United States v. Flores

510 F.Supp.3d 558

UNITED STATES of America, Plaintiff,

v.Nelson ALEXANDER FLORES, a/k/a Mula, Defendant.

United States of America, Plaintiff,

v.Juan Pablo Flores Castro, a/k/a Juan Pablo Guerra-Flores a/k/a Duende, Defendant.

Case No. 2:17-CR-164(10)

Case No. 2:17-CR-164(17)

United States District Court, S.D. Ohio, Eastern Division.

Signed December 30, 2020

Brian Martinez, Noah R. Litton, United States Attorney's Office, Columbus, OH, for Plaintiff.

David L. Doughten, Cleveland, OH, Robert J. Cochran, Robert Cochran Law, LLC, Columbus, OH, for Defendant Nelson Alexander Flores.

Bradley Davis Barbin, Terry Keith Sherman, Columbus, OH, for Defendant Juan Flores-Castro.

OPINION AND ORDER

EDMUND A. SARGUS, JR., UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant Juan Pablo Flores Castro's Motion for Severance of Trial (ECF No. 910) and Defendant Nelson Alexander Flores’ Motion for Severance of Trial (ECF No. 1139). The Government opposes both motions. (ECF Nos. 924, 1148.) For the reasons that follow, the Court DENIES both motions.

I.

On February 15, 2018, the grand jury returned the Second Superseding Indictment in this case. (ECF No. 179.) Count One alleges that the two moving defendants, Mr. Flores-Castro, Mr. Alexander Flores, and 21 co-defendants are all members and associates of La Mara Salvatrucha, commonly known as MS-13. The charging document alleges that MS-13 is a violent, transnational criminal organization composed primarily of immigrants or descendants of immigrants from El Salvador, Guatemala, and Honduras.

Count One further alleges that all 23 defendants conspired to violate federal law by conducting and participating, directly and indirectly, in the conduct of the affairs of a criminal enterprise (MS-13) through a pattern of racketeering activity involving multiple acts of murder, extortion, drug trafficking, money laundering, obstruction of justice, and witness tampering, in violation of 18 U.S.C. § 1962(d) ("RICO"). The Second Superseding Indictment identifies 59 overt acts, including five homicides and a host of other crimes, that the defendants and others allegedly committed in furtherance of the racketeering conspiracy.

Nineteen defendants have entered guilty pleas; one defendant remains at-large; and three defendants are proceeding to trial in May 2021 – the two defendants whose motions are before the Court, Messrs. Flores Castro and Alexander Flores, and defendant Cruz Alberto-Arbarngas. All three of these defendants are charged in the Second Superseding Indictment with conspiracy to commit racketeering (Count One). Mr. Alberto-Arbarngas and Mr. Flores Castro face additional charges for murder in aid of racketeering and murder through the use of a firearm during and in relation to a crime of violence for the murders of Wilson Villeda (Count Three) and Salvador Martinez-Diaz (Counts Four and Five).

II.

Federal Rules of Criminal Procedure 8(b) and 14(a) govern the joinder and severance of defendants for trial. The Sixth Circuit recently stated:

Defendants may be indicted together where they collectively participate in the same offense. Fed. R. Crim. P. 8(b). While a court may order separate trials if "consolidation for trial appears to prejudice a defendant," Fed. R. Crim. P. 14(a), severance is not the norm. "Joint trials are favored[.]" United States v. Tocco , 200 F.3d 401, 413 (6th Cir. 2000). It's not just more efficient to have one trial and one set of evidentiary admissions for all defendants at once, United States v. Warner , 971 F.2d 1189, 1196 (6th Cir. 1992), but a joint trial also decreases the risk of inconsistent verdicts, Richardson v. Marsh , 481 U.S. 200, 210, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). Severance is appropriate, then, "only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants[.]" Zafiro v. United States , 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993).

U.S. v. Tisdale , 980 F.3d 1089, 1094 (6th Cir. 2020) (parallel citations omitted). In other words, severance is necessary "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, 113 S.Ct. 933.

The Sixth Circuit and the Supreme Court have explained the "strong policy presumption" in favor of joint trials, United States v. Caver , 470 F.3d 220, 238 (6th Cir. 2006), stating "joint trials conserve [government] funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial." United States v. Lane , 474 U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986) (quotation omitted). For all of these reasons, "[t]here is a preference in the federal system for joint trials." Zafiro v. United States , 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993).

Courts have refused to grant severance on the grounds that: (i) "a defendant might have a better chance for acquittal if tried separately"; (ii) "the co-defendants had different levels of culpability than the defendant seeking severance"; or (iii) "evidence may be admissible against one defendant but not against others." 1A Charles Alan Wright et al., Federal Practice and Procedure , § 223 (4th ed. 2015) (collecting cases); see also United States v. Gardiner , 463 F.3d 445, 473 (6th Cir. 2006) ; United States v. Lloyd , 10 F.3d 1197, 1215 (6th Cir. 1993). "The risk of prejudice will vary with the facts in each case," and "less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice." Zafiro , 506 U.S. at 539, 113 S.Ct. 933. Motions for severance under Rule 14 thus fall under the "sound discretion" of the district court. Id. at 541, 113 S.Ct. 933.

III.

The defendants together and/or separately move for severance based on alleged constitutional violations, on the contention that the evidence admitted against a co-defendant will be prejudicial, and because there is a potential for antagonistic defenses at trial. The Government opposes severance, arguing that (A) the defendants have failed to show there is a serious risk that a joint trial would compromise a specific right of one of the defendants or prevent the jury from making a reliable judgment about guilt or innocence, (B) Mr. Alexander Flores has failed to show that evidence admitted against a co-defendant will prejudice him, (C) Mr. Flores Castro has failed to show the existence of prejudice from antagonistic defenses, and (D) that there are no applicable exceptions or reasons not to follow the policy preferences that strongly favor joint trials.

A. The Sixth Amendment's Confrontation Clause

Both Mr. Flores Castro and Mr. Alexander Flores maintain that failure to sever their cases will violate their rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. Specifically, the defendants contend that their constitutional rights will be violated because of (1) the potential admission of co-defendants’ out-of-court statements at trial, and (2) a videotaped deposition of an unavailable witness that may be used at trial

1. Co-Defendants’ Statements

Mr. Flores Castro asserts that in a joint trial, the government "may ... attempt to use inculpatory information elicited from co-defendant(s) at the time of their arrest or on other known and unknown occasions" and that in the event he is unable to cross-examine such declarants, his Sixth Amendment rights would be violated. (Mot. at 1, ECF No. 910.) This Court disagrees.

First, the Government has the burden to establish the existence of the charged conspiracy, where statements by co-defendants will likely be admissible at trial as co-conspirator statements. See Fed. R. Evid. 801(d)(2)(E). Other statements by co-defendants could be admissible as "statements against interest." See Fed. R. Evid. 804(b)(3). Either way, such statements would not raise Confrontation Clause concerns because they are not testimonial. See Giles v. California , 554 U.S. 353, 376, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008) ("[O]nly testimonial statements are excluded by the Confrontation Clause.") (emphasis in original).

Joint trials regularly involve evidence that is admissible against some defendants but not others. This alone is not a reason for severance. Gardiner , 463 F.3d at 473 ("Severance should not be granted where the same evidence is admissible against all defendants, nor should it be granted where evidence is admissible against some defendants but not others."); United States v. Warner , 971 F.2d 1189, 1196 (6th Cir. 1992) ("[S]everance is not required if some evidence is admissible against some defendants but not others."). The Supreme Court has instructed that measures short of severance can be taken to ensure that the admission of out-of-court statements does not implicate Confrontation Clause considerations, such as appropriate redactions and the use of limiting instructions to the jury. Marsh , 481 U.S. at 211, 107 S.Ct. 1702.

Courts can "cure" any risk of prejudice "with proper [limiting] instructions," which "juries are presumed to follow." Zafiro , 506 U.S. at 539, 113 S.Ct. 933 (quotation omitted); see also United States v. Swift , 809 F.2d 320, 323 (6th Cir. 1987) ("[A] jury is presumed capable of sorting out evidence and considering each count and each defendant separately."). Indeed, the Sixth Circuit has published several pattern jury instructions for this exact scenario. See Sixth Circuit Pattern Jury Instructions, § 2.01D (2019) ("Separate Consideration—Multiple Defendants Charged with Different Crimes"); id. § 7.18 ("Separate Consideration—Evidence Admitted Against Certain Defendants Only").

Further, it is not clear whether the unnamed declarants about whom Mr. Flores-Castro has expressed concern will testify at trial. To the extent that a declarant takes the witness stand and is subject to...