United States District Court, E.D. Louisiana
ORDER AND REASONS
S. VANCE, UNITED STATES DISTRICT JUDGE
Aloysius Korieocha moves the Court to sever his trial from
that of his codefendants. For the following reasons, the Court
denies the motion to sever.
December 2, 2016, the grand jury returned the Superseding
Indictment, which names eight defendants and includes
twenty-six charges.Count 1 charges defendants Jonathan
Lawrence, Donald Marcelin, Brandon Hall, Brian Maxson,
Aloysius Korieocha, Dwayne Labranch, Lance Stovall, and Vonzo
Magee with conspiracy to distribute and to possess with
intent to distribute heroin and fentanyl, in violation of
Title 21, United States Code, Section 841(a)(1) and
Count 2 charges Lawrence, Hall, Maxson, Labranch, and Magee
with conspiracy to possess firearms in furtherance of the
drug conspiracy charged in Count 1. Count 3 charges Korieocha
with knowingly and intentionally distributing heroin in
violation of Title 21, United States code, Sections
841(a)(1), and (b)(1)(C). Korieocha is charged only in Count 1
and Count 3.
4, 5, 6, 7, 10, 11, 12, 13, 14, 15, 16, 17, 21, 22, and 24
charge other defendants with distribution of either heroin or
fentanyl, or both. Counts 10 and 14 indicate that a death
resulted from the use of the substances.Counts 8 and 18
charge Lawrence and Hall, and Lawrence, Hall, and Labranch,
respectively, with knowingly using, carrying, and discharging
a firearm during and in relation to the conspiracy charged in
Count 1. Count 9 charges Lawrence, Hall and
Labranch with discharging a firearm within 1000 feet of a
school. Counts 19, 20, and 26 charge Lawrence,
Hall, and Magee, respectively, with possession of a firearm
by a convicted felon. Finally, Counts 23 and 25 charge Maxson
and Magee, respectively, with possession of a firearm in
furtherance of the drug conspiracy charged in Count
1. Every defendant charged in counts 2-26
is charged as a member of the drug conspiracy in Count 1.
Korieocha now moves to sever his trial from that of his
codefendants. The government opposes Korieocha's
motion. Korieocha argues that a severance is
warranted to avoid undue prejudice and because there is a
concern that the jury will hear the evidence against
Korieocha's codefendants and use it against
8(b) of the Federal Rules of Criminal Procedure allows for a
count of an indictment to “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). Even if joinder is proper under Rule
8(b), Rule 14 allows the Court to sever the defendants'
trials if a consolidated trial would result in prejudice.
Fed. R. Crim. P. 14. Rule 14 provides that a court may order
the severance “[i]f the joinder of offenses or
defendants in an indictment, an information, or a
consolidation for trial appears to prejudice a defendant or
the government [.]” Fed. R. Crim. P. 14(a); see
also Zafiro v. United States, 506 U.S. 534, 538 (1993).
But Rule 14 does not require severance even if prejudice is
shown. Rather, “it leaves the tailoring of the relief
to be granted, if any, to the district court's sound
discretion.” Zafiro, 506 U.S. at 538-39. In
exercising that discretion, the district court is to
“balance the right of a defendant to a fair trial
against the interests of judicial economy.” United
States v. Zicree, 605 F.2d 1381, 1388 (5th Cir. 1979).
the Government indicts defendants together, there is a
preference for joint trials of the defendants.
Zafiro, 506 U.S. at 537. Courts have generally held
that when defendants are indicted together, they should be
tried together. United States v. McCord, 33 F.3d
1434, 1452 (5th Cir. 1994). This is especially true when the
defendants are charged with the same conspiracy. See
id. The Supreme Court has directed a court to sever
charges “only if there is a risk that a joint trial
would compromise a specific right of one of the defendants,
or prevent the jury from making a reliable judgment about
guilt or innocence.” Zafiro, 506 U.S. at 539.
The defendant carries the “heavy burden” of
showing “specific and compelling prejudice.”
United States v. Mitchell, 31 F.3d 271, 276 (5th
concedes that the initial joinder under Rule 8 was proper,
but argues that severance is warranted
under Rule 14. Here, Korieocha argues that given that he is
charged in only two of the 26 counts, the jury will
mistakenly use evidence proffered against the other
defendants against Korieocha. Further, he argues that
prejudicial evidence that is irrelevant to him will be
introduced at trial. Despite his contentions, Korieocha does
not establish the specific and compelling prejudice necessary
to warrant the remedy of severance in a conspiracy trial.
mistakenly argues that severance is proper because he is
charged in only two of the 26 counts of the indictment. The
Fifth Circuit has repeatedly held that neither qualitative
nor quantitative differences in a defendant's involvement
in a conspiracy merits severance. United States v.
Rocha, 916 F.2d 219, 228 (5th Cir. 1990); see also
United States v. Owens, 683 F.3d 93, 98 (5th Cir. 2012)
(“[A] spillover effect, by itself, is an insufficient
predicate for a motion to sever.”) (citations omitted).
Accordingly, that Korieocha is not named in 24 of the 26
counts does not warrant severance.
Korieocha's description of certain evidence that may be
prejudicial as “entirely irrelevant” to him is an
overstatement. Five of the 26 charges relate to firearm
offenses against other members of the drug conspiracy of
which Korieocha was charged, and the offenses were allegedly
committed in furtherance of that drug conspiracy. Further,
the Superseding Indictment charges that the drug conspiracy
began at a time unknown and “continu[ed] through the
present.” The Government contends that Korieocha
was still involved with the conspiracy when the firearms
offenses and many of the individual drug distribution events
occurred, and further contends that Korieocha had
communications with the other members of the conspiracy
during this period. Because these five charges relate to a
conspiracy of which Korieocha was allegedly a member,
Korieocha's reliance on United States v.
Cortina, 142 F.3d 242 (5th Cir. 1998) is misplaced.
There, severance was warranted for two codefendants because
they were not members of, or even associated with, the gang
that killed a 14-year-old boy, and the codefendants'
charged involvement with the conspiracy had ended before the
gang members joined the conspiracy. Id. at 248.
Importantly, the Fifth Circuit also held that severance was
not proper for two other defendants, who were members of a
group affiliated with the gang and their involvement with the
conspiracy coincided with the gang's involvement.
Id. at 249. Here, Korieocha's alleged
involvement in the conspiracy overlapped with the other
charges, and the other defendants “were not, as in
Cortinas, unknown to him or operating wholly
independently.” United States v. Fernandez,
559 F.3d 303, 317 (5th Cir. 2009).
even assuming Korieocha could show that he faced undue
prejudice, he has not addressed why this prejudice would not
be avoided by proper limiting instructions to the jury. As
the Fifth Circuit has explained, “when one conspiracy
exists, severance is not required, even where the quantum and
nature of the proof in each case is different, so long as the
trial court repeatedly gives cautionary instructions.”
Rocha, 916 F.2d at 228; see also Owens, 683
F.3d at 100 (“Compelling prejudice is not shown if it
appears that, through use of cautionary instructions, the
jury could reasonably separate the evidence and render
impartial verdicts as to each defendant.”) (citations
omitted). Here, the Court can mitigate any potential
prejudice to Korieocha by instructing the jury to limit its
consideration of the evidence to the appropriate defendant.
Zafiro, 506 U.S. at ...