United States v. Age

SECTION M

ORDER & REASONS

BARRY W. ASHE, UNITED STATES DISTRICT JUDGE

Before the Court is a motion by defendants Louis Age Jr. (“Age Jr.”), Louis Age III (“Age III”), Ronald Wilson Jr., Kendrick Johnson, and Stanton Guillory (collectively, “Defendants”) to sever the trials in this matter.^[1] The United States of America (the “Government”) responds in opposition.^[2] Also before the Court is a motion by defendant Age III to sever his trial from that of Age Jr., ^[3] which the Government opposes.^[4] Age Jr. replies to this opposition.^[5] Considering the parties' memoranda, the record, and the applicable law, the Court denies the motions.

I. BACKGROUND

On August 17, 2017, the grand jury in the United States District Court for the Eastern District of Louisiana returned a superseding indictment in this case charging the five Defendants with various counts arising from the July 27, 2012 murder of Milton Womack.^[6] Womack was a co-defendant in a Medicare fraud case filed in the United States District Court for the Middle District of Louisiana, and styled United States v. Louis T. Age, Jr., et al., Criminal Action No. 11-105. Womack was murdered two days after documents were filed in that case indicating that he

was changing his plea to guilty. The Government's theory of this case is that the co-defendants here conspired to murder Womack in retaliation for his past cooperation in the Medicare fraud case and to prevent him from testifying at trial in that matter.

More specifically, the Government intends to prove, at least, the following set of facts: Johnson (Age Jr.'s former son-in-law) advised and encouraged Age Jr. to have Womack killed.^[7]Age Jr. took that advice and had Age III (Age Jr.'s son) and Wilson, who were both involved in drug dealing and street life, to publicize among the members of a New Orleans gang that the Age family was willing to pay thousands of dollars for Womack's murder.^[8] Age III and Wilson hired Guillory, a gang member who knew Womack was a witness in a federal case, to do the job.^[9] Age III, Wilson, and Johnson conducted surveillance to locate Womack for Guillory.^[10] Guillory murdered Womack on July 27, 2012.^[11] Age Jr. gave Age III the money to pay for the hit.^[12] Age III paid Guillory some, but not all, of that money.^[13] Wilson approached Age Jr. when Age III failed to fully pay Guillory in an attempt to prevent a conflict with Guillory.^[14]

To that end, Count 1 of the indictment charges Defendants with conspiring to commit murder for hire, in violation of 18 U.S.C. § 1958.^[15] Count 2 charges Defendants with using a facility of interstate commerce (a cell phone) to commit murder for hire, in violation of 18 U.S.C. §§ 1958 and 2.^[16] In Count 3, Defendants are charged with conspiring to murder Womack to prevent him from testifying in the Medicare fraud case, in violation of 18 U.S.C. §§ 1512(a)(3)(A)

and 1512(k).^[17] Count 4 charges Defendants with killing Womack to prevent him from testifying in the Medicare fraud case, in violation of 18 U.S.C. §§ 1512(a)(1)(A), 1512(a)(3)(A), and 2.^[18]Count 5 charges Age Jr. and Age III with killing Womack to prevent him from communicating with law enforcement about his knowledge of the Medicare fraud scheme, in violation of 18 U.S.C. §§ 1512(a)(1)(C), 1512(a)(3)(A), and 2.^[19] In Count 6, Defendants are charged with conspiring to murder Womack in retaliation for his cooperation with law enforcement, in violation of 18 U.S.C. §§ 1513(a)(2)(A) and 1513(f).^[20] Count 7 charges Defendants with killing Womack in retaliation for his cooperation with law enforcement, in violation of 18 U.S.C. §§ 1513(a)(1)(B), 1513(a)(2)(A), and 2.^[21] Count 8 charges Johnson, Age Jr., and Age III with conspiring to use intimidation, threats, and corrupt persuasion to influence, delay, or prevent testimony in the Medicare fraud case and hindering, delaying, and preventing further communication with law enforcement relating to the commission or possible commission of a federal offense (healthcare fraud), all in violation of 18 U.S.C. § 1512(k).^[22] In Count 9, Johnson, Age Jr., and Age III are charged with conspiring to retaliate against a witness for aiding law enforcement in the Medicare fraud case, in violation of 18 U.S.C. § 1513(f).^[23] Count 10 charges Johnson with making false statements to the grand jury regarding Womack's murder, in violation of 18 U.S.C. § 1623.^[24] In Count 11, Age III is charged with making false statements to FBI agents in violation of 18 U.S.C. § 1001.^[25]

II. PENDING MOTION

The Defendants essentially all seek separate trials.^[26] All Defendants argue that Johnson should be tried separately due to his health issues.^[27] It is undisputed that Johnson is a diabetic in end-stage renal failure who requires thrice-weekly dialysis to survive.^[28] Johnson's current dialysis schedule is Monday, Wednesday, and Friday, leaving him available for trial on only Tuesday and Thursday.^[29] Defendants argue that Johnson's limited availability will cause an already lengthy trial to become even longer, which will result in undue prejudice to all Defendants and the jurors.^[30]

Defendants also seek severances based on the “spillover effect” of the potential admission of other crimes evidence under Rule 404(b) of the Federal Rules of Evidence.^[31] All Defendants seek to be severed from Guillory due to the potential admission of evidence concerning other violent crimes he allegedly committed.^[32] Guillory and Wilson seek to have their trials severed from those of Age Jr., Age III, and Johnson because of the potential admission of evidence concerning the Age family's participation in various fraud schemes.^[33]

Further, Age III argues that his trial should be severed from that of Age Jr. because of the potential admission of Age Jr.'s statements to law enforcement that implicate Age III.^[34] Age III contends that a joint trial would violate his confrontation clause rights by introducing incriminating testimony from a co-defendant who cannot be forced to testify.

In opposition, the Government argues that no severance is warranted.^[35] The Government posits generally that the law favors joint trials, especially in conspiracy cases.^[36] More specifically, with respect to Johnson's limited availability, the Government argues that it is actively seeking accommodations to permit Johnson to attend trial on more than two days per week.^[37] Further, the Government argues that, while a two-day-per-week trial is not ideal, it will not unduly prejudice Defendants or offer an unfair advantage to the Government.^[38] As to the various requested severances based on the potential admission of Rule 404(b) evidence, the Government points out that this Court denied an earlier motion by Johnson to have his trial severed from that of Guillory due to the potential spillover effect, and that nothing has changed since that ruling.^[39] The Government also argues that evidence concerning the Age family's prior involvement in the healthcare fraud scheme would be admitted at separate trials for Wilson and Guillory because that evidence is necessary to prove why Womack was killed, namely, that he was a federal witness.^[40]Thus, there is no reason to sever the trials of Age Jr., Age III, and Johnson from those of Guillory and Wilson due to any potential spillover effect.^[41] As to Age III's motion to sever his trial from that of Age Jr., the Government argues that the confrontation clause issue can be cured by appropriately redacting Age Jr.'s statement so that it does not inculpate Age III and giving a limiting instruction to the jury.^[42] Age Jr. replies that such a redaction would prejudice him.^[43]

III. LAW & ANALYSIS

Pursuant to Rule 8(b) of the Federal Rules of Criminal Procedure, defendants may be charged together in one indictment “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). “There is a preference in the federal system for joint trials of defendants who are indicted together” because joint trials promote judicial efficiency and serve the interests of justice by avoiding the risk of inconsistent verdicts. Zafiro v. United States, 506 U.S. 534, 537 (1993) (quoting Richardson v. Marsh, 481 U.S. 200, 209-10 (1987)). This is particularly true in conspiracy cases. United States v. Ledezma-Cepeda, 894 F.3d 686, 690 (5th Cir. 2018).

However, under Rule 14 “[i]f 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.” Fed. R. Crim. P. 14(a). “Rule 14 does not require severance even if prejudice is shown.” Zafiro, 506 U.S. at 538-39. Rather, “Rule 14 leaves the determination of risk of prejudice and any remedy that may be necessary to the sound discretion of the district courts.” Id. at 541. “And, as a substantive matter, [the Fifth Circuit's] caselaw does not reflect a ‘liberal attitude toward severance.'” Ledezma-Cepeda, 894 F.3d at 690 (quoting United States v. McRae, 702 F.3d 806, 822 (5th Cir. 2012)).

Severance under Rule 14 “is an exception warranted ‘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.'” Id. (quoting Zafiro, 506 U.S. at 539) (emphasis in original; citation omitted). To overcome the presumption in favor of joinder, a defendant must demonstrate that: (1) a joint trial would prejudice him to such an extent that the district court could not provide adequate protection through a limiting...