United States v. Carney
| Decision Date | 10 May 2023 |
| Docket Number | 3:22-cr-00174 |
| Parties | UNITED STATES OF AMERICA v. FREDRICK EUGENE CARNEY WILLIAM JOHN EWING III |
| Court | U.S. District Court — Middle District of Tennessee |
On January 9, 2023, a federal grand jury returned a Second Superseding Indictment against Defendants Frederick Eugene Carney and William John Ewing III. (Doc. No. 78). Carney and Ewing are charged with Hobbs Act robbery in violation of 18 U.S.C. § 1951 (Count One) for the robbery of a Cash Express in Murfreesboro, Tennessee, on February 18, 2022; and with armed bank robbery in violation of 18 U.S.C. § 2113 (Counts Two and Six), and use, carry, and brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c) (Counts Three and Seven) related to the robbery of a Region Bank in Smyrna, Tennessee on April 4, 2022, and a First Horizon Bank in Whites Creek Tennessee, on May 2, 2022. Carney is also charged with Hobbs Act robbery in violation of 18 U.S.C. § 1951, and use carry, and brandishing a firearm in relation to a crime of violence in violation 18 U.S.C. § 924(c) (Counts Four and Five) related to the robbery of a Cash Express in Greenbrier, Tennessee, on April 20, 2022.
In anticipation of a May 2, 2023 trial date, and in accordance with this Court's January 11, 2023 Order, the Defendants filed a number of motions to which the Government has responded. This Memorandum and Order addresses the following motions: Ewing's Objection to Misjoinder and Motion to Sever (Doc. No. 102), Ewing's Motion in Limine to Exclude Hearsay Statements Attributed to Frederick Carney (Doc. No. 103), Ewing's Motion to Exclude Evidence of Other Crimes or Acts (Doc. No. 100), Carney's Motion to Exclude 404(b) Evidence (Doc. No. 113), Ewing's Motion in Limine Regarding Gang References (Doc. No. 117), Ewing's Motion in Limine to Prevent Any Witness Stating Opinion on Identity of Person in Surveillance Photo (Doc. No. 104), Ewing's Motion to Disclose Transcripts from Grand Jury (Doc. No. 101), and motions by Ewing and Carney for additional peremptory challenges (Doc. Nos. 111, 112). Also pending before the Court is Carney's Motion to Suppress Evidence (Doc. No. 114), which will be decided by separate order.
Ewing moves to sever defendants and/or counts (Doc. No. 102) or, in the alternative, to exclude hearsay statements attributed to Fredrick Carney (Doc. No. 103). The Government responded in opposition to both motions. (Doc. Nos. 124, 125).
Ewing seeks to sever his trial from the trial of Carney and to sever the trial of the Counts charged against him (Counts One, Two, Three, Six, and Seven). He argues that the trial of charges against him must be severed from the trial of charges against Carney because he will suffer prejudice from a joint trial due to the spill-over effect of evidence against Carney that would not be admissible in a trial against only Ewing.[1] Ewing specifically points to prejudice from the jury hearing evidence of “other crimes” of Carney, including those charges in Counts Four and Five, and anticipated testimony that Carney admitted to committing the robberies charged in the Second Superseding Indictment and others, which, absent severance, presents issues under the Confrontation Clause.
Ewing also argues that the Second Superseding Indictment improperly joins charges arising out of four separate robberies because the robberies are separated by time and location. He argues the remedy to this misjoinder is for the Court to hold three separate trials on the charges arising out of each of the robberies for which he is accused. He proposes the Court hold one trial for Count One, another trial for Counts Two and Three, and a third trial for Counts Six and Seven. The Court observes that granting Ewing's motion would necessarily entail at least one more trial on the charges against Carney, resulting in a minimum of four separate trials on the charges in the Second Superseding Indictment. In the alternative, Ewing proposes severing the counts in which only Carney is charged (Counts Four and Five).
Federal Rules of Criminal Procedure 8 provides:
Ewing is properly joined under Rule 8. The Second Superseding Indictment charges Ewing and Carney with federal offenses in connection with a series of armed robberies in the Middle District of Tennessee during a three-month period in 2022. Ewing and Carney are alleged to have perpetrated three of the four robberies together. (Counts One, Two, Three, Four, Six, and Seven). Carney alone is charged related to the robbery on April 20, 2022. Ewing's argument that the offenses and defendants were not properly joined because the robberies took place on different dates and at different locations is without merit. Rule 8 plainly allows for joinder of offenses that are of the same or similar character and for joinder of defendants who are alleged to have participated in the same act or transaction. The charges in this case unquestionably meet this requirement.
Finding no misjoinder, the Court turns to Ewing motion for severance, which is governed by Federal Rule of Criminal Procedure 14:
The Supreme Court has explained that there is a preference for joint trials for defendants who are jointly charged in the same proceeding. See Zafiro v. United States, 506 U.S. 534, 537 (1993); see also United States v. Cordero, 973 F.3d 603, 624 (6th Cir. 2020) () (citation omitted); United States v. Tisdale, 980 F.3d 1089, 1094 (6th Cir. 2020) () (citations omitted). As such, “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. “The risk of prejudice will vary with the facts of each case,” and “less drastic measures, such as limiting instructions, will often suffice to cure any risk of prejudice.” Id. Motions for severance under Rule 14 fall under the “sound discretion of the district court.” Id. at 541.
Ewing argues that severance is appropriate because: (1) anticipated testimony regarding Carney's purported admissions will violate his rights under the Confrontation Clause; and (2) jurors will be unable to separate the evidence introduced against Carney resulting in a “spillover” effect. The Court considers each in turn.
The Government intends to offer testimony from a third-party witness that Carney told the witness that he (Carney) perpetrated robberies and that he committed some of the robberies with “another person.” (See Doc. No. 124). Ewing argues that, if Carney does not testify at trial, testimony regarding Carney's purported confessions violates the Confrontation Clause as stated in Bruton v. United States, 391 U.S. 123 (1968). Ewing insists that the only way to remedy the Bruton issue is to: (1) sever the defendants for trial; or (2) exclude testimony of the hearsay statements by Carney which purport to inculpate Ewing. He filed a separate motion to exclude testimony of Carney's confession on the same ground. (Motion in Limine, Doc. No. 103).
The Confrontation Clause of the Sixth Amendment guarantees the right of a criminal defendant “to be confronted with the witnesses against him.” U.S. Const., Amend. VI. “Ordinarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness ‘against' a defendant if the jury is instructed to consider that testimony only against a codefendant.” Richardson v. Marsh, 481 U.S. 200, 206 (1987). This is because the jury is presumed to follow the instructions given to them. Id. The Supreme Court found an exception to the general rule and held that a non-testifying defendant's statement cannot be admitted at a joint trial if it facially incriminates the codefendant. Bruton v United States, 391 U.S. 123, 13536 (1968). However, with a proper limiting instruction, Bruton does not preclude the admission of a confession that has been redacted to eliminate not only the defendant's name, but any reference to his existence, that becomes incriminating only when linked with other evidence at trial. Richardson, 481 U.S. at 211. ...
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