United States District Court, S.D. Mississippi, Western Division
ORDER DENYING MOTION TO SEVER
DAVID BRAMLETTE, District Judge.
This cause is before the Court on defendant Hector Miguel Diaz-Osuna ("Diaz")'s Motion to Sever Defendants (docket entry 26). Having carefully considered the motion, the Government's response, and Diaz's reply, as well as the applicable law, the Court finds as follows:
On December 10, 2013, the Grand Jury returned a one-count indictment against Diaz, charging him with rioting and conspiracy to riot at the Adams County Correctional Center. Diaz was arraigned on January 14, 2014, and trial was set for April 7, 2014.
On March 4, 2014, the grand jury returned a superseding indictment against Diaz and Ricardo Gonzalez-Porras ("Gonzalez"), charging Diaz and Gonzalez with rioting and conspiracy to riot. Diaz was arraigned on the superseding indictment and entered a not guilty plea on March 11, 2014.
On March 14, 2014, Diaz filed the present motion, seeking to have his trial severed from that of his co-defendant, Gonzalez. Gonzalez was arraigned on March 31, 2014, and trial was set for June 2, 2014.
The Superceding Indictment alleges that Diaz and Gonzalez participated in the same transaction and series of transactions constituting the same offense, consistent with the Rule of Joinder (Fed.R.Crim.P. 8(b)). The Government anticipates that at trial witnesses will testify that Diaz and Gonzalez acted in concert with each other at the same location to cause a mutiny and riot and to conspire to cause a mutiny and riot. Gov. Response, p. 2.
"The denial of a motion to sever is reviewed under an exceedingly differential abuse of discretion standard." United States v. Whitfield , 590 F.3d 325, 355 (5th Cir. 2009) (quoting United States v. Tarango , 396 F.3d 666, 673 (5th Cir. 2005)(internal quotation marks omitted)). The Fifth Circuit has stated, "[W]e will not reverse a conviction based upon a denial of a motion to sever unless the defendant can demonstrate compelling prejudice against which the trial court was unable to afford protection, and that he was unable to obtain a fair trial.'" Whitfield , 590 F.3d at 355 (quoting United States v. Massey , 829 F.2d 995, 1004 (5th Cir. 1987).
Federal Rule of Criminal Procedure 8 specifically provides for the joinder of defendants where they participated in the same series of acts or transactions constituting an offense or group of offenses:
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.
Fed.R.Civ.P. 8(b). The Fifth Circuit has held that Rule 8(b) "is to be broadly construed in favor of initial joinder." United States v. Piaget , 915 F.2d 138, 142 (5th Cir. 1990). The Superceding Indictment alleges that Diaz and Gonzalez, "aided and abetted by each other, and by others known and unknown to the Grand Jury, willfully instigated, connived, attempted to cause, assisted and conspired to cause a mutiny and riot...." Docket Entry 19. The Government "anticipates that evidence will be presented at trial showing that Diaz and Gonzalez actively participated in the riot at the same time and same location and acted in concert with each other." Gov. Response, p. 3. "When the facts underlying each offense are so closely related that proof of such facts is necessary to establish each offense, joinder of defendants and offenses is proper." United States v. Gentile , 495 F.2d 626, 630 (5th Cir. 1974); United States v. Coppola , 788 F.2d 303, 306 (5th Cir. 1986). Thus, each defendant was properly joined under Rule 8(b).
Notwithstanding Rule 8(b), Diaz asserts that he is entitled to a severance under Fed.R.Crim.P. 14. Rule 14(a) states:
(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, or provide any other relief that justice requires.
The Government contends that Diaz cannot demonstrate the kind of prejudice that would necessitate severance. Diaz argues that unless his case is severed from that of Gonzalez, his "statutory and constitutional rights to a speedy trial will [ ] be infringed upon." Motion, pp. 2-3. It is the rule, however, rather than the exception, that persons indicted together should be tried together, especially in conspiracy cases. United States v. Pofahl , 990 F.2d 1456, 1483 (5th Cir. 1993). The Supreme Court has observed that
[j]oint trials generally serve the interests of justice by avoiding inconsistent verdicts and enabling more accurate assessment of relative culpability - advantages which sometimes operate to the defendant's benefit. Even apart from these tactical considerations, joint trials generally serve the ...