United States District Court, D. South Dakota, Western Division
ORDER DENYING MOTION TO SEVER
KAREN E. SCHREIER, District Judge.
Defendant, Neil Thomas LeBeau, moves the court to sever his trial from that of his co-defendant, Gerald Wayne LeBeau. The United States resists the motion. For the following reasons, the court denies the motion to sever.
Defendants were indicted on May 20, 2014, on one count of conspiracy to distribute or possess with the intent to distribute a controlled substance (cocaine) and one count of conspiracy to distribute or possess with the intent to distribute a controlled substance (marijuana). Gerald was charged with a separate count alleging possession with intent to distribute a controlled substance (cocaine). On August 26, 2014, the government filed a superseding indictment, which added a fourth count charging Gerald with witness tampering.
On November 3, 2014, Neil filed the present motion to server his and Gerald's joint trial. Docket 83. Neil contends that the government has in its possession, and intends to introduce at trial, recorded phone conversations made by Gerald from the Pennington County Jail that could be used to inculpate Neil. Because Gerald would not be subject to cross-examination at their joint trial, Neil asserts that the government's use of those phone calls would deny him his Sixth Amendment Confrontation Clause rights.
An indictment may charge two 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." Fed. R. Crim. P. 8(b). "The Rule is to be liberally construed in favor of joinder." United States v. Jones, 880 F.2d 55, 62 (8th Cir. 1989) (citations omitted). "When a defendant moves for severance, a district court must first determine whether joinder is proper under [Rule] 8. Even if joinder is proper under that rule, the court still has discretion to sever under Rule 14." United States v. Ruiz, 412 F.3d 871, 886 (8th Cir. 2005). If joinder is proper, however, a defendant seeking severance under Rule 14 must show prejudice would result from proceeding with a joint trial. Fed. R. Crim. P. 14(a); see also United States v. Sanchez-Garcia, 685 F.3d 745, 754 (8th Cir. 2012). "The prejudice must be real, ' that is, something more than the mere fact that he would have had a better chance for acquittal had he been tried separately.'" United States v. Elder, 682 F.3d 1065, 1074 (8th Cir. 2012) (quoting United States v. Mickelson, 378 F.3d 810, 817-18 (8th Cir.2004)).
The Supreme Court has explained that severance should be granted "only 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." Zafiro v. United States, 506 U.S. 534, 539 (1993). The Eighth Circuit has further elaborated that, in order to demonstrate prejudice under Rule 14, a defendant must show "that (a) his defense is irreconcilable with that of his co-defendant or (b) the jury will be unable to compartmentalize the evidence as it relates to the separate defendants.'" Sanchez-Garcia, 685 F.3d at 754 (quoting United States v. Davis, 534 F.3d 903, 916-17 (8th Cir. 2008)). "Generally, the risk that a joint trial will prejudice one or more of the defendants is best cured by careful and thorough jury instructions.'" Davis, 534 F.3d at 917 (quoting Mickelson, 378 F.3d at 818).
Neil does not challenge the propriety of the initial joinder under Rule 8. Because Neil has moved for severance, however, this court must "first determine whether joinder is proper under Rule 8." Ruiz, 412 F.3d at 886. The superseding indictment alleges that both defendants were engaged in two separate, but contemporary conspiracies involving the distribution of or possession with the intent to distribute cocaine and marijuana. Docket 56. The superseding indictment also alleges that Gerald possessed with the intent to distribute cocaine. Id. Gerald's purported possession of cocaine with the intent to distribute is "part of one overall scheme about which all joined defendants knew and in which they all participated" with respect to the alleged cocaine distribution conspiracy. United States v. Bledsoe, 674 F.2d 647, 656 (8th Cir. 1982); see also United States v. Davis, 882 F.2d 1334, 1341 (8th Cir. 1989) (describing possession with intent to distribute cocaine as "a substantive offense that is an objective of the conspiracy" to distribute cocaine).
The fourth count charges Gerald with witness tampering. Docket 56. Gerald is alleged to have "knowingly attempted to corruptly persuade, and engage in misleading conduct... with the intent to influence, delay, and prevent the testimony" of a potential witness in this case. Id. While only Gerald is alleged to have engaged in this conduct, "not every defendant joined must have participated in every offense charged." United States v. Delpit, 94 F.3d 1134, 1143 (8th Cir. 1996). Additionally, the act of witness tampering was allegedly undertaken to hinder or conceal the prosecution in the present case, an "act [which] would not have been necessary but for the underlying offenses with which [the] defendants were charged." United States v. Grey Bear, 863 F.2d 572, 583 (8th Cir. 1988) (en banc). Thus, the conspiracy counts linking the two defendants and "the close logical relationship between [those] charges and the individual count of witness tampering" demonstrates "that all of the offenses were part of the same series of acts' under Rule 8(b)." Id. (internal citations omitted). Therefore, joinder of Neil and Gerald in the superseding indictment is proper for purposes of Rule 8.
Neil argues that severance is appropriate under Rule 14, however, because the government has and intends to introduce recorded telephone conversations made by Gerald to other individuals while he was imprisoned at the Pennington County Jail. Docket 83 at 1. Neil identified a number of recorded conversations in which Gerald appears to admit to his own involvement in the use and distribution of cocaine. Id. at 2-4. Additionally, several of the conversations reveal Gerald's desire to act as a possible government informant against Neil, as well as suggest that Neil is engaged in the sale of narcotics. See id. at 4. Neil contends that severance is required because ...