United States District Court, E.D. Louisiana
ORDER & REASONS
M. AFRICK UNITED STATES DISTRICT JUDGE
the Court is defendant Jeremy Esteves's
(“Esteves”) motion to sever his trial from the trial
of his capital codefendants Lilbear George
(“George”), Curtis Johnson, Jr.
(“Johnson”), and Chukwudi Ofomata
(“Ofomata”). Esteves argues that a joint trial
with his capital codefendants will cause him prejudice,
warranting a severance. In the alternative, Esteves argues
that the Court should employ two juries at the joint trial:
one death-qualified jury and a separate jury for the
non-capital defendants. For the following reasons, the motion
case arises out of an armored truck robbery and the murder of
Hector Trochez, which occurred on December 18, 2013. On
November 9, 2017, a grand jury returned a four-count
superseding indictment against defendants George, Esteves,
Johnson, Ofomata, Robert Brumfield, III
(“Brumfield”), and Jasmine
and four of his codefendants were charged in three of the
four counts set forth in the superseding indictment, one of
which alleges a conspiracy.Specifically, the superseding
indictment charges Esteves, George, Ofomata, Johnson, and
Brumfield with conspiring to obstruct, delay, and affect
commerce by robbery (otherwise known as a Hobbs Act robbery);
aiding and abetting one another to commit a Hobbs Act
robbery; and aiding and abetting one another to knowingly
use, carry, brandish, and discharge firearms during and in
relation to crimes of violence and, in the course thereof,
causing the death of Hector Trochez through the use of
is the rule, not the exception, ‘that persons indicted
together should be tried together, especially in conspiracy
cases.'” United States v. Thomas, 627 F.3d
146, 156 (5th Cir. 2010) (quoting United States v.
Pofahl, 990 F.2d 1456, 1483 (5th Cir. 1993)).
Rule of Criminal Procedure 8(b) states,
The 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 together or separately. All
defendants need not be charged in each count.
is a preference in the federal system for joint trials of
defendants who are indicted together. Joint trials
‘play a vital role in the criminal justice
system.'” Zafiro v. United States, 506
U.S. 534, 537 (1993) (quoting Richardson v. Marsh,
481 U.S. 200, 209 (1987)).
if a joint trial would cause prejudice to a defendant, the
court may sever the defendants' trial. Fed. R. Crim. P.
14(a). “[W]hen defendants properly have been joined
under Rule 8(b), a district court should grant a severance
under Rule 14 only if there is a serious risk that a joint
trial would compromise a specific trial 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 moving defendant bears the burden of
proving that prejudice will result if the district court does
not grant a severance. See Thomas, 627 F.3d at
is well settled that defendants are not entitled to severance
merely because they may have a better chance of acquittal in
separate trials.” Zafiro, 506 U.S. at 540. The
Fifth Circuit has “held that the mere presence of a
spillover effect does not ordinarily warrant
severance.” Pofahl, 990 F.2d at 1483 (citing
United States v. Rocha, 916 F.2d 219, 228 (5th Cir.
1990)). However, “[w]hen many defendants are tried
together in a complex case and they have markedly different
degrees of culpability, this risk of prejudice is
heightened.” Zafiro, 506 U.S. at 539. Even so,
“less drastic measures, such as limiting instructions,
often will suffice to cure any risk of prejudice.”
United States v. McRae, 702 F.3d 806, 823 (5th Cir.
2012) (quoting Zafiro, 506 U.S.at 539).
argues that he will be prejudiced by a joint trial with his
capital codefendants and, therefore, his trial should be
severed because (1) a death-qualified jury is more
conviction-prone, (2) Esteves will be judged by the higher
culpability of his codefendants, (3) case management,
specifically the process of voir dire, supports severance,
and (4) Esteves is entitled to a speedy trial, which will be
delayed if the Court grants Ofomata's motion to continue
a death-qualified jury does not entitle Esteves to a
severance. The Sixth Amendment gives a defendant the right
“to have his guilt or innocence determined by an
impartial jury selected from a representative cross-section
of the community.” Lockhart v. McCree, 476
U.S. 162, 167 (1986). “‘To establish a prima
facie violation' of the fair cross-section requirement, a
defendant must show among other matters, ‘that the
group alleged to be excluded is a distinctive group in the
community.'” United States v. Simpson, 645
F.3d 300, 312 (5th Cir. 2011) (quoting United States v.
Williams, 264 F.3d 561, 568 (5th Cir. 2011)).
Prospective jurors come from many different backgrounds, and
have many different attitudes and predispositions. But the
Constitution presupposes that a jury selected from a fair
cross section of the community is impartial, regardless of
the mix of individual viewpoints actually represented on the
jury, so long as the jurors can conscientiously and properly
carry out their sworn duty to apply the law to the facts of
the particular case.
Lockhart, 476 U.S. at 183-84.
Witherspoon v. State of Illinois, 391 U.S. 510
(1968), the Supreme Court held that the government may
exclude from a jury those veniremen who made it clear they
would never vote to impose the death penalty, but the
government cannot exclude “veniremen for cause simply
because they voiced general objections to the death penalty
or expressed conscientious or religious scruples against its
infliction.” Witherspoon, 391 U.S. at 514.
“[T]hose who firmly believe that the death penalty is
unjust may nevertheless serve as jurors in capital cases so
long as they state clearly that they are willing to
temporarily set aside their own beliefs in deference to the
rule of law.” Lockhart, 476 U.S. at 176.
who cannot and will not conscientiously obey the law with
respect to one of the issues in a capital case”-do not
make up a distinctive group for fair cross-section purposes,
and, therefore, “‘death-qualification' does
not violate the fair cross-section requirement.”
Id. at 176-77.
principle likewise applies in a joint trial of capital and
Where, as here, one of the joined defendants is a capital
defendant and the capital-sentencing scheme requires the use
of the same jury for the guilt and penalty phases of the
capital defendant's trial, the interest in this scheme,
which the Court recognized as significant in [Lockhart v.
McCree], coupled with the [government's] interest in
a joint ...