United States District Court, S.D. Texas, Houston Division
ORDER DENYING MOTION TO SEVER
ROSENTHAL CHIEF UNITED STATES DISTRICT JUDGE.
government alleges that Letrishia Andrews and Justice Daniel
conspired to-and actually did-enter into a sham marriage in
order to secure immigration benefits for Daniel, a native of
Nigeria. Andrews is also charged with theft of government
money. (Docket Entry No. 102). Andrews, Daniel, and a third
alleged coconspirator were indicted together and are set for
trial together beginning April 18, 2017. On April 13, 2017,
Andrews and Daniel moved to sever their trials from one
another. (Docket Entry No. 157). The motion was accompanied
by affidavits stating that, if their trials were severed,
Andrews and Daniel would testify on one another's behalf
as to the origin and genuineness of their marriage. The
motion argues that Andrews will not testify for Daniel if
their trials are not severed, because she has prior
convictions that will not be admissible unless she takes the
stand. Andrews and Daniel claim that they will be unable to
put on an effective defense if they cannot testify in support
of one another about their marriage. They move in the
alternative for a bench trial. The government filed a brief
opposing the motion to sever. (Docket Entry No. 162). The
government does not oppose a bench trial of all three alleged
on the briefs, record, and applicable law, the motion to
sever is denied. Because the third codefendant has not
consented to a bench trial, the motion for a bench trial is
denied. The reasons are explained below.
The Legal Standard
of charges is the rule rather than the exception and Rule 8
is construed liberally in favor of initial joinder.”
United States v. Bullock, 71 F.3d 171, 174 (5th Cir.
1995) (citing United States v. Park, 531 F.2d 754,
761 (5th Cir. 1976)). Under Federal Rule of Criminal
Procedure 8(b), joinder of defendants is appropriate if the
defendants “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.”
“Defendants named in the same indictment should
generally be tried together, particularly when they are
allegedly members of a conspiracy.” United States
v. Booker, 334 F.3d 406, 415 (5th Cir. 2003) (citing
United States v. Manges, 110 F.3d 1162, 1174 (5th
Cir. 1997)). However, “[i]f the joinder of . . .
defendants in an indictment . . . appears to prejudice a
defendant . . ., 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). “A general description of complexity or
antagonistic defenses is not sufficient to show the
‘specific and compelling prejudice'”
necessary for severance. Booker, 334 F.3d at 415.
defendant seeking severance on the basis of exculpatory
testimony by a codefendant must show: “(1) a bona fide
need for the testimony; (2) the substance of the testimony;
(3) its exculpatory nature and effect; [and] (4) that the
co-defendant would in fact testify if severance were
granted.” United States v. Villarreal, 963
F.2d 725, 731 (5th Cir.1992). “After such a showing,
the court must consider: 1) the significance of the alleged
exculpatory testimony in relation to the defendant's
theory of defense, 2) the extent to which the defendant might
be prejudiced by the absence of the testimony, 3) judicial
administration and economy, and 4) the timeliness of the
motion.” United States v. Ramirez, 954 F.2d
1035, 1037 (5th Cir. 1992) (citing United States v.
Butler, 611 F.2d 1066, 1071 (5th Cir. 1980), cert.
denied, 449 U.S. 830 (1980)).
trials of alleged coconspirators is heavily favored.
Richardson v. Marsh, 481 U.S. 200, 210-11 (1987).
“The remedy of severance is justified only if the
prejudice flowing from a joint trial is clearly beyond the
curative powers of a cautionary instruction.”
United States v. Morrow, 537 F.2d 120, 136 (5th Cir.
1976). “A jury is presumed to follow its
instructions.” Weeks v. Angelone, 528 U.S.
225, 234 (2000).
and Daniel have not identified legally cognizable prejudice
sufficient to overcome the strong presumption in favor of
trying alleged coconspirators together. Andrews and Daniel
argue that, absent severance, they cannot testify on one
another's behalf and that the loss of this testimony
would cause “substantial and irreparable
prejudice” because they will be “unable to
present a critical defense witness to the jury.” But
Andrews would not suffer any legal prejudice if her prior
convictions were properly admitted under the rules of
evidence. The court would give a strong limiting instruction
making clear to the jury that it could only consider the
prior convictions for the limited purposes allowed under the
rules, curing any possible prejudice as a matter of law. The
court also notes that the government intends to put on
evidence of Andrews's prior convictions to show intent,
knowledge, or absence of mistake. (Docket Entry No. 141).
While the court has not yet ruled on the convictions'
admissibility for that purpose, the possibility that the
convictions would come in for that purpose-with the
appropriate limiting instructions-undercuts Andrews's
contention that she cannot testify on Daniel's behalf
absent severance for fear that the jury might learn of her
checkered past. There is a real possibility that the
convictions will be put into evidence regardless of whether
would Daniel be significantly prejudiced if the severance is
denied and Andrews refuses to testify. The defendants'
affidavits make it clear that they would testify to
substantially identical facts about the history of their
relationship. While Daniel would undoubtedly prefer that
Andrews testified in his favor, her decision not to do so
would not leave him without an effective defense. Daniel can
testify on his own behalf. He can also call other witnesses
to provide additional facts or corroborating details about
his relationship with Andrews. Because Andrews's
testimony would not be uniquely exculpatory, any prejudice to
Daniel is insufficient to overcome the strong presumption in
favor of trying him alongside his alleged coconspirator.
the defendants can each present an effective defense in a
joint trial, the judiciary's interest in efficient
adjudication of this conspiracy case strongly outweighs the
effects of trying Andrews and Daniels together. Severing the
case would result in significant waste of judicial resources
in supervising duplicative trials, cause significant
inconvenience to witnesses, and raise the possibility of
motion to sever, (Docket Entry No. 157), is denied. Because
the third alleged coconspirator has not consented to a bench
trial, the motion for a ...