1 of the Indictment” (“Motion to Dismiss”) [Doc. No. 39], and “Motion for Bill of Particulars” [Doc. No. 40]. Defendant Robert E. “Red” Stevens (“Stevens”) has joined in each of the motions filed by Gilmore. [Doc. Nos. 36 & 43]. The Government has filed an “In Globo Response to Defense Motions” [Doc. No. 48]. Gilmore filed a “Reply to Government's In Globo Response to Defense Motions” (“Reply”) [Doc. No. 52].

For the following reasons, Defendants' motions are DENIED.

ALLEGED FACTS

Gilmore and Stevens are charged in a two-count Indictment with violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c), and the Hobbs Act, 18 U.S.C. § 1951. During the relevant time period of the Indictment, Gilmore and Stevens served as elected councilmen on the five-member Monroe City Council. The Government contends the evidence will show that both Defendants assisted a cooperating witness (“CW”) in specific matters coming before the City of Monroe in exchange for cash payments and other consideration. The Government seeks to prove that Gilmore and Stevens engaged in a criminal enterprise in order to enrich themselves via bribes in violation of RICO. In Section F of Count 1 of the Indictment, the Government identifies nine predicate acts of racketeering activity, upon which the RICO charges are based:

(1) Beginning on or about February 21, 2008, and continuing through February 28, 2008, Stevens committed public bribery by accepting and offering to accept $1,000.00 from the CW for assisting the CW in specific matters pending before the Board of Adjustments;

(2) Beginning on or about February 14, 2008, and continuing through March 27, 2008, Gilmore committed public bribery by accepting and offering to accept $1,000.00 and other valuable consideration from the CW for assisting the CW in specific matters coming before the City of Monroe;

(3) Beginning on or about April 2, 2008, and continuing through March 2, 2009, Gilmore committed public bribery by accepting and offering to accept a reduced purchase price for land from the CW for assisting the CW in specific matters coming before the City of Monroe;

(4) Beginning on or about June 10, 2008, and continuing through June 19, 2008, Stevens committed public bribery by accepting and offering to accept $500 from the CW for assisting the CW in specific matters coming before the City of Monroe;

(5) On or about July 1, 2008, Gilmore committed public bribery by accepting and offering to accept S230.00 from the CW for assisting the CW in specific matters coming before the City of Monroe; (6) Beginning on or about December 6, 2008, and continuing through December 18, 2008, Stevens committed public bribery by accepting and offering to accept $800 from the CW for assisting the CW in specific matters coming before the City of Monroe;

(7) Beginning on or about March 25, 2009, and continuing through April 7, 2009, Stevens committed public bribery by accepting and offering to accept $3,000.00 from the CW for assisting the CW in specific matters coming before the City of Monroe;

(8) Beginning on or about August 25, 2009, and continuing through August 28, 2009, Gilmore committed public bribery by accepting and offering to accept $207.00 from the CW for assisting the CW in specific matters coming before the City of Monroe; and

(9) Beginning on or about December 11, 2009, and continuing through December 17, 2009, Stevens committed public bribery by accepting and offering to accept $1,000.00 for assisting the CW in specific matters coming before the City of Monroe.

[Doc. No. 1].

The Government also contends that Defendants violated the Hobbs Act by obtaining property not due to them under color of official right.

In support of the charges against Defendants, the Government will present recordings of conversations between the CW and Gilmore and between the CW and Stevens.

LAW AND ANALYSIS

A. Motion to Sever

Although Defendants admit they were properly joined for trial under Federal Rule of Criminal Procedure 8(b), they move to sever their trials on the basis of prejudice pursuant to Federal Rule of Criminal Procedure 14(a). They contend that a severance is necessary because the evidence is “so clearly inter-related that it will be extremely difficult for the trier of fact to compartmentalize the evidence with respect to each defendant.” [Doc. No. 37, p. 2]; see Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Defendants further contend that the introduction of recordings of a potentially non-testifying co-defendant about activities similar to those of the other defendant “creates a severe Bruton problem.” [Doc. No. 37. p. 2]. If the recordings of both Defendants are used at trial, then each Defendant contends that he will not be able to cross-examine his Co–Defendant if that Co–Defendant elects not to testify.

The Government responds that severance under Rule 14 is not necessary because the case is not so complex nor the evidence so overlapping that jurors will have difficulty compartmentalizing the evidence against each Defendant. To the contrary, the Government points out that the CW dealt with each Defendant alone, so that only one Defendant is on tape at any time. Although the Government admits that a Co–Defendant may be mentioned as someone the CW has dealt with or referred to as a city councilman, the Government argues that any potential prejudice can be addressed with proper limiting instructions. Additionally, the Government argues that there is no Bruton problem because neither Defendant confessed and implicated his Co–Defendant. The Government notes that Defendants' statements on the recordings are admissible, non-testimonial co-conspirator statements.

The Fifth Circuit has consistently held that when persons are indicted together, they should be tried together. United States v. McKinney, 53 F.3d 664 (5th Cir.1995); United States v. Wilwright, 56 F.3d 586 (5th Cir.1995). Joint trials “promote efficiency and ‘serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.’ ” Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) (quoting Richardson v. Marsh, 481 U.S. 200, 210, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987)); see also United States v. Richardson, 167 F.3d 621, 624 (D.C.Cir.1999) (“Joint trials are favored in RICO cases”).

Rule 14 of the Federal Rules of Criminal Procedure provides that a court may grant a severance of defendants when it appears that a defendant will be prejudiced by a joint trial. Fed. R. Crim. P. 14. To justify severance of co-defendants, the movant must show that he would suffer specific and compelling prejudice against which the court is unable to provide protection, such as through a limiting instruction, and that this prejudice would result in an unfair trial. United States v. Kaufman, 858 F.2d 994, 1003 (5th Cir.1988) (citing United States v. Toro, 840 F.2d 1221, 1238 (5th Cir.1988)); see also United States v. Lewis, 476 F.3d 369, 383 (5th Cir.2007) (citing United States v. Sudeen, 434 F.3d 384, 387 (5th Cir.2005)). Defendants in a joint RICO trial “occupy ‘an uneasy seat,’ ” but the mere fact that “ ‘[i]t is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together,’ ” does not justify severance. United States v. DeCologero, 530 F.3d 36, 53 (1st Cir.2008) (quoting Krulewitch v. United States, 336 U.S. 440, 454, 69 S.Ct. 716, 93 L.Ed. 790 (1949) (Jackson, J., concurring)). That is, “[a] spillover effect, by itself, is an insufficient predicate for a motion to sever.” United States v. Bieganowski, 313 F.3d 264, 287 (5th Cir.2002). “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, or prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro, 506 U.S. at 539, 113 S.Ct. 933.

The Court finds no compelling reason for severance in this case. With regard to the interrelation of the evidence, the Court believes that the jury, with proper instruction, can separate and consider the Government's case against each Defendant. Therefore, this concern is insufficient to justify severance.

Defendants also raised Confrontation Clause issues under both Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Bruton. The Sixth Amendment's Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” In Crawford, the Supreme Court held that the Sixth Amendment bars the admission of testimonial hearsay ¹ against a criminal defendant unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. 541 U.S. at 68, 124 S.Ct. 1354. For a statement to be “testimonial” within the meaning of Crawford, it must have been made “ ‘under circumstances winch would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ ” Melendez–Diaz v. Massachusetts, 556 U.S. 662, 129 S.Ct. 2527, 2532, 174 L.Ed.2d 314 (2009) (quoting Crawford, 541 U.S. at 52, 124 S.Ct. 1354) (internal quotation marks omitted).²

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