United States District Court, D. Minnesota
February 24, 2014
United States of America, Plaintiff,
(1) Tram Vo, (2) Khoi Van, and Defendants.
Kevin S. Ueland, Esq., Assistant United States Attorney, for the plaintiff, United States of America;
Manvir K. Atwal, Esq., Federal Defender's Office, for defendant Tram Vo.
Frederick K. Bruno, Esq., for defendant Khoi Van.
REPORT AND RECOMMENDATION
JEFFREY J. KEYES, Magistrate Judge.
This action came on for hearing before the Court, Magistrate Judge Jeffrey J. Keyes, on February 21, 2014, at the U.S. Courthouse, 316 North Robert Street, St. Paul, MN 55101. The Court issued an Order on Motions, filed February 21, 2014, therein reserving defendant Khoi Van's motion for severance for submission to the district court on report and recommendation.
Based upon the file and documents contained therein, along with the memorandums and arguments of counsel, the magistrate judge makes the following:
FINDINGS AND CONCLUSIONS
Defendant Khoi Van has filed a motion for severance requesting that he receive a separate trial from his co-defendant. (Doc. No. 51.) In his motion Khoi Van asserts generally that: (1) the majority of the evidence against the defendants in this matter does not involve him and would therefore be prejudicial to his defense; and (2) there is a conflict of interest between the co-defendants.
The government opposes the motion, noting a strong preference for joint trials for co-conspirators and the defendant's failure to make any particularized showing of prejudice. The Government further contends that jury instructions can cure any potential confusion that might arise with respect to the charges against each defendant and the application of evidence to particular charges.
Two or more defendants may be charged in the same indictment if they are alleged to have participated in the same transaction or series of incidents constituting an offense or offenses. Fed. R. Crim. P. 8(b). "There is a preference in the federal system for joint trials of defendants who are indicted together... [because] they promote efficiency and serve the interests of justice by avoiding the scandal and inequality of inconsistent verdicts." Zafiro v. United States, 506 U.S. 534, 537 (1993) (internal quotation marks and citations omitted). Persons charged with conspiracy should generally be tried together, and it will rarely be improper to join co-conspirators in a single trial. United States v. Kindle, 925 F.2d 272, 277 (8th Cir. 1991); United States v. Stephenson, 924 F.2d 753, 761 (8th Cir. 1991), cert. denied, 502 U.S. 813 (1991).
Here, Defendants Tram Vo and Khoi Van have been indicted for conspiracy to commit wire fraud. (Doc. No. 6.) Also, both of them have been individually charged on multiple counts of wire fraud. Under these circumstances, the general rule in the federal system is that the co-conspirators should be tried together. See Fed. R. Crim. P. 8(b).
The defendants in this case were properly joined under Rule 8 and there is no requirement for severance based upon misjoinder. Rule 14 severance is a remedy for prejudice that may develop during trial, and the decision on a Rule 14 motion for severance lies within the sound discretion of the trial court. United States v. Robaina, 39 F.3d 858, 861 (8th Cir. 1994). The record in this matter offers no compelling indication as to how either defendant is prejudiced by joinder with the other defendant in this case, particularly to the extent necessary to overcome the preference for joinder of defendants in conspiracy cases. Specifically, it is not patently apparent that a jury would be unable to distinguish and apply the evidence relating to one defendant from evidence relating to another defendant, and there has not been a persuasive particularized showing that a joined trial will prevent introduction of exculpatory evidence or will allow introduction of otherwise inadmissible evidence with respect to any defendant. A defendant is not entitled to severance "simply because evidence may be admissible as to [a co-defendant] but not as to him." United States v. Helmel, 769 F.2d 1306, 1322 (8th Cir. 1985). The values of justice and efficiency gained by joint trials cannot be overcome without a more exacting showing by Defendant Khoi Van.
The court further concludes that with the assistance of instructions from the trial court the jury will be fully able to distinguish the acts of each defendant from the acts of the other defendant so as to avoid prejudice to either of them. Severance is a remedy that can be provided at the time of trial if appropriate under the circumstances. At present, there has been no showing to support a recommendation for severance of defendants.
Based upon the foregoing Findings and Conclusions, the Magistrate judge makes the following:
It is hereby recommended that Defendant (2) Khoi Van's Motion for Severance be denied [Docket No. 51].