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United States v. Gemar

United States District Court, E.D. Louisiana

October 7, 2019

UNITED STATES OF AMERICA
v.
RODNEY GEMAR

         SECTION “H”

          ORDER AND REASONS

          JANE TRICHE MILAZZO UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Rodney Gemar's Motion for Severance (Doc. 376). For the following reasons, the Motion is DENIED.

         BACKGROUND

         Defendants Chad Scott, a former DEA special agent, and Rodney Gemar, a former DEA Task Force Officer and member of the Hammond Police Department, were charged by Superseding Indictment in May 2018 with multiple counts. This Court severed the trial of Counts 1 through 7 against Scott from Counts 8 through 14 against Scott and Gemar. On August 27, 2019, a jury found Scott guilty of Counts 1 through 7. A trial on Counts 8 through 14 is set to begin on November 18, 2019.

         Counts 8 through 14 against Scott and Gemar allege the following. Count 8 charges Scott and Gemar with a conspiracy spanning from February 2009 to January 2016 to convert property of another and remove property to prevent seizure. It alleges that Defendants conspired to enrich themselves by converting or disposing of money and property that came into their possession by virtue of their positions as DEA officers. Counts 9 and 10 charge Scott and Gemar with substantive counts of conversion and removal of property occurring on January 26, 2016. In Count 11, Scott is charged with seeking and receiving an illegal gratuity in exchange for recommending to federal prosecutors that the government seek to reduce the sentence of a defendant, J.W. In Count 12, Gemar is charged with conspiracy to convert property of another and remove property to prevent seizure from June 6, 2014 to June 19, 2014, relating to the seizure of a large sum of money from J.G. In Counts 13 and 14, Gemar is charge with substantive counts of conversion and removal of property relating to the amount seized from J.G.

         Gemar now moves for a severance of the trial of Counts 8 through 14 against him from the trial of those charges against Scott. The Government opposes.

         LAW AND ANALYSIS

         Defendant seeks a severance pursuant to Federal Rule of Criminal Procedure 14. Rule 14 gives the district court discretion to grant a severance “[i]f the joinder of offenses or defendants . . . appears to prejudice a defendant or the government.” Gemar argues that he will be prejudiced by a trial with Scott because Scott's prior convictions in Counts 1 through 7 will “deprive him of his right to present a colorful, vibrant storyline in his defense.”[1] Specifically, he argues that (1) he and Scott have mutually antagonistic defenses, and (2) the “spillover effect” of Scott's convictions are so prejudicial as to warrant severance.

         A. Mutually Antagonistic Defenses

         Gemar first argues that he is entitled to a severance because his defense is in conflict with Scott's defense. A mutually antagonistic defense is found where defenses are “in conflict, such that the jury, in order to believe the core of one defense, must necessarily disbelieve the core of the other.”[2] Severance is only warranted 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.”[3] “To compel severance the defenses must be antagonistic to the point of being irreconcilable and mutually exclusive.”[4]

         Gemar argues that he will present a defense at trial based on Scott's criminal convictions. Specifically, he will seek to prove that he was only prosecuted by the Government to force his cooperation against Scott. He argues that Scott will seek to exclude evidence of his convictions on Counts 1 through 7 and that these conflicting goals prejudice his right to present a defense.

         The Court first points out that it is unclear how Scott's prior convictions will be admissible at trial. Regardless, a disagreement between co-defendants regarding the introduction of a certain piece of evidence at trial does not amount to a mutually antagonistic defense. Defenses reach a level of antagonism that compels severance “if the jury, in order to believe the core of testimony offered on behalf of that defendant, must necessarily disbelieve the testimony offered on behalf of his co-defendant.”[5] These irreconcilable arguments are not merely “minor or peripheral matters, ” but rather, are core to the Defendants' defenses.[6] The introduction of Scott's prior convictions at trial is unquestionably a peripheral matter and does not prevent Gemar from presenting a defense. Indeed, Scott's prior convictions are not probative of Gemar's guilt or innocence. A severance is not warranted under this theory.

         B. ...


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