United States District Court, N.D. California
ORDER DENYING DEFENDANTS' MOTION TO SEVER DOCKET
M. CHEN United States District Judge
No. 722 Defendants Rogelio Real and Juan Carlos Garcia-Gomez
("Defendants") moved to sever their trial from that
of co-defendants Jairo Hernandez and Carlos Vasquez. Docket
No. 722 ("Motion"). On June 8, 2016, the Government
opposed this Motion ("Opposition"). The Court heard
argument on the Motion on June 29, 2016. The Court DENIED the
motion for reasons stated on the record. This order
memorializes and supplements that ruling.
March 6, 2014, a federal grand jury indicted seventeen
defendants with various RICO-related crimes. Docket No. 241
("Superseding Indictment"). Ten defendants pleaded
guilty, and the remaining seven defendants have been divided
into two trial groups. Dockets Nos. 404-411, 421; Docket No.
445 ("Original Pretrial Order") at 1.
first group includes four defendants - Jairo Hernandez,
Carlos Vasquez, Juan Carlos Garcia-Gomez, and Rogelio Real.
Id. All four defendants are charged with
Racketeering Conspiracy (Count I), Conspiracy to Commit
Murder in Aid of Racketeering (Count II), Conspiracy to
Commit Assault with a Dangerous Weapon in Aid of Racketeering
(Count III), and Using and Carrying a Firearm During and in
Relation to a Crime of Violence and Possessing a Firearm in
Furtherance of a Crime of Violence (Count IV or VI
respectively). See Superseding Indictment.
Separately, defendants Hernandez and Vasquez are charged with
Murder in Aid of Racketeering (Count V) and Use of a Firearm
Causing Murder (Count VII) for the murder of Edson Lacayo.
See Id. Defendants have not been charged in
connection with this murder. However, they are charged with
Assault with a Dangerous Weapon in Aid of Racketeering (Count
VIII and XI) for stabbing suspected rival gang members with a
knife and a screwdriver. See id.
or more defendants may be charged in the same indictment or
information 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." Fed.
R. Crim. P. 8(b). Courts prefer joint trials of defendants
indicted together because joint trials "promote
efficiency and serve the interests of justice by avoiding the
scandal and inequity of inconsistent verdicts."
Zafiro v. United States, 506 U.S. 534, 537 (1993).
However, joinder, even if proper under Rule 8, may prejudice
a party. Id. at 538; see also Fed. R. Crim.
P. 14 ("Rule 14"). Thus, "if the joinder of
offenses or defendants . . . 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." Rule 14(a).
Supreme Court has held that "a district court should
grant severance under Rule 14 only if there is a serious risk
that a joint trial would prejudice 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. The moving party bears the
burden of proving that a joint trial is so manifestly
prejudicial that it violates the movant's right to a fair
trial. United States v. Mitchell, 502 F.3d 931, 963
(9th Cir. 2007). The Ninth Circuit has outlined several
factors that a court may consider in inquiring into the
prejudicial effect of a joint trial, including: (1) the
jury's ability to "collate and appraise the
individual evidence against each defendant"; (2) the
judge's diligence in providing limiting instructions to
the jury; (3) "whether the nature of the evidence and
the legal concepts involved are within the competence of the
ordinary juror"; and (4) whether "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." United States v.
Fernandez, 388 F.3d 1199, 1241 (9th Cir. 2004). Even if
there is risk of prejudice, Rule 14 does not require
severance. "[R]ather, it leaves the tailoring of the
relief to be granted, if any, to the district court's
sound discretion." Zafiro, 506 U.S. at 539.
Motion to Sever
move to sever their case from the trial of Hernandez and
Vasquez, arguing that a joint trial would be manifestly
prejudicial to them, in violation of their right to due
process. Mot. at 4. They contend a joint trial would create
spillover prejudice because the jury will hear evidence of
the Lacayo murder, for which Defendants were not charged, and
because Defendants would be paired with co-defendants charged
with more serious roles in the conspiracy. Id. at
prime consideration in assessing the prejudicial effect of a
joint trial is whether the jury can reasonably be expected to
compartmentalize the evidence as it relates to separate
defendants." United States v. Escalante, 637
F.2d 1197, 1201 (9th Cir. 1980). Multiple charges and
defendants may challenge the jury's ability to evaluate
the evidence against each defendant. Fernandez, 388
F.3d at 1242. Nonetheless, some prejudice is inherent in any
joinder, and "defendants are not entitled to severance
merely because they may have a better chance of acquittal in
separate trials." Zafiro, 506 U.S. at 540.
Moreover, "joint trial is particularly appropriate where
the co-defendants are charged with conspiracy, " because
the same evidence is admissible against each conspirator.
Fernandez, 388 F.3d at 1242.
Defendants have failed to demonstrate that a joint trial with
Hernandez and Vasquez would be manifestly prejudicial.
Although Defendants contend it would be prejudicial for the
jury to hear evidence of the Lacayo murder, the same evidence
would be introduced even if they were tried separately.
See Opp. at 5. Specifically, the Government asserts
that it will introduce evidence of the Lacayo murder to prove
Defendants' RICO conspiracy charges. Id.
Defendants also claim that pairing Defendants with Hernandez
and Vasquez is highly prejudicial because Hernandez and
Vasquez have been charged with more serious roles within the
conspiracy. Mot. at 5. However, "the fact that a
defendant is to be tried with a more culpable defendant [is]
not enough to require severance." Baker, 10
F.3d at 1388.
the nature of the charges and the availability of limiting
instructions weigh against severing Defendants' trial.
Courts discount the prejudicial effect in cases where the
nature of the evidence and the legal concepts involved are
not difficult. See Baker, 10 F.3d at 1388. In
Fernandez, the Ninth Circuit held that a jury may be
expected to evaluate evidence against each defendant in a
large RICO and VICAR case. See 388 F.3d at
1242-44. Here, the case similarly deals with RICO
and VICAR charges, which an ordinary juror can understand.
Additionally, Defendants have not demonstrated why limiting
instructions would not address their concerns of prejudicial
spillover. The Ninth Circuit has held that a district
court's careful limiting instructions "can reduce or
eliminate any possibility of prejudice arising from a joint
trial." Id. at 1243. Defendants claim that
limiting instructions would not be ...