United States v. Ledbetter

• Decision Date: 02 October 2015
• Docket Number: Case No. 2:14-CR-127,Case No. 2:15-CR-080
• Citation: 137 F.Supp.3d 1042
• Parties: United States of America, Plaintiff, v. Robert B. Ledbetter, et al. Defendants.
• Court: U.S. District Court — Southern District of Ohio

137 F.Supp.3d 1042

United States of America, Plaintiff,

v.Robert B. Ledbetter, et al. Defendants.

Case No. 2:15-CR-080

Case No. 2:14-CR-127

United States District Court, S.D. Ohio, Eastern Division.

Signed October 02, 2015

David Devillers, Kevin W. Kelley, United States Attorney, Brian Martinez, U.S. Attorney's Office, Columbus, OH, for Plaintiff.

Jeffrey Allen Berndt, Columbus, OH, Richard Allen Cline, Cline, Mann & Company LLC, Powell, OH, Diane M Menashe, Diane M. Menashe Co LPA, Thomas F. Hayes, Law Office of Thomas F. Hayes LLC, Frederick Douglas Benton, Jr., James Lloyd Ervin, Jr., Roetzel & Andress LPA, Kort W. Gatterdam, Kevin Patrick Durkin, Carpenter Lipps & Leland LLP, Isabella Dixon, S. Michael Miller, Kegler Brown Hill & Ritter, Gregory William Meyers, Kirk A. McVay, Office of the Ohio Public Defender, Paula Milsom Brown, Kravitz, Brown & Dortch, LLC, Gregory Scott Peterson, Zachary Swisher, Peterson, Conners, Fergus & Peer LLP, Todd Aaron Long, Koenig & Long, LLC, Mark C. Collins, Mark C. Collins Co LPA, Alan John Pfeuffer, The Law Office of Alan Pfeuffer, Steven S. Nolder, Scott & Nolder Law Firm, Jon Joseph Saia, Saia & Piatt PLL, David H. Thomas, Taft Stettinius & Hollister LLP, Larry Wayne Thomas, Andrew P. Avellano, Dennis Celestino Belli, Robert F. Krapenc, Kevin R. Conners, W. Joseph Edwards, Joseph Dues Reed, Columbus, OH, Cheryll A. Bennett, Federal Public Defender, Dayton, OH, David Jan Graeff, Westerville, OH, Andrew Sanderson, J. Kristin Burkett, Burkett & Sanderson, Inc., Newark, OH, James David Gilbert, Law Offices of James D. Gilbert, LLC, Dublin, OH, Stephen Dwight Dehnart, Westerville, OH, for Defendants.

OPINION & ORDER

ALGENON L. MARBLEY

, UNITED STATES DISTRICT JUDGE

This matter comes before the Court on the Government's notice of proposed trial groupings and Defendants' motions to sever due to an alleged misjoinder under Federal Rule of Criminal Procedure 8(b)

or prejudicial joinder under Rule 14.¹ Under the Government's proposal, the defendants would stand trial in three separate groupings, based on a commonality of evidence and by trying together all co-defendants who are charged in each substantive murder count. Defendants oppose these trial groupings for a host reasons, including the potential for "spillover" evidence from their co-defendants' charges, the purported risks associated with "mega-trials," the possibility that certain defendants will present antagonistic defenses, and alleged Confrontation Clause issues concerning the admission of their co-defendants' out-of-court statements. The Court finds joinder of the proposed trial groupings proper and not unduly prejudicial. Accordingly, the Court DENIES Defendants' motions for severance.

I. BACKGROUND

On June 23, 2014, a federal grand jury returned a twenty-five count Indictment in Case Number 2:14-cr-127, charging seventeen defendants with a number of violations under federal law connected to the defendants' alleged involvement in the Short North Posse, an alleged criminal organization in the Short North area of Columbus, Ohio. (Doc. 14). The first count in the Indictment alleged the existence of a RICO conspiracy from 2005 until 2014, in which the enterprise, the Short North Posse, committed murder, attempted murder and robbery, distributed and possessed with the intent to distribute controlled substances, tampered with witnesses, and committed acts of extortion, robbery, and retaliation against witnesses. The remaining counts included eleven counts of murder in aid of racketeering, one count of murder through the use of a firearm during and in relation to a crime of violence, four counts of murder through the use of a firearm during and in relation to a drug trafficking crime, one count of conspiracy to murder a witness, one count of use of a firearm during and in relation to a crime of violence, four counts of being a felon in possession of a firearm, one count of possession with intent to distribute cocaine, and one count of possession with intent to distribute heroin.

On October 20, 2014, the grand jury returned a Superseding Indictment adding three new defendants and thirteen counts, bringing the total to twenty defendants and thirty-eight counts. (Doc. 300). These thirteen new counts included one count of attempted possession with intent to distribute cocaine, five counts of use of a firearm during and in relation to a drug trafficking crime, murder in aid of racketeering, four counts of possession with the intent to distribute marijuana, one count of attempted possession with intent to distribute marijuana, and one count of witness tampering. The three new defendants were Andre M. Brown, Johnathan Holt, and Christopher V. Wharton.

On April 2, 2015, the grand jury returned another Indictment that was later assigned as a separate case—Case Number 2:15-cr-080. The 2015 Indictment named four defendants (Robert B. Ledbetter, Christopher A. Harris, Rashad A. Liston, and Deounte Ussury), all of whom were charged previously in the Superseding Indictment in Case Number 2:14-cr-127. The 2015 Indictment also included two new counts: one for murder in aid of racketeering and one for murder through the use of a firearm during and in relation to a drug trafficking crime—both related to the murder of Marschell Brumfield, Jr. in 2007. Due to the similarity of the charges in both cases and the fact that all four defendants also were charged in Count One of the Superseding Indictment for their role in the RICO conspiracy, this Court joined Case Number 2:15-cr-080 with Case Number 2:14-cr-127 under Federal Rule of Criminal Procedure 13

. (Doc. 595).

In total, fourteen defendants are charged in the RICO conspiracy count, which includes 112 overt acts allegedly committed in furtherance of the conspiracy. The Government, moreover, has reserved the right to adduce evidence of any overt act about which it has evidence, regardless of whether the Superseding Indictment specifically identifies that overt act. The six defendants who do not face the conspiracy charge are all charged with at least one count of murder in aid of racketeering relating to their membership and/or association with the Short North Posse, among other charges. Under the Superseding Indictment in Case Number 2:14-cr-127 and the 2015 Indictment in Case Number 2:15-cr-080, the defendants collectively face a total of forty counts. Although fourteen defendants initially faced a potential capital prosecution, the Government has informed the Court and the defendants of its intent not to seek the death penalty for any of the defendants. (Doc. 563).

Due to the complexity of this case, society's need for speedy and efficient trials, and the defendants' interest in fair and accurate results, the Court requested that the Government propose a multi-trial plan for these proceedings. (See Doc. 531). Consistent with that request, the Government proposed splitting the defendants into three separate groupings "based primarily on commonality of evidence and by grouping the defendants with all of their co-defendants in each of the charged murders." (Doc. 639). Under the Government's proposal, each trial would include Count One (the overarching RICO conspiracy charge), at least two murder counts, and the remaining substantive counts applicable to the specified defendants. (Id. ).

A. Trial I—April 4, 2016

The first trial would center on the RICO conspiracy charge (Count One), as well as the murders of Alan Johnson (Count Four), Donathan Moon (Counts Five and Six), Marcus Peters (Counts Seven and Eight), Rodriccos Williams (Counts Nine and Ten), Dante Hill (Count Eleven), Tyrell Davis (Counts Fifteen and Sixteen), Crystal Fyffe (Counts Twenty-Nine, Thirty, and Thirty-One), and Marschell Brumfield, Jr. (2015 Indictment, Counts One and Two). (Id. ). The first trial thus would involve the following eight defendants, whom the Government deems "most likely to be going to trial" in light of ongoing plea negotiations: Robert B. Ledbetter, Christopher A. Harris, Robert L. Wilson III, Rashad A. Liston, Deounte Ussury, Rastaman A. Wilson, Clifford L. Robinson, and Troy A. Patterson.² (Id. ). Ledbetter, Harris, Wilson III, Liston, and Ussury each face the RICO conspiracy count. (Doc. 300). Wilson, Robinson, and Patterson, on the other hand, do not. (Id. ). Nevertheless, Wilson, Robinson, and Patterson each face one count of murder in aid of racketeering (Counts Five and Fifteen, respectively) with respect to the same RICO enterprise that the Government alleges under Count One. (Id. ).

B. Trial II—July 11, 2016 (Tentative)

The second trial likewise would center on the RICO conspiracy charge (Count One), as well as the murders of Shaniqua Hester (Count Two) and Michael Teague (Count Three). (Doc. 639). The second trial would involve the following five defendants: Lance A. Green, Allen L. Wright, Tysin L. Gordon, Thomas E. Coates, and Freddie K. Johnson, all of whom face the RICO conspiracy count. (Id. ). The second trial also would include two felon-in-possession counts applicable only to Johnson (Counts Thirty-Two and Thirty-Three). (Id. ).

C. Trial III—September 26, 2016 (Tentative)

Finally, the third trial would center on the RICO conspiracy charge (Count One), as well as the murders of Ella Palmer (Count Twelve), Shane McCuen (Counts Thirteen and Fourteen), and Quincy Battle (Counts Nineteen and Twenty). (Id. ). The third trial would involve the remaining seven defendants: Ishmael Bowers, Joseph Hill, DeShawn Smith, Lance Reynolds, Andre M. Brown, Jonathan Holt, and Christopher V. Warton.³ (Id. ). Hill, Smith, Reynolds, and Brown each face the RICO conspiracy count. (Doc. 300). Bowers, Holt, and Wharton, on the other hand, do not. (Id. ). Nevertheless, Bowers, Holt, and Wharton each face one count of murder in aid of racketeering (Counts Thirteen and Nineteen, respectively) with respect to the same alleged RICO enterprise that the Government must prove under Count One. (Id. ). The third trial also would include...