United States v. Savage

• Decision Date: 18 December 2012
• Docket Number: CRIMINAL ACTION NO. 07-550-06,CRIMINAL ACTION NO. 07-550-03,CRIMINAL ACTION NO. 07-550-05,CRIMINAL ACTION NO. 07-550-04
• Parties: UNITED STATES OF AMERICA v. KABONI SAVAGE ROBERT MERRITT STEVEN NORTHINGTON KIDADA SAVAGE
• Court: U.S. District Court — Eastern District of Pennsylvania

UNITED STATES OF AMERICA

v.KABONI SAVAGE ROBERT MERRITT STEVEN NORTHINGTON KIDADA SAVAGE

CRIMINAL ACTION NO. 07-550-03

CRIMINAL ACTION NO. 07-550-04

CRIMINAL ACTION NO. 07-550-05

CRIMINAL ACTION NO. 07-550-06

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Dated: December 18, 2012

SURRICK, J.

MEMORANDUM

Presently before the Court are Defendant Steven Northington's Motion to Sever (ECF No. 363), Defendant Kaboni Savage's Motion to Sever Counts (ECF No. 383), and Defendant Kidada Savage's Motion to Sever (ECF No. 433). For the following reasons, the Motions will be denied.

I. BACKGROUND¹

On May 9, 2012, a federal grand jury returned a seventeen-count Fourth Superseding Indictment ("Indictment") charging Defendant Kaboni Savage ("Savage") with conspiracy to participate in the affairs of a racketeering ("RICO") enterprise, in violation of 18 U.S.C. §1962(d) (Count 1), twelve counts of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Counts 2-7, 10-15), tampering with a witness, in violation of 18 U.S.C. § 1512(a) (Count 8), conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) (Count 9), retaliating against a witness, in violation of 18 U.S.C. § 1513(a) (Count 16), and using fire to commit a felony, in violation of 18 U.S.C. § 844(h)(1) (Count 17). (Fourth Superseding Indictment ("Indictment"), ECF No. 480.)² Savage was charged, along with three co-Defendants, Steven Northington, Robert Merritt, and Kidada Savage, his sister.³ Defendant Lamont Lewis was also charged in the First Superseding Indictment. The charges against Lewis were disposed of by guilty plea. On March 14, 2011, the Government filed notices of intent to seek the death penalty against Savage, Merritt and Northington. (ECF Nos. 196, 197, 198.) The Government does not seek the death penalty against Kidada Savage.

The Indictment alleges that Defendants were members of the Kaboni Savage Organization ("KSO"), an enterprise that operated from late 1997 to April 2010 in this District and elsewhere. (Indictment 1-4.) The KSO packaged, prepared, and distributed controlled substances throughout the greater Philadelphia area; distributed drugs and collected drug proceeds in North Philadelphia; and operated multiple drug distribution centers in North Philadelphia, often referred to as "drug corners." (Id. at 5.) The KSO engaged in a conspiracy to "knowingly and unlawfully conduct and participate . . . in the conduct of the affairs of suchenterprise through a pattern of racketeering activity." (Id. at 2.) The KSO's activities included, without limitation, acts of murder; dealing and conspiring to distribute and possess with intent to distribute controlled substances; arson; witness tampering; witness retaliation; and money laundering. (Id. at 2-4.)

On February 17, 2012, Northington filed a Motion to Sever Trial. (Northington Mot., ECF No. 363.)⁴ On February 21, 2012, Savage filed a Motion to Sever Counts. (Savage Mot., ECF No. 383.) On March 21, 2012, Kidada filed a Motion to Sever. (Kidada Mot., ECF No. 433.) On April 5, 2012, the Government filed an Omnibus Response ("Response") opposing these Motions. (Gov't's Resp., ECF No. 450.) On June 11 and 12, 2012, we held a hearing on Defendants' pre-trial motions. Oral argument was heard on Kidada's Motion.

II. LEGAL STANDARD

A. Rule 8

"Federal Rule of Criminal Procedure 8 governs joinder of offenses and joinder of defendants." United States v. Irizarry, 341 F.3d 273, 287 (3d Cir. 2003). It states:

(a) Joinder of Offenses. The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged—whether felonies or misdemeanors or both—are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.

(b) Joinder of Defendants. The indictment or information may charge 2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. Thedefendants may be charged in one or more counts together or separately. All defendants need not be charged in each count.

Fed. R. Crim. P. 8.

The Third Circuit has held that Rule 8(a) "'applies only to prosecutions involving a single defendant' and that in a multi-defendant case . . . 'the tests for joinder of counts and defendants is merged in Rule 8(b).'" Irizarry, 341 F.3d at 287 (quoting United States v. Somers, 496 F.2d 723, 729 n.8 (3d Cir. 1974)).⁵ Rule 8(b) is "less permissive" than Rule (8)(a). Eufrasio, 935 F.2d at 570; see also United States v. Jimenez, 513 F.3d 62, 82 (3d Cir. 2008) (noting that "joinder of defendants under Rule 8(b) is a stricter standard than joinder of counts against a single defendant under Rule 8(a)"). We analyze Defendants' joinder challenges under the less permissive Rule 8(b).⁶

In construing Rule 8(b), the Third Circuit has followed the Supreme Court in recognizing the "fundamental principle that the federal system prefers 'joint trials of defendants who are indicted together [ ]' because joint trials 'promote efficiency and serve the interests of justice byavoiding the scandal and inequity of inconsistent verdicts.'" United States v. Urban, 404 F.3d 754, 775 (3d Cir. 2005) (quoting Zafiro v. United States, 506 U.S. 534, 537 (1993) (alteration in original)). This is particularly true in cases in which defendants have been charged with engaging in a conspiracy. See Eufrasio, 935 F.2d at 567 ("Rule 8(b) provides substantial leeway to prosecutors who would join racketeering defendants in a single trial."). The Third Circuit has stated that Rule 8(b)

permits joinder of defendants charged with participating in the same racketeering enterprise or conspiracy, even when different defendants are charged with different acts, so long as indictments indicate all the acts charged against each joined defendant (even separately charged substantive counts) are charged as racketeering predicates or as acts undertaken in furtherance of, or in association with, a commonly charged RICO enterprise or conspiracy.

Id. (citing United States v. Dickens, 695 F.2d 765, 778-79 (3d Cir. 1982)). "[J]oinder . . . of a conspiracy count and substantive counts arising out of the conspiracy [is permitted], since the claim of conspiracy provides a common link, and demonstrates the existence of a common scheme or plan." Id. (quoting Somers, 496 F.2d at 729-30 (internal quotation marks and internal citation omitted) (original emphasis in Somers)). A RICO conspiracy charge provides that link. Id.

B. Rule 14

Even if joinder is proper under Rule 8(b), a district court may order Rule 14 severance if the potential prejudice outweighs the expense and time of separate trials that essentially retry the same issue. See Zafiro, 506 U.S. at 539; see also United States v. Joshua, 976 F.2d 844, 847 (3d Cir. 1992) ("Severance decisions under Rule 14 require the district court to weigh the potential for prejudice to the defendant from joinder against the conservation of judicial resources that joinder will occasion."). Federal Rule of Criminal Procedure 14 states, in relevant part:

(a) Relief. If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial 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.

Fed. R. Crim. P. 14(a).

Defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials or because the evidence is different as to each defendant. "Severance should only be granted '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.'" United States v. Riley, 621 F.3d 312, 335 (3d Cir. 2010) (quoting Urban, 404 F.3d at 775 (quoting Zafiro, 506 U.S. at 539)). To prevail on a Rule 14 motion, a defendant has a "heavy burden," United States v. Quintero, 38 F.3d 1317, 1343 (3d Cir. 1994), and must "'pinpoint clear and substantial prejudice resulting in an unfair trial,'" Riley, 621 F.3d at 335 (quoting United States v. McGlory, 968 F.2d 309, 340 (3d Cir. 1992) (internal quotation marks and citation omitted)).

In the context of multiple defendants, the Third Circuit has noted that prejudice sufficient to warrant severance might occur in the following situations: "(1) a 'complex case' involving 'many defendants' with 'markedly different degrees of culpability,' (2) a case . . . where evidence that is probative of one defendant's guilt is technically admissible only against a co-defendant, and (3) a case where evidence that exculpates one defendant is unavailable in a joint trial." United States v. Balter, 91 F.3d 427, 432-33 (3d Cir. 1996) (citing Zafiro, 506 U.S. at 539). The question of prejudice hinges upon "whether the jury will be able to 'compartmentalize the evidence as it relates to separate defendants in view of its volume and limited admissibility.'" United States v. Davis, 397 F.3d 173, 182 (3d Cir. 2005) (quoting Somers, 496 F.2d at 730).Where additional charges against a single defendant are "relatively straightforward and discrete," we have "not doubt[ed] that the jury reasonably could [be] expected to compartmentalize the evidence . . . ." United States v. Lore, 430 F.3d 190, 205 (3d Cir. 2005). By contrast, "[w]hen many defendants are tried together in a complex case and they have markedly different degrees of culpability, the risk of prejudice is heightened." Zafiro, 506 U.S. at 539.

"The decision to sever a trial is left to the sound discretion of the District Court." United States v. Ginyard, 65 F. App'x 837, 838 (3d Cir. 2003) (citing Zafiro, 506 U.S. at 538-39 ("Moreover, Rule 14 does not require severance even if...