United States v. Fletcher

• Decision Date: 02 July 2013
• Docket Number: No. 3:09-00243,3:09-00243
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. DAVID A. FLETCHER, Defendant.
• Court: U.S. District Court — Middle District of Tennessee

UNITED STATES OF AMERICA, Plaintiff,

v.DAVID A. FLETCHER, Defendant.

No. 3:09-00243

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

ENTERED: July 2, 2013

Chief Judge Haynes

MEMORANDUM

Before the Court are Defendant's motion to sever or in the alternative, motion for recusal (Docket Entry No. 140) to which the Government responded (Docket Entry No. 142), and the Government moves for a ruling (Docket Entry Nos. 143 and 146). Defendant seeks a severance of the charge of felon in possession of ammunition in Count One of the Superseding Indictment from the charges of knowingly making a false statement and obstruction of justice in Counts Two and Three, respectively, or in the alternative, for the Court to recuse itself from Counts Two and Three.

Defendant contends that under Fed. R. Crim. P. 8 Count One is misjoined with Counts Two and Three because the counts are not of the "same or similar character," and that the charge of felon in possession of ammunition, and allegations of perjury are not "connected with or constitute parts of a common scheme or plan." Defendant also seeks severance under Fed. R. Crim. P. 14, contending: (1) that he will be prejudiced as to Count One as the jury will hear evidence that Defendant gave false testimony as alleged in Counts Two and Three; (2) that a joint trial will confuse the jury who will be asked to separate facts between two different offenses and elements, one thatoccurred in August 2009 and the other in December 2011 during a suppression hearing; (3) that the Government should not be allowed to join counts to strengthen a potentially weak case as the jury would not know Defendant had a prior felony drug conviction or was charged with possession of ammunition if there were two separate trials; (4) that Defendant may elect to testify about the charges in Counts Two and Three, but may elect not to testify as to the allegations in Count One; and (5) that the Court may be called as a witness as to the materiality of Defendant's alleged false statements at the suppression hearing, so that a severance and perhaps recusal of the Court are necessary for Counts Two and Three.

In response, the Government contends that the perjury and obstruction of justice counts are connected and therefore properly joined with the felon in possession count because Defendant committed perjury and obstruction of justice at a hearing regarding the felon in possession count. The Government contends that even if the counts were severed, evidence of Defendant's attempt to obstruct justice would be introduced at the felon in possession trial as evidence of criminal intent and state of mind and felon in possession evidence would be offered to show Defendant's motive for committing perjury and obstruction of justice. The Government further contends (1) that the counts are not so complicated that the jury would be unable to consider each count separately in a joint trial; (2) that Defendant has neither made a convincing showing that he has important testimony to give as to the perjury/obstruction counts, nor a strong need to refrain from testifying on the felon in possession count; and (3) that the Court need not recuse itself because the Court is not an indispensable witness as there are multiple witnesses to Defendant's testimony and its impact and the Government does not intend to call the Court as a witness and Defendant has only stated that he "may" call the Court as a witness.

I. MOTION TO SEVER

A. Procedural History

On October 7, 2009, Defendant, David A. Fletcher, was indicted in the Middle District of Tennessee for being a felon in possession of ammunition. Prior to trial, Defendant filed a motion to suppress certain evidence seized by the Government and statements allegedly made at the time of his arrest on August 7, 2009. On December 9, 2011, the Court conducted a hearing on the motion to suppress. (Docket Entry No. 84). On May 2, 2012, the Court entered an Order denying defendant's motion to suppress. (Docket Entry No. 99). On August 21, 2012, Defendant's jury trial commenced. On August 23, 2012, a mistrial was declared by the Court based on the jury's failure to reach a unanimous verdict on the charge of felon in possession. (Docket Entry No. 112). As a result of Defendant's testimony at the suppression hearing, on February 20, 2013, the Government filed a Superseding Indictment with the felon in possession charge and adding Counts Two and Three, false testimony and obstruction, in violation of 18 U.S.C. §§ 1623(a) and 1503.

B. Conclusions of Law

Defendant's motion is based upon Fed. R. Crim. P. 8(a) and 14. Rule 8(a) applies to separate counts that to be joined for trial must be "of the same or similar character, or based on the same act or transaction, or connected with or constitute parts of a common scheme or plan." The purpose of Rule 8(a) is '"to promote the goals of trial convenience and judicial efficiency.'" United States v. Hang Le-Thy Tran, 433 F.3d 472, 478 (6th Cir. 2006) (citation omitted). "Whether joinder [is] proper under Rule 8(a) is determined by the allegations on the face of the indictment." United States v. Chavis, 296 F.3d 450, 456 (6th Cir. 2002) (citations omitted). The Court has "no discretion" in granting severance "[i]f joinder of . . . multiple offenses does not comply with the requirements ofRule 8." Id. (citation omitted). Yet, "'[i]f the offenses arise out of separate and unrelated transactions, there is likely to be little savings in time and money in having a single trial.'" Id. at 460 (quoting Charles Alan Wright, 1A Federal Practice and Procedure: Criminal § 143 (3d ed. 1999)).

"Rule 14 authorizes a defendant to move for severance in situations in which joinder of multiple offenses or defendants is proper under Rule 8, but nonetheless would be prejudicial to the defendant." Id. at 457 (citing Zafiro v. United States, 506 U.S. 534, 538 (1993) (parenthetical omitted) and Schaffer v. United States, 362 U.S. 511,514 (1960)). Thus, "Rule 14(a) is permissive, not mandatory." United States v. James, 496 F. App'x 541, 546 (6th Cir. 2012). Under Rule 14(a) of the Federal Rules of Criminal Procedure, if an indictment "appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires." "When the risk of prejudice is high,... limiting instructions, often will suffice to cure any risk of prejudice." Zafiro, 506 U.S. at 539. "'[A]bsent a showing of substantial prejudice, spillover of evidence from one [count] to another does not require severance.'" Iran, 433 F.3d at 478 (quoting United States v. Johnson, 763 F.2d 773, 777 (6th Cir. 1985)). A defendant seeking severance "has a heavy burden of showing specific and compelling prejudice." United States v. Harris, 9 F.3d 493, 500 (6th Cir. 1993).

Here, Defendant's perjury and obstruction of justice charges are connected to the felon in possession of ammunition charge as Defendant allegedly perjured himself when testifying at the December 9, 2011 suppression hearing concerning the felon in possession count. If the counts were severed, evidence of Defendant's alleged perjury and obstruction of justice would be introduced at Defendant's trial on the felon in possession count as evidence of Defendant's criminal intent and state of mind. See United States v. Murphy, 836 F.2d 248, 255 (6th Cir. 1988) ("Had the defendantsought and obtained a severance of the obstruction and perjury charges from the mail fraud charges, the evidence of defendant's conduct which formed the basis of the mail fraud prosecutions would have been admissible under the provisions of Evidence Rule 404(b) to set in proper perspective the defendant's conduct as it related to the obstruction and perjury charges."); United States v. Little Dog, 398 F.3d 1032 (8th Cir. 2005) (concluding that defendant's obstruction charge was connected to and interrelated with the sexual abuse charges, as evidence of defendant's attempt to tamper with or influence witnesses would have been admissible in his sexual abuse trial to show criminal intent and state of mind and evidence of the sexual abuse charges would be required to show defendant's motive for seeking to influence witnesses giving false testimony in a separate trial for obstruction); United States v. Potamitis, 739 F.2d 784, 791 (2d Cir. 1984) (where defendant was jointly tried for bank larceny, interstate transportation of stolen property, and conspiracy with making fraudulent statements to the FBI, perjury before the grand jury, and obstruction of justice, the Second Circuit stated, "The law in this circuit clearly supports the joinder of underlying substantive crimes with perjury counts where, as here, the false declarations concern the substantive offenses.").

Further, the Court concludes that Defendant would not be prejudiced by joinder of the counts and any threat of a spillover effect could be remedied by jury instructions instructing the jury that each count is to be considered separately and guilt on one count does not mean guilt on another count. See Murphy, 836 F.2d at 256 (where the Sixth Circuit noted that "the mail fraud charges constituted conceptually a totally separate type of crime from that of obstructing justice and perjury," it found "no prejudicial 'spillover' effect requiring a vacation of the convictions for obstructing justice and perjury . . .."): accord Callanan v. United States, 881 F.2d 229, 236 (6th Cir. 1989). A jury "is presumed capable of sorting out evidence and considering each count and each defendantseparately." United States v. Swift, 809 F.2d 320, 323 (6th Cir. 1987). Here, the counts involve Defendant illegally possessing ammunition and lying about whether he had a driver's license registered to the apartment where he was arrested in an effort to distance himself from the location where the ammunition was seized. Thus, the Court concludes that...