United States v. Coley, 6:19-CR-06180 EAW

498 F.Supp.3d 415

UNITED STATES of America,

v.David C. COLEY and Darren K. Bordeaux, Defendants.

6:19-CR-06180 EAW

United States District Court, W.D. New York.

Signed November 3, 2020

Sean C. Eldridge, U.S. Attorney's Office, Rochester, NY, for United States of America.

Mark A. Foti, Rochester, NY, for Defendants.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

I. INTRODUCTION

Defendants David C. Coley ("Coley") and Darren K. Bordeaux ("Bordeaux") (collectively "Defendants") are charged by way of a Superseding Indictment ("SI") returned on March 19, 2020, with violations of 18 U.S.C. § 922(g)(1) (felon in possession of firearm or ammunition), related to the alleged possession of a 9 mm Luger (9x19mm) caliber, Jimenez Arms J.A. Nine, semiautomatic pistol (bearing serial number 334580) and 11 rounds of 9 mm Luger (9x19mm) ammunition on February 21, 2019. Because of the difference in their prior convictions, Coley and Bordeaux are charged in separate counts of the SI, with Coley charged in Count 1 as an Armed Career Criminal in violation of 18 U.S.C. § 924(e)(1) and Bordeaux charged in Count 2 in violation of 18 U.S.C. § 924(a)(2). The events leading up to these charges occurred on February 21, 2019, when at approximately 5:30 PM Bordeaux was allegedly involved in a menacing incident with a firearm, at or near 1306 Dewey Avenue in Rochester, New York. Less than two hours later, a vehicle operated by Bordeaux was stopped by law enforcement, and Coley (who was a passenger) fled from the vehicle. A firearm was allegedly located a short distance from where Coley was apprehended.

This Decision and Order expands upon the Court's reasoning for denying the motion to sever filed by Bordeaux (Dkt. 59) and for overruling the objections of Coley to the Magistrate Judge's denial of his motion to sever (Dkt. 67 (Coley's objections); Dkt. 48 (Magistrate Judge's Decision and Order); Dkt. 34 (Coley's severance motion)).

II. RULE 14 LEGAL STANDARD FOR SEVERANCE

Pursuant to Rule 14, "[i]f the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial 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). The decision to sever a trial pursuant to Rule 14 is "confided to the sound discretion of the trial court." United States v. Feyrer , 333 F.3d 110, 114 (2d Cir. 2003). A trial court's decision concerning severance is considered "virtually unreviewable," and the denial of such a motion "will not be reversed unless appellants establish that the trial court abused its discretion."

United States v. Cardascia , 951 F.2d 474, 482 (2d Cir. 1991) (citation omitted). In order to successfully challenge the denial of a request for severance, a defendant "must establish prejudice so great as to deny him a fair trial." Id. "It is well established that a defendant cannot avoid the risks of a joint trial simply because he might have a better chance of acquittal in a separate trial." United States v. Figueroa , 618 F.2d 934, 944 (2d Cir. 1980).

The party requesting severance must demonstrate substantial prejudice: "When defendants properly have been joined under Rule 8(b), a district court should grant a 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." United States v. Astra Motor Cars , 352 F. Supp. 2d 367, 369-70 (E.D.N.Y. 2005) (alteration omitted and quoting Zafiro v. United States , 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) ); see also Cardascia , 951 F.2d at 482 (in order to successfully challenge the denial of a request for severance, a defendant "must establish prejudice so great as to deny him a fair trial"); United States v. Friedman , 854 F.2d 535, 563 (2d Cir. 1988) ("[T]he defendant must show that he or she suffered prejudice so substantial as to amount to a ‘miscarriage of justice.’ "). "[D]iffering levels of culpability and proof are inevitable in any multi-defendant trial and, standing alone, are insufficient grounds for separate trials." United States v. Chang An–Lo , 851 F.2d 547, 557 (2d Cir. 1988) (citation omitted). "That the defendant would have had a better chance of acquittal at a separate trial does not constitute substantial prejudice." United States v. Carson , 702 F.2d 351, 366 (2d Cir. 1983).

There is a powerful presumption in favor of joint trials of defendants indicted together based upon the underlying policies of efficiency, avoiding inconsistent verdicts, providing a "more accurate assessment of relative culpability," avoiding victims and witnesses having to testify repeatedly, and avoiding the random favoring of "the last-tried defendants who have the advantage of knowing the prosecutor's case beforehand." Richardson v. Marsh , 481 U.S. 200, 210, 219 n.7, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) (citation omitted); see also Cardascia , 951 F.2d at 482 ("The deference given by an appellate court to a trial court's severance decision reflects the policy favoring joinder of trials, especially when the underlying crime involves a common plan or scheme and defendants have been jointly indicted."). The Second Circuit has instructed that "[c]onsiderations of efficiency and consistency militate in favor of trying jointly defendants who were indicted together...." United States v. Spinelli , 352 F.3d 48, 55 (2d Cir. 2003) (citations omitted); see also United States v. Van Sichem , No. SS 89 CR. 813 (KMW), 1990 WL 41746, at *1 (S.D.N.Y. Apr. 2, 1990) ("There is a strong presumption in favor of joint trials for jointly indicted defendants, particularly where, as here, the ‘crimes charged involve a common scheme or plan.’ ") (alteration omitted and quoting United States v. Girard , 601 F.2d 69, 72 (2d Cir. 1979) ).

III. BORDEAUX MOTION TO SEVER

As part of his omnibus pretrial motions filed on July 31, 2020, Bordeaux sought a severance pursuant to Rule 14 based on Coley's alleged post-arrest statements to law enforcement that place Bordeaux at the scene of the alleged menacing incident. (Dkt. 59 at 20-21). Specifically, Bordeaux argued that pursuant to Bruton v. United States , 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), his trial must be severed from Coley because of Coley's post-arrest statements. ( Id. ). The government opposed Bordeaux's motion, arguing that pursuant to Richardson v. Marsh , 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), severance was not warranted because Coley's statements were not incriminating on their face as to Bordeaux, and at best they simply placed Coley with Bordeaux. (Dkt. 70 at 14-15). Oral argument was held on August 27, 2020, at which time the Court indicated that Bordeaux's motion for severance was denied and a written decision confirming its reasoning would be forthcoming. (Dkt. 73).

Here, the alleged post-arrest statements by Coley involve him claiming that Bordeaux picked him up at his house at around 3:00 PM on February 21, 2019; that after driving around they stopped at a corner store located at 1306 Dewey Avenue in Rochester, New York; that Bordeaux entered the store to purchase water while Coley remained in the vehicle; they then stopped at a barber shop and bar, but Coley remained in the vehicle; they were then subsequently stopped by law enforcement and according to Coley, from the time Bordeaux picked him up until the time they were stopped by law enforcement, they were never separated. (Dkt. 59-1 at 1-2). Coley also allegedly stated, after being shown a video of the alleged menacing incident, that his timeline may have been off and the alleged menacing incident could have occurred before Bordeaux picked him up. (Id. at 2).

Coley's alleged statements are not incriminating on their face as to Bordeaux. Rather, the statements only become potentially incriminating for Bordeaux when linked with other evidence in the case. In other words, Coley's alleged statements place Bordeaux at or near the scene of the alleged menacing, but Coley denied any information concerning the alleged menacing and therefore the statements only potentially incriminate Bordeaux when linked with other evidence in the case purportedly establishing that Bordeaux menaced a victim at or near 1306 Dewey Avenue. As a result, pursuant to Richardson , Coley's post-arrest statements to law enforcement—which would only be admissible as to Coley—do not justify a severance.

IV. COLEY'S MOTION TO SEVER

On May 8, 2020, Coley filed a motion to sever pursuant to Rules 8(b) and 14 of the Federal Rules of Criminal Procedure. (Dkt. 34). Coley's severance motion focused on the fact that the count charged against him (Count 1) related to events allegedly occurring at 7:22 PM at Sawyer Street in Rochester, New York, when Coley was arrested by law enforcement, whereas the count charged against Bordeaux (Count 2) related to an alleged menacing event occurring about two hours earlier at or near 1306 Dewey Avenue, Rochester, New York. (Dkt. 34-2 at 4). Although possession of the same firearm is alleged in each count of the SI, Coley argues in his severance motion that a witness did not positively identify the firearm recovered after Coley's arrest as the same firearm possessed earlier that day by Bordeaux. (Id. at 5).¹ Coley argues that joinder was improper under Rule 8(b), and alternatively that severance is warranted under Rule 14 because of the prejudice that he will suffer from a delay in his trial² and being associated with Bordeaux who is alleged to have engaged in a violent act of menacing. The government filed its opposition to the severance motion on June 15, 2020. (Dkt. 42). On July 21, 2020, United States Magistrate Judge Mark W. Pedersen³ issued a Decision and Order⁴ denying Coley's severance motion. (Dkt. 48). Magistrate...