United States District Court, D. Minnesota
Thomas
M. Hollenhorst, Esq., Assistant United States Attorney,
counsel for Plaintiff.
Ryan
Christian Else, Esq., Brockton D. Hunter, PA, counsel for
Defendant Hernandez-Guevara.
Elizabeth M. Forsythe, Esq., Dorsey & Whitney LLP,
counsel for Defendant LeeAnn Rios.
REPORT AND RECOMMENDATION
BECKY
R. THORSON UNITED STATES MAGISTRATE JUDGE.
This
matter comes before the Court on a joint motion to sever
filed by Defendants Rodrigo Hernandez-Guevara and Joyce
LeeAnn Rios. (Doc. No. 53.) Defendants Hernandez-Guevara and
Rios, along with Defendant Agustin Hernandez-Coria, were each
charged with one count of conspiracy to distribute
methamphetamine, two counts of distribution of
methamphetamine, and one count of possession with intent to
distribute methamphetamine. (Doc. No. 24.) After pretrial
motions were filed, Hernandez-Coria reached a plea
agreement[1] and withdrew his motions. (Doc. Nos. 64.)
Hernandez-Guevara
and Rios are married, and they argue that they would be
prejudiced if tried together. This Court held a hearing on
this motion on February 1, 2019. (Doc. No. 67.) At the
motions hearing, the Government stated that it did not oppose
the request, following Hernandez-Coria's decision to
plead guilty; however, the Government noted that two trials
might not be judicially efficient. For the reasons stated
below, this Court recommends that severance be granted.
I.
Background
Defendants,
as noted above, are charged with possession and/or sale of
methamphetamine. Rios is charged as an aider and abettor for
driving Hernandez-Coria and her husband, Hernandez-Guevara,
to locations where the alleged drug sales took place. Rios
and Hernandez-Guevara seek severance because their defenses
would be compromised in a joint trial due to evidentiary
issues involving various marital privileges and the ability
to introduce potentially impermissible character evidence.
Defendant Rios further argues that she suffers from certain
psychological impairments that are caused by a history of
abuse from her husband, and her symptoms would be exacerbated
by her husband's presence at trial.
II.
Analysis
Under
Federal Rule of Criminal Procedure 8(b), an indictment may
charge two 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.” There is a preference in the federal
system for joint trials of defendants who are indicted
together. Zafiro v. United States, 506 U.S. 534, 537
(1993). Joint trials “promote efficiency and serve the
interests of justice by avoiding the scandal and inequity of
inconsistent verdicts.” Id.
Rule
14(a) of the Federal Rules of Criminal Procedure provides
that if “the joinder of offenses or defendants in an
indictment . . . 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.” When defendants “properly
have been joined under Rule 8(b), a district court should
grant 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. To warrant severance, a
defendant “must show ‘real prejudice,' that
is, ‘something more than the mere fact that he would
have had a better chance for acquittal had he been tried
separately.'” United States v. Mickelson,
378 F.3d 810, 818 (8th Cir. 2004) (quoting United States
v. Oakie, 12 F.3d 1436, 1441 (8th Cir. 1993)).
Rios
and Hernandez-Guevara jointly argue that there should be
separate trials due to the marriage confidential
communications privilege, which “prohibits testimony
regarding private intra-spousal communications.”
United States v. Evans, 966 F.2d 398, 401 (8th Cir.
1992). As noted above, Rios intends to testify about
communications that took place between herself and
Hernandez-Guevara when traveling between Madison and St.
Paul. These communications would appear to satisfy the
required elements to apply the privilege. See Evans,
966 F.2d at 401 (stating that the communication must have
been “words or acts that are intended as a
communication to the other spouse, ” must “occur
during a time when the marriage is valid under state law,
” and “must be made in confidence” and not
“in the presence of a third party”). While Rios
wishes to waive application of the privilege and testify
regarding these communications at trial, Hernandez-Guevara
could invoke the privilege and attempt to block Rios from
providing the testimony. See Id. (“Once these
three prerequisites are met, a defendant may invoke the
privilege to prevent his spouse from testifying as to the
content of the protected communication.”). The
potential conflict between Rios's constitutional right to
testify on her own behalf at trial and
Hernandez-Guevara's right to invoke the marriage
confidential communications privilege provides another
justification in favor of separate trials.[2]
Further,
in addition to the marriage confidential communications
privilege, the adverse spousal testimony privilege may also
be implicated at trial. “Under the adverse spousal
testimony privilege . . . an individual ‘may be neither
compelled to testify nor foreclosed from testifying'
against the person to whom he or she is married at the time
of trial.” United States v. Bad Wound, 203
F.3d 1072, 1075 (8th Cir. 2000) (quoting Trammel v.
United States, 445 U.S. 40, 53 (1980)). This privilege
rests with the testifying spouse. See Id. Rios could
therefore take the stand in her own defense, as she intends
to do, but by subjecting herself to cross-examination, could
be forced to give testimony that corroborates the
Government's case against her husband, which she does not
want to do. Rios should not be forced to choose between her
right to testify in her own defense and her desire not to
incriminate her husband. See, e.g., United
States v. Ali, No. CRIM.NO. 04-CR-611-2, 2005 WL 697482,
at *1 (E.D. Pa. Mar. 25, 2005) (severing the trial of
codefendant spouses because the wife should not be forced to
choose between “her right to testify on her own behalf
and her privilege not to be compelled to testify adversely to
her spouse”).
Finally,
Rios intends to testify at trial regarding relevant
communications with her husband, including during multiple
car trips she took with him from Madison, Wisconsin, to St.
Paul, Minnesota, which are the subject of the
Government's case. These communications, according to
Rios, are “necessary to her defense to give context to
the allegations against her.” (Doc. No. 54, Def.'s
Mem. 5.) Rios, however, suffers from psychological
impairments, including post-traumatic stress disorder,
dissociative disorder, and severe anxiety. (Def.'s Mem.
1; see also Doc. No. 54-1, December 13, 2018 Letter
from C. Elizabeth Perry, MD.) Rios's impairments are
caused by a history of abuse, including abuse by
Hernandez-Guevara, and Rios maintains that her husband's
presence at trial would exacerbate her symptoms. Thus, Rios
argues that if she is tried alongside her husband, she will
be unable to testify, or at least impaired in her ability to
testify. This Court concludes that Rios should be tried
separately from Hernandez-Guevara due to the serious risk
that a joint trial would compromise ...