The opinion of the court was delivered by: Karen E. Schreier Chief Judge
Defendants Viengxay Chantharath and Patricio Guzman-Ortiz separately oppose co-defendant Rosendo Garcia-Navarro's and the government's motions for continuances. Dockets 563, 566. In the alternative, Chantharath and Guzman-Ortiz move to sever their trial from the trials of their co-defendants to allow them to proceed to trial on October 25, 2011. The government opposes the motions to sever. Garcia-Navarro's motion to continue is granted. Chantharath's and Guzman-Ortiz's motions to sever are granted. The government's motion to continue is denied in part and granted in part.
The pertinent facts to this order are as follows: The original indictment in this case, dated January 5, 2010, charged Chantharath and Vang Somsawat with conspiracy to distribute methamphetamine. Docket 1. A second superseding indictment, dated April 7, 2010, added as defendants Guzman-Ortiz, Jeffrey Arthur Kriz, Mario Maldonado, and Aurelio Angel Solorio in the same conspiracy. Docket 54.
The third superseding indictment, dated May 4, 2010, added Jason Leach, Daniel Navarrette, and Kevin Boxdorfer as co-defendants in the conspiracy. Docket 111. The fourth superseding indictment, dated August 3, 2010, added Bruce Ross as a co-defendant in the conspiracy. Docket 194.
The fifth superseding indictment, dated March 2, 2011, added Garcia-Navarro and a person not yet arrested as co-defendants in the conspiracy. Docket 366. The sixth superseding indictment, dated June 7, 2011, added Ricardo Ayala Luis, a person not yet arrested, Felicia Ann Omara, Michelle Cherie Feiss, and Rodney James Newcomb as co-defendants in the same conspiracy. Docket 408. The seventh superseding indictment, dated September 7, 2011, did not charge any new defendants with conspiracy but did contain a forfeiture allegation against Garcia-Navarro. Docket 498.
Many of the co-defendants charged in this conspiracy have already pleaded guilty and some have already been sentenced. The remaining co-defendants are Chantharath, Guzman-Ortiz, Garcia-Navarro, Ayala Luis (who is scheduled for an initial appearance on October 25, 2011), and two persons not yet arrested. This case is currently scheduled for a jury trial to begin on Tuesday, October 25, 2011, with co-defendants Chantharath, Guzman-Ortiz, and Garcia-Navarro. Docket 543.
I. Garcia-Navarro's Motion
Garcia-Navarro moves for a continuance because his retained counsel was appointed on a state court death penalty case. On September 16, 2011, the state court scheduled the death penalty sentencing hearing for October 24, 2011. Docket 561. At that time, this case was scheduled for trial to begin on October 4, 2011. Docket 481. On September 19, 2011, this court continued the October 4, 2011, jury trial to October 25, 2011. Docket 543. Garcia-Navarro moves to continue his trial date to allow his counsel to adequately prepare for both the death penalty sentencing hearing and this trial.
Preparing for a death penalty sentencing hearing consumes significant resources for a defendant's counsel. And Garcia-Navarro has the right to have his counsel fully prepared to defend him at trial. Due to Garcia-Navarro's counsel's other legal obligations, the interests of justice are met in continuing Garcia-Navarro's trial and his motion to continue is granted. But, as stated below, because another continuance will violate Chantharath's and GuzmanOrtiz's Sixth Amendment rights, the court will sever Chantharath and Guzman-Ortiz's trial from that of Garcia-Navarro.
II. Government's Motion to Continue
The government moves to continue because one of the defendants, Ayala Luis, is scheduled to make his initial appearance in South Dakota on October 25, 2011, and the government believes that Ayala Luis should be tried in the same trial as the other co-defendants. The government further argues that one of its witnesses will be unavailable for the October 25 trial because the witness is also a witness during the death penalty sentencing hearing previously referenced. Chantharath and Guzman-Ortiz respond that their trial should be severed from that of the remaining co-defendants.
In determining whether a defendant is entitled to a separate trial from his co-defendants, the court must decide: (1) whether joinder was proper under Federal Rule of Criminal Procedure 8, and (2) whether severance is proper under Rule 14. See, e.g., United States v. Payton, 636 F.3d 1027, 1036-37 (8th Cir. 2011) (analyzing first whether joinder was proper under Rule 8 and then whether severance was proper under ...