United States District Court, E.D. Louisiana
ORDER & REASONS
ELDON E. FALLON, District Judge.
Before the Court is a Motion to Sever filed by Defendant Langundo Flowers (Rec. Doc. 418). The Court has reviewed the briefs and applicable law and now issues this Order & Reasons.
This case arises out of an alleged conspiracy to distribute drugs. Count 1 of the twenty-eight-count Second Superseding Indictment charges nine defendants with conspiring to distribute, and to possess with the intent to distribute, 280 grams or more of cocaine base, in violation of Title 21, United States Code, Sections 841(a)(1), 841(b)(1)(a) and 846. Defendant Langundo Flowers is among those nine Defendants. Flowers is also named in Counts 8, 11, 15, 18, 19, 20, 21, 22, 23, 24, 25, 26, and 27 of the Second Superseding Indictment. Counts 8, 11, 19, 20, 21, 22, and 23 charge Flowers with knowingly and intentionally using a communication facility, to wit, a telephone, in committing or facilitating the commission of a violation of Title 21, United States Code, Sections 841(a)(1) and 846. Counts 15, 18, and 24 charge Flowers with knowingly and intentionally distributing a quantity of cocaine base ("crack"), a Schedule II drug controlled substance, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(C). Count 25 charges Flowers with knowingly possessing a semi-automatic handgun in furtherance of a drug-trafficking crime, in violation of Title 18, United States Code, Section 924(c)(1)(A). Counts 26 and 27 charge that Flowers, having been previously convicted of a felony, did knowingly possess a firearm and ammunition affecting commerce, in violation of Title 18, United States Code, Sections 922(g)(1) and 924(a)(2). The other fifteen counts charge various Defendants with distributing drugs, possessing firearms, and causing death through the use of a firearm.
II. PRESENT MOTION
A. Motion to Sever (Rec. Doc. 418)
Defendant Langundo Flowers filed the present motion and asks this Court to sever counts of the indictment that are unrelated to his charges and/or to sever his trial from that of his co-defendants. Flowers contends that severance is warranted under Federal Rule of Criminal Procedure 8(b) because joinder is not proper, as the indictment does not allege an overarching conspiracy, but rather, multiple conspiracies with overlapping participants. (Rec. Doc. 418-1 at 4). Flowers "submits that the evidence at trial will fail to prove up the overarching conspiracy that the government has alleged in Count 1, and that severance will be justified on that basis." (Rec. Doc. 418-1 at 4).
Flowers also argues that severance is justified pursuant to Federal Rule of Criminal Procedure 14 because of the unfair prejudicial effect that joinder will have on his defense. (Rec. Doc. 418-1 at 4). As his co-defendant, Dennis Morgan, argued in his Motion to Sever (Rec. Doc. 299), Flowers avers that he "will suffer from prejudicial spill over' effect based on the murder charge brought against two of his co-defendants." (Rec. Doc. 418-1 at 3-4). Flowers notes that the Government does not allege that he played any role in the alleged murder, and Flowers maintains that the evidence will show that he "condemned the violence that was allegedly being perpetrated by the individuals who are now his co-defendants." (Rec. Doc. 418-1 at 5). The facts, Flowers argues, support a severance under Rule 14.
B. Government's Response (Rec. Doc. 424)
In opposition, the Government claims that in September 2012, the Drug Enforcement Administration and the Kenner Police Department began an investigation into the activities of a drug trafficking organization in the Lincoln Manner area of Kenner, Louisiana. (Rec. Doc. 424). During the course of the investigation, Government states that T-III intercept orders were obtained for telephones utilized by Flowers and another co-defendant. (Rec. Doc. 424 at 1). According to the Government, through the use of these intercepted communications, agents were able to identify members of the organization and determine their respective roles.
The Government argues that joinder under Federal Rule of Criminal Procedure 8 is proper. The Government claims that the propriety of joinder should be evaluated by looking at the initial allegations of the indictment. (Rec. Doc. 424 at 3). The Government argues that the instant case falls squarely into the category of cases in which a joint trial of co-conspirators is favored. (Rec. Doc. 309 at 3-4). According to the Government, it does not matter that Flowers was not charged in every count of the indictment because Flowers played an indispensable role in Count 1, the count around which the entire indictment centers. (Rec. Doc. 424 at 4). The Government emphasizes that Flowers failed to cite a single case in which a court found joinder to be improper when the indictment charged a defendant with drug conspiracy but not with the overlapping gun conspiracy that occurred during and in furtherance of the drug conspiracy. (Rec. Doc. 424 at 4). Rather, the Government argues, courts have held the opposite: joinder of related drug and gun counts is proper. (Rec. Doc. 424 at 4) (citing U.S. v. Chagra, 754 F.2d 1186, 1188 (5th Cir. 1985); U.S. v. Davis, Crim A. No. 01-282, 2003 WL 1904039 at *3 (E.D. La. Apr. 16, 2003) (Vance, J.)).
With respect to Rule 14, the Government claims that this Court should only sever a defendant if the Court determines that joinder results in prejudice that outweighs the benefit of judicial economy. (Rec. Doc. 424 at 5). The Government argues that severance is only appropriate when there is a serious risk that a joint trial will compromise a specific trial right of one of the defendants. (Rec. Doc. 424 at 6) (citing Zafiro v. United States, 506 U.S. 534, 539 (1993)). The Government claims that Flowers has the burden of proving that without a severance he will be unable to obtain a fair trial. (Rec. Doc. 424 at 6) (quoting United States v. Perez, 489 F.2d 51, 65 (5th Cir. 1973)). The Government further argues that this Court can tailor relief through an appropriate limiting instruction. (Rec. Doc. 424 at 6). The Government argues that "[n]otably, in cases involving one defendant charged with murder who is tried with other defendants not charged with murder, the Fifth Circuit has held that prejudice is not established when there is evidence of crimes committed by co-conspirators, including murder." (Rec. Doc. 424 at 7) (citing U.S. v. Posada-Rios, 158 F.3d 832, 863 (5th Cir. 1998)). Further, the Government argues, unlike cases where the Fifth Circuit has granted severance, "the gun and murder charges are related to and in furtherance of Count 1, the drug trafficking conspiracy of which Flowers was a central figure." (Rec. Doc. 424 at 8) The Government claims that Flowers fails to make any specific showing as to why a jury will be unable to properly process the evidence against him. (Rec. Doc. 424 at 9-10).
III. LAW & ANALYSIS
A. Federal Rule of Criminal ...