United States v. Harvey, No. S1-4:02 CR 482 JCH DDN (E.D. Mo. 2003)
| Decision Date | 01 July 2003 |
| Docket Number | No. S1-4:02 CR 482 JCH DDN.,S1-4:02 CR 482 JCH DDN. |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. CASSANDRA HARVEY and JOSHUA HARVEY, Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
This action is before the Court upon the pretrial motions of the parties which were referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b). An evidentiary hearing was held on April 17, 2003.
Defendant Cassandra Harvey (Cassandra) has moved for disclosure of results or reports of any scientific tests or experiments (Doc. 20), for disclosure of written summaries of testimony of expert witnesses (Doc. 21), and for production of evidence seized (Doc. 23). In response to these motions, the parties agreed that all such evidence and information, which the defendants have a right to receive, either have been provided or will be provided to them. Therefore, these motions will be denied as moot.
Cassandra also has moved for an order compelling the government to cease any forfeiture proceedings and release her assets. (Doc. 22.) Because this is a dispositive matter that depends upon the ultimate trial proceedings, the undersigned will deny the motion without prejudice to its being refiled before the District Judge in the context of the trial.
The United States has moved for the continued detention of defendants Cassandra (Doc. 52) and Joshua Harvey (Joshua) (Doc. 53). In light of the relevant factors, including, in part, that the charged offense involves a narcotic drug, the weight of the evidence, the risk of flight, and the danger to the community, the government's motions are granted. See 18 U.S.C.A. § 3142(g)(1)-(4) (); United States v. Angiulo, 755 F.2d 969, 974 (1st Cir. 1985) ().
Cassandra has moved under Federal Rule of Criminal Procedure 14 for severance of defendants, arguing that (1) it "appears" to her that codefendant Joshua will not only blame her but will use the defense of duress or coercion by her, (2) there will be a serious conflict at trial between her and Joshua's versions of the facts, (3) she will have to defend against both the government's allegations and those of Joshua, and (4) there is a possibility she would not testify at trial and he would testify as to his version of the events. Citing De Luna v. United States, 308 F.2d 140 (5th Cir. 1962), she argues that such circumstances would deny her a fair trial.1 (Doc. 42.)
Rule 14 provides that, if the joinder of defendants in an indictment appears to prejudice a defendant, the court may order separate trials. Fed. R. Crim. P. 14(a). There is a predilection in the federal courts, however, to try all charged co-conspirators together, especially where the proof against each is based upon the same facts and evidence. See United States v. Washington, 318 F.3d 845, 858 (8th Cir. 2003); United States v. Henderson-Durand, 985 F.2d 970, 975 (8th Cir.), cert. denied, 510 U.S. 856 (1993); United States v. Huff, 959 F.2d 731, 736 (8th Cir.), cert. denied, 506 U.S. 855 (1992). Moreover, 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." Bruton v. United States, 391 U.S. 123, 134 (1968). "In ruling on a motion for severance the district court weighs the inconvenience and expense of separate trials against the prejudice resulting from a joint trial of codefendants." United States v. Brown, 331 F.3d 591, 595 (8th Cir. 2003); see United States v. Lane, 474 U.S. 438, 449 (1986) ().
In De Luna, the majority held [i]n a criminal trial in a federal court an accused has a constitutionally guaranteed right of silence free from prejudicial comments, even when they come only from a codefendant's attorney. If an attorney's duty to his client should require him to draw the jury's attention to the possible inference of guilt from a co-defendant's silence, the trial judge's duty is to order that the defendants be tried separately.
308 F.2d at 141. It also held that the argument of counsel for codefendant Gomez—that the jury should infer guilty responsibility from de Luna's failure to testify—was proper. Id. at 143 (). The concurring judge held that it was proper for Gomez's counsel to invoke his client's testimony, "but it was improper for him to comment upon the fact that de Luna had not taken the stand." Id. at 155. Such a comment must be prevented by the trial judge. Id. ().
"The need for severance often cannot be determined until trial." United States v. McGuire, 827 F.Supp. 596, 596 (W.D. Mo. 1993); accord United States v. Sazenski, 833 F.2d 741, 745-46 (8th Cir. 1987), cert. denied, 485 U.S. 908 (1988) (). For several reasons, the court will deny the motion for severance without prejudice to renewal at trial. First, Cassandra's argument about the expected defense of Joshua and whether he will testify in his own defense is purely speculative at this time. See United States v. Gravatt, 280 F.3d 1189, 1191 (8th Cir. 2002) (); see also United States v. Bordeaux, 84 F.3d 1544, 1547 (8th Cir. 1996). Second, the actual circumstances of Joshua's case, if it goes to the jury, may not unduly prejudice Cassandra, or its potential prejudice may be lessened by cautionary instructions and other trial court rulings. See United States v. Goings, 313 F.3d 423, 426 (8th Cir. 2002) (per curiam) (). Should it become evident that the trial circumstances work a constitutional deprivation on Cassandra, she may move again at trial for severance.
(10) evidence obtained pursuant to a search warrant on Earthlink, Inc. (Earthlink) (Doc. 43), and
(11) evidence seized from PayPal.com, Inc. (PayPal) (Doc. 44). Defendant Joshua has moved to suppress evidence and statements (Doc. 29), the fruits of illegal electronic and other surveillance (Doc. 30), physical evidence (Doc. 77), and statements (Doc. 78).
At the hearing, counsel for all parties agreed to the government's written stipulations regarding the pretrial motions of defendants, filed April 16, 2003. By this agreement, the parties stipulated that federal Drug Enforcement Administration (DEA) Special Agent Karin Chinoski would testify and establish the foundation information regarding the admission of Gov. Exs. A-1 to A-28, B-1 to B-10, C-1 to C-12, D-1 to D-8, and E-1 to E-12.
From the evidence adduced at the hearing, the undersigned makes the following findings of fact2 and conclusions of law:
FACTS
1. During 2002, Agent Chinoski investigated persons suspected of trafficking in 1,4-Butanediol (BD), a controlled substance analogue.3 From a confidential informant she learned that email account (address) bwize@earthlink.net (BWIZE) was being used for BD distribution. Thereafter, she investigated the BWIZE account, obtained information, and decided to apply, under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, for an order authorizing the interception of communications to and from this account. She learned that such an interception had been done only once before in a federal investigation in the United States.
Original BWIZE interception
2. On June 28, 2002, in Cause No. 4:02 MC 192 CDP, Assistant United States Attorney (AUSA) James Delworth applied to District Judge Catherine D. Perry for an order, under 18 U.S.C. § 2518 authorizing the interception of electronic communications to and from the user account of BWIZE at Earthlink, an Internet Service Provider (ISP). The application was for the interception of electronic communications of both defendants and Lawrence Waychoff for no longer than thirty days. AUSA Delworth described the subject matter of the investigation as violations of 21 U.S.C. §§ 813, 841, 843(b), and 846, regarding trafficking in a controlled substance analogue; and violations of 18 U.S.C. §§ 2, 1952, 1956, and 1957, regarding unlawful financial activities. He generally described the facts specifically set forth in Agent Chinoski's affidavit and generally concluded that there was probable cause to believe that (1) the three subjects had violated, were violating, and...
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