United States District Court, E.D. Louisiana
ORDER & REASONS
D. ENGELHARDT UNITED STATES DISTRICT JUDGE
the Court is the “Motion to Sever the Trial of Bryan
Scott from That of His Co-Defendants” (Rec. Doc. 594),
submitted by defendant Scott on May 24, 2017, less than two
weeks before the trial of this matter is set to begin. The
Motion is opposed by the government. (See Rec. Doc.
618). Now, having considered the parties' submissions,
the record, and applicable law, the Court denies Scott's
request as an untimely pre-trial motion under the Court's
Scheduling Order (Rec. Doc. 557 at p. 2), as well as for the
reasons that follow.
respect to a prior motion to sever filed by defendants Delwin
McLaren and Jeffrey Wilson, this Court previously held, on
October 15, 2015, that the initial joinder of defendants in
this case was proper under Rule 8(b) of the Federal Rules of
Criminal Procedure. (Rec. Doc. 366 at p. 4-6). The
intervening months have not changed that analysis or
conclusion with regard to any of the defendants, including
Bryan Scott. Therefore, the issue before the Court is, once
again, whether joinder poses a risk of prejudice so
significant that a severance of trials is warranted under
Rule 14(a) of the Federal Rules of Criminal
Procedure. The Court finds that it does not, for
substantially the same reasons as it explained when
entertaining McLaren and Wilson's motion for identical
relief. (See Rec. Doc. 366 at p. 7-9).
in conspiracy cases, the preference in this Circuit, and
others, remains that defendants who are indicted together be
tried together. See United States v. McRae, 702 F.3d
806, 821 (5th Cir. 2012). A severance of trials is warranted
“only if there is a serious risk that a joint trial
would compromise a specific trial right of a properly joined
defendant or prevent the jury from making a reliable judgment
about guilt or innocence.” Zafiro v. United
States, 506 U.S. 534, 539 (1993) (citations omitted).
Stated differently, to obtain a severance, the defendant must
“convinc[e] the Court that without such drastic relief
they will be unable to obtain a fair trial.” United
States v. Perez, 489 F.2d 51, 65 (5th Cir. 1973).
Otherwise, the risk of prejudice resulting from joinder can
often be cured through other means, such as the Court's
use of limiting instructions, for example. See
Zafiro, 506 U.S. at 539. As long as it is possible for
the jury to “separate the evidence that is relevant to
each defendant, even if the task is difficult, and render a
fair and impartial verdict as to each defendant, severance
should not be granted.” United States v.
Ramirez, 145 F.3d 345, 354-55 (5th Cir. 1998) (citing
United States v. Walters, 87 F.3d 663, 670-71 (5th
Scott argues that a severance is warranted due to the
anticipated, prejudicial effect of “the jury hearing
the details of the allegedly very serious activity [of
co-defendants], including murders, of which Scott had no
part, ” and which, according to Scott, would be
inadmissible evidence, presumably if not for the joinder.
(See Rec. Doc. 594-1 at p. 4). The Court previously
rejected this very argument when asserted by co-defendant
McLaren (See Rec. Doc. 366 at p. 9). Raised by
Scott, the argument is even weaker, because he is charged in
eight of twenty-seven overt acts listed in the Second
Superseding Indictment, whereas McLaren is named in only two.
(See Rec. Doc. 308 at p. 9-10). For the same reasons
the argument did not hold water for his co-defendant, it
certainly does not now for Scott.
to Scott's motion is the argument that new evidence, made
available during the course of discovery, is so prejudicial
that a severance is required. The evidence comes in the form
a recording in which a co-defendant, Darius Williams, claims
that it was not him, but rather Scott, who shot at a police
officer on February 7, 2017. Made part of the Count 1 RICO
conspiracy charge, that event is the subject of Overt Act No.
13, which identifies only Williams as the shooter, with no
mention of Scott. The recorded allegation is disputed by
Scott, and Williams has since pled guilty, in part, to the
Count 1 RICO charge. Although Scott argues that the recording
stands to compromise his rights under the Fifth Amendment of
the Unites States Constitution, the Court does not understand
- and Scott does not explain - why he believes that to be
true. Furthermore, whatever the prejudicial affect this
recording may have on Scott, a severance would accomplish
little when the recording could just as easily be implicated
in a separate trial.
ORDERED that the Motion (Rec. Doc. 594) is DENIED.
 Rule 14. Relief from Prejudicial
(a) Relief. If the joinder of offenses or defendants
in an indictment, an information, or a consolidation for
trial appears to prejudice a defendant or the government, the
court may order separate trials of counts, sever the
defendants' trials, ...