ORDER DENYING DEFENDANTS' MOTION TO SEVER
SUSAN ILLSTON, District Judge.
On October 11, 2013, the Court heard argument on a motion to sever filed by defendants Mario Bergren and Armando Acosta. Both defendants seek to sever their trials from those of their co-defendants, alleging misjoinder and prejudicial joinder. Having considered the arguments of counsel and the papers submitted, the Court DENIES the defendants' motion.
In July 2012, Mario Bergren and Armando Acosta, along with seventeen other individuals, were charged with, inter alia, conducting the affairs of a RICO organization and participating in a RICO conspiracy, in violation of 18 U.S.C. § 1962. See generally Second Superseding Indictment. Fourteen of those originally charged have now pled guilty. See Government's Opposition to Defendant Mario Bergren's Motion to Sever ("Gov.'s Opp'n") at 2. The remaining five defendants are scheduled for a joint trial, beginning on March 31, 2014.
All five defendants are charged in Counts One, Two, and Three of the indictment, which are conspiracy charges: "Racketeering Conspiracy, " "Conspiracy to Commit Murder in Aid of Racketeering, " and "Conspiracy to Commit Assault with a Dangerous Weapon in Aid of Racketeering." Second Superseding Indictment ¶¶ 1-33. Each defendant is also charged in at least one additional count, although the charges range from accessory charges to murder. Neither Bergren nor Acosta is named in the substantive murder charges.
Mario Bergren and Armando Acosta now move to sever their trial from that of the remaining three defendants, arguing misjoinder and prejudicial joinder. Motion to Sever Defendants Because of Prejudicial Joinder ("Def.s' Mot.") at 1.
Under Federal Rule of Criminal Procedure 8(b), "[t]he 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." When defendants are indicted together, the federal system evinces a preference for joint trials. See Zafiro v. United States, 506 U.S. 534, 537 (1993); see also United States v. Lane, 474 U.S. 438, 449 (1986) (recognizing that joint trials "conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial") (quoting Bruton v. United States, 391 U.S. 123, 134 (1968)). Only where joinder would create "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" must the Court grant severance. Zafiro, 506 U.S. at 539. Neither a joint trial with more culpable co-defendants nor an improved possibility of acquittal in a separate trial is sufficient by itself to warrant severance. United States v. Fernandez, 388 F.3d 1199, 1241 (9th Cir. 2004) (citing United States v. Baker, 10 F.3d 1374, 1388 (9th Cir. 1993), overruled on other grounds by United States v. Nordby, 225 F.3d 1053 (9th Cir. 2000)).
Courts consider several factors when determining the prejudicial effect of a joint trial: (1) the jury's ability "to collate and appraise the individual evidence against each defendant"; (2) the judge's care in issuing appropriate limiting instructions; (3) the ordinary juror's competence in evaluating the evidence and applicable legal concepts; and (4) whether the defendants can demonstrate, with particularity, a risk that the joint trial would "compromise a specific trial right... or prevent the jury from making a reliable judgment about guilt or innocence." Fernandez, 388 F.3d at 1241. The first two factors are weighed most heavily. Id.
Bergren and Acosta argue that severance should be granted for two reasons: (1) the jury may be improperly prejudiced against them due to the more severe crimes with which the other co-defendants are charged; and (2) each of the co-defendants may wish to present defenses that are antagonistic to one another. Def.s' Mot. at 10-15. The Court rejects both arguments.
1. The Risk of Spillover Prejudice Does Not Warrant Severance.
Bergren and Acosta contend that severance is necessary because the government may introduce evidence of serious crimes allegedly committed by the other co-defendants, which may cause an emotional response in the jury, and in turn create a risk of spillover prejudice against Bergren and Acosta.
Joint trials are particularly appropriate in conspiracy cases, where the government must introduce evidence of co-conspirators' acts simply to prove up the existence of a conspiracy. Fernandez, 388 F.3d at 1242. An especially complex case, where co-defendants' degrees of culpability are markedly different, may present a risk of prejudice. Zafiro, 506 U.S. at 539. Conversely, however, a jury's assessment of relative culpability may ...