United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE
Isaiah Lewis has filed a Motion for Severance and Separate
Trial (Doc. 80) and, later, a Supplemental Motion to the same
effect (Doc. 151). The government has filed a Response, both
to the original motion (Doc. 140) and the supplemental one
(Doc. 157). In between the two rounds of filings, the court
conducted a hearing on the motion where the government
presented evidence. See Doc. 145 (Clerk's
Courtroom Minute Sheet) and Doc. 148 (Transcript of Hearing).
that none of Mr. Lewis's arguments can justify the relief
he seeks in his motions, the court has decided to deny his
motions. This Order explains why.
legal principles governing Mr. Lewis's motions are well
known. The court thus summarizes them briefly.
weighing the merits of a motion for severance, “the
court must weigh the prejudice to a particular defendant
caused by the joinder against the important considerations of
economy and expedition in judicial administration.”
United States v. Mabry, 809 F.2d 671, 681 (10th Cir.
1987), overruled on other grounds, United States
v. Matthews, 485 U.S. 58 (1988); see also United States
v. Walton, 552 F.2d 1354, 1362 (10th Cir. 1977),
cert. denied, 431 U.S. 959 (1977). A severance
request presents an issue of discretion, not one of right.
The moving “defendant [thus] bears a heavy burden of
demonstrating prejudice to his case.” Mabry,
809 F.2d at 682 (citing United States v. Parnell,
581 F.2d 1374 (10th Cir. 1978), cert. denied, 439
U.S. 1476 (1979)). A trial court's decision denying a
motion for severance is reviewed for abuse of discretion.
Mabry, 809 F.2d at 682 (citing United States v.
Butler, 494 F.2d 1246 (10th Cir. 1974)).
Zafiro v. United States, the Supreme Court
recognized the “preference in the federal system for
joint trials of defendants who are indicted together.”
506 U.S. 534, 537 (1993). Joint trials “play a vital
role in the criminal justice system.” Richardson v.
Marsh, 481 U.S. 200, 209, (1987). They promote
efficiency and “serve the interests of justice by
avoiding the scandal and inequity of inconsistent
verdicts.” Id. at 210. Consequently, the
Supreme Court has approved joint trials many times.
Id.; see also Opper v. United States, 348
U.S. 84, 95 (1954).
decisions by our Circuit likewise recognize this preference.
See United States v. Peveto, 881 F.2d 844, 856 n.16
(10th Cir. 1989) (courts generally adhere to the principle
that “those indicted together, especially
co-conspirators, should be tried together” (quoting 24
J.W. Moore et al., Moore's Federal Practice -
Criminal Procedure § 614.05 (3d ed. 2010));
United States v. Jenkins, 904 F.2d 549, 556-57 (10th
Cir. 1990) (persons jointly indicted should be tried
Lewis's initial motion (Doc. 80) makes two arguments.
Mr. Lewis argues that a joint trial in this case would
present a Bruton problem. See Bruton v. United
States, 391 U.S. 123, 136-37 (1968). He bases this
argument on the idea that two of his co-defendants-Albert
Brown and Maurice Bluett-purportedly gave confessions to law
enforcement agents after their arrests. Also, Mr. Lewis's
motion assumes, their confessions implicated Mr. Lewis and,
possibly, Mr. Bush. Should the government admit those
confessions during a joint trial of Mr. Lewis and his lone
remaining co-defendant, and if Messrs. Brown and Bluett were
not subject to cross-examination, a joint trial would present
a confrontation clause problem. See id.; see
also United States v. Verduzco-Martinez, 186 F.3d 1208,
1212-13 (10th Cir. 1999).
deal has transpired, however, since Mr. Lewis filed his
motion back in January of this year. Both Mr. Brown and Mr.
Bluett have pleaded guilty to the conspiracy charge in Count
I, a charge that also accuses Mr. Lewis of participating in
the same conspiracy. As Mr. Lewis has acknowledged, the two
guilty pleas largely eliminated Mr. Brown and Mr.
Bluett's capacity to assert a Fifth Amendment privilege.
See Doc. 148 at 89. In sum, a critical assumption of
Mr. Lewis's Bruton argument is no longer
Mr. Lewis's initial motion argues that the
government's evidence would produce undue prejudice. He
bases this argument on discovery reports about the heroin
overdose of a person named Nathaniel Brady. According to Mr.
Lewis's motion, the government “has
suggested” that his co-defendant, Mr. Bush, had
supplied the heroin causing Mr. Brady's death.
of Mr. Brady's death-if offered at trial against Mr. Bush
but not against Mr. Lewis-could produce a “spillover
effect” of the kind noted in United States v.
Small, 423 F.3d 1164, 1182 (10th Cir. 2005). It likely
would require the court to engage in the close evaluation
outlined in Zafiro, 506 U.S. at 539. But the court
need not apply that analysis here. The government's
original Response asserts that it is not planning to offer
evidence about Mr. Brady's death at trial. Doc. 157 at 2.
This representation obviates Mr. Lewis's concern because,