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United States v. Ernesto Moreno Bruce McDaniel

United States District Court, E.D. Louisiana

May 23, 2017

UNITED STATES OF AMERICA
v.
ERNESTO MORENO BRUCE MCDANIEL

         SECTION “N” (4)

          ORDER AND REASONS

          KURT D. ENGELHARDT UNITED STATES DISTRICT JUDGE

         Presently before the Court is “Ernesto Moreno's Motion to Sever with Request for Expedited Consideration and Statement of Opposition to Continuance” (Rec. Doc. 248) filed by Defendant Ernesto Moreno, which the Government opposes. See Rec. Doc. 274. Having carefully considered the parties' supporting and opposing submissions, the record, and applicable law, IT IS ORDERED that the motion is DENIED for the reasons stated herein.

         I. BACKGROUND

         In the instant matter, a grand jury returned a nine-count Second Superseding Indictment for violations of the Federal Controlled Substances Act on October 8, 2015, naming Defendants Darrin Wright, Paul McNeary, Bruce McDaniel, Celeste Crow, Oscar Guevara-Martin, and Ernesto Moreno.[1] See Rec. Doc. 100. Defendant Ernesto Moreno (“Moreno”) was only charged in Count One, which charged all Defendants with knowingly and intentionally combining, conspiring, confederating, and agreeing with other persons known and unknown to the Grand Jury to distribute and possess with the intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, a Schedule II drug controlled substance, in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A); all in violation of 21 U.S.C. § 846. Id.

         On March 2, 2017, Codefendant Bruce McDaniel (“McDaniel”) filed a “Motion for Continuance of Trial” (Rec. Doc. 247) that was scheduled to begin on March 20, 2017, which was not opposed by the Government but opposed by Moreno. In response, Moreno filed the motion presently before the Court that: (1) requested severance of Moreno from any and all remaining codefendants; (2) requested expedited consideration of his motion; and (3) opposed McDaniel's motion to continue by asserting his right to a speedy trial under the Speedy Trial Clause of the Sixth Amendment and under the Speedy Trial Act. See Rec. Doc. 248-1.

         Thereafter, this Court granted McDaniel's “Motion for Continuance of Trial” on March 6, 2017, finding that the failure to grant the requested continuance would result in a miscarriage of justice based on the reasons given in the motion, the need for additional time for effective preparation by counsel, and the late date in which a motion to sever was filed. (Rec. Doc. 249). In response, Moreno filed a motion for reconsideration. (Rec. Doc. 256). In that motion, Moreno argued that (1) the motion to continue was mistakenly referred to as the Government's motion in this Court's order granting the continuance; (2) although McDaniel's counsel may need additional time for effective preparation, that finding was irrelevant to the Speedy Trial rights asserted by Mr. Moreno, who wishes to exercise his Constitutional right to a Speedy Trial; (3) the late date in which the motion was filed was attributable to the Government rather than Moreno; and (4) the Court's need to review and decide on the motion to sever does not substantially outweigh Mr. Moreno's Constitutional right to a Speedy Trial. Id.

         This Court denied the motion for reconsideration on March 17, 2017, finding that it was necessary for Court to carefully consider the motion to sever before proceeding to trial and for the Government to have the opportunity to respond to such motion. (Rec. Doc. 275). Thereafter, the Government filed an opposition to Moreno's motion to sever, which was set for submission on March 29, 2017. See Rec. Doc. 274.

         II. LAW AND ANALYSIS

         In his motion to sever presently before the Court, Moreno sets forth several arguments, albeit only citing authority from the Ninth Circuit. See Rec. Doc. 248-1. Moreno argues that his trial should be severed from that of Codefendant McDaniel because they were not properly joined as codefendants under Rule 8 of the Federal Rules of Criminal Procedure. Id. at p. 2-3.

         Moreno further posits that his trial should be severed from that of McDaniel because joinder is prejudicial for four reasons. Id. at p. 4. First, Moreno maintains that without severance, he and McDaniel will offer irreconcilable, mutually exclusive defenses. Id. Second, Moreno contends that joinder is prejudicial because he will be denied access to the exculpatory testimony of McDaniel since he will not have the right to call his codefendant to testify. Id. Third, Moreno argues that his rights to confront and cross examine witnesses under the Sixth Amendment are nullified without a severance. Id. Fourth, Moreno argues that without a severance, the jury may find him guilty by association, impinging on his due process rights. Id.

         a. Joinder of Defendants Under Federal Rule of Criminal Procedure 8(b)

         Moreno first argues that he and McDaniel have been improperly joined under Rule 8 of the Federal Rules of Criminal Procedure. Specifically, Rule 8(b) provides that,

[t]he 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. The defendants may be charged in one or more counts ...

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