US v. Ailsworth, 94-40017-01-07-SAC.

873 F. Supp. 1450

UNITED STATES of America, Plaintiff, v. Jesse AILSWORTH, Jr., a/k/a "J.C.", Undra P. Mock, Kenneth R. Torain, Arnett Louise Rice, a/k/a Delores Perry, Terence J. Douglas, a/k/a "T", George T. Stewart, Jr., a/k/a "Pigg", and Calvin Lee Conway, Defendants.

No. 94-40017-01-07-SAC.

United States District Court, D. Kansas.

November 18, 1994.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Joseph D. Johnson, Joseph D. Johnson, Chtd., Charles D. Dedmon, Office of Federal Public Defender, Topeka, KS, for defendant Jesse Ailsworth, Jr., aka "J.C."

F.G. Manzanares, Jerold E. Berger, Topeka, KS, for defendant Undra P. Mock.

James G. Chappas, Jr., Topeka, KS, for defendant Kenneth R. Torain.

Mark L. Bennett, Jr., Bennett & Dillon, Topeka, KS, Benjamin C. Wood, Lawrence, KS, for defendant Arnett Louise Rice aka Delores Perry aka Arnett L. Rice.

Matthew B. Works, Works, Works & Works, P.A., Amy C. Bixler, Alan G. Warner, Topeka, KS, for defendant Terence J. Douglas, aka "T" aka Terrance J. Douglas.

Stephen W. Kessler, Topeka, KS, for defendant George Stewart, Jr., aka "Pigg".

Jeannine D. Herron, William K. Rork, Rork Law Office, Topeka, KS, for defendant Calvin Lee Conway aka Calvin L. Conway.

Gregory G. Hough, Office of U.S. Atty., Topeka, KS, for U.S.

MEMORANDUM AND ORDER

CROW, District Judge.

On March 24, 1994, the grand jury returned a twenty count superseding sealed indictment charging certain violations of 21 U.S.C. § 846 (conspiracy to possess with intent to distribute cocaine base), 21 U.S.C. § 841(a)(1) (possession with intent to distribute), 7 U.S.C. § 2024(b) (unlawful acquisition of food stamps), 18 U.S.C. § 924(c)(1) (use of a firearm during and in relation to a drug trafficking crime), and 26 U.S.C. § 5861(h) (receipt or possession of a firearm without serial number or other identification).

On August 24, 1994, this court entered a seventy-two page memorandum and order disposing of several pretrial motions filed by the defendants. See United States v. Ailsworth, 1994 WL 539347, 1994 U.S. Dist. LEXIS 14413 (D.Kan. Aug. 24, 1994). In that order, certain motions were taken under advisement to be decided on the eve of or during trial.

On October 3, 1994, trial was set to commence on October 31, 1994. On October 19, 1994, the grand jury returned a thirty-seven page second superseding indictment, adding twenty-five additional counts, for a total of forty-five counts. In addition to the crimes charged in the superseding indictment, the second superseding indictment charges violations of 21 U.S.C. § 843(b) (use of a communication facility to cause or facilitate a felony drug trafficking crime), 21 U.S.C. § 856 (control of a building for the purpose of storing a controlled substance), and 18 U.S.C. § 922(g) (felon in possession of a firearm). The second superseding indictment also charges another violation of 21 U.S.C. § 841 and another violation of 18 U.S.C. § 924(c)(1).

On October 27, 1994, this court entered a twenty-two page memorandum and order deciding certain motions and taking the balance of the motions under advisement. See United States v. Ailsworth, 867 F.Supp. 980 (D.Kan.1994).

This case comes before the court upon the following pretrial motions:

Joint motions:

1. Joint motion to dismiss 2nd superseding indictment on basis of vindictive prosecution (Dk. 332).

Motion by Undra P. Mock (represented by Jerold Berger):

1. Motion to join (Dk. 331).

Motions by Kenneth R. Torain (represented by James G. Chappas):

1. Motion to adopt previously filed pretrial motions (Dk. 334).

2. Motion to join (Dk. 335).

3. Supplemental motion to sever (Dk. 336).

4. Motion to quash and/or dismiss certain counts (Dk. 337).

Motion by Arnett Louise Rice (represented by Benjamin C. Wood):

1. Motion for continuance of trial date, for additional time to file motions and renewing previously filed motion for severance (Dk. 329).

Motion by Terence J. Douglas (represented by Alan Warner and Amy Bixler):

1. Motion to dismiss counts 2-24 of the second superseding indictment (Dk. 328).

Motions filed by George Stewart, Jr. (represented by Stephen W. Kessler):

1. Motion for bill of particulars (Dk. 322).

2. Supplemental motion for severance (Dk. 323).

3. Motion to strike surplusage from count 43 of the second superseding indictment (Dk. 324).

4. Motion to dismiss certain counts 2, 5, 8, 10, 13, 16, 17, 20, 21, 24, 25, 26, 29, 30, 31, 32, 33, 36, 39 & 43 from the second superseding indictment (Dk. 325).

5. Supplemental request for jury instructions (Dk. 327).¹

Motion by Calvin Lee Conway (represented by Jeannine D. Herron):

1. Motion to renew previous motions (Dk. 333).

The government has filed a consolidated response (Dk. 339).

On November 10, 1994, the court conducted a hearing on these pretrial motions. Having considered the briefs and arguments of counsel, and the applicable law, the court is now prepared to rule.

Motions to adopt previously filed pretrial motions (Dk. 334 and 333).

In these motions, the defendants wish to adopt or renew the motion previously filed. These motions are granted. The court considers all pretrial motions previously filed to be renewed and adopted for purposes of the second superseding indictment.

Motions to join (Dk. 331 and 335):

The defendants' motions to join are granted under the same conditions set forth in the court's August 24, 1994, memorandum and order. Counsel are again directed to section I.C. of the court's procedural guidelines.

Supplemental motions to sever (Dk. 336 and 323):

The defendants' supplemental motions to sever are denied based upon the same authorities contained in the court's August 24, 1994, memorandum and order. Nothing presented in the defendants' supplemental motions demonstrates that the court's previous rulings regarding the defendants' requests for severance filed regarding the superseding indictment returned on March 24, 1994, are not equally applicable.

Motion for continuance of trial date, for additional time to file motions and renewing previously filed motion for severance (Dk. 329) filed by Arnett Louise Rice:

On November 2, 1994, this court entered an order granting Mark L. Bennett's motion to withdraw as appointed counsel. The court granted the motion based upon its consideration of the "facts and circumstances of this case, as well as the arguments and statements of counsel demonstrating the unique circumstances of his request."² On that same day, the court entered an order appointing Benjamin C. Wood to represent Rice in this case.

On November 4, 1994, Wood, on behalf of Rice, filed this motion which requested a continuance of trial date, additional time to file motions, and renews the previously filed motion for severance. In the memorandum in support of her motion, Rice recounts the efforts made by Wood since his entry of appearance. In short, based upon the volume and complexity of the task, Wood will not be able to adequately prepare for trial on November 28, 1994.

The government does not oppose Rice's motion for additional time to file additional motions. The government opposes Rice's motion for continuance of trial as well as her motion for severance. The government argues that if the court is inclined to grant Rice's motion for continuance, a continuance of trial as to all defendants is the appropriate course. The government contends that a continuance will not violate the defendants' respective rights to a speedy trial and that a continuance as to all defendants will save it the time and resources necessary to present the same evidence in two separate trials.

Legal Standards

Under proper circumstances, the court may grant severance even if joinder under Fed.R.Crim.P. 8 is appropriate. United States v. Hollis, 971 F.2d 1441, 1456 (10th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1580, 123 L.Ed.2d 148 (1993). Fed. R.Crim.P. 14 provides in pertinent part:

If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance or provide whatever other relief justice requires ...

"In determining the merits of a motion for severance, the court must weigh the prejudice to a particular defendant caused by the joinder against the important considerations of economy and expedition in judicial interests." United States v. Mabry, 809 F.2d 671, 681 (10th Cir.), cert. denied, 484 U.S. 874, 108 S.Ct. 33, 98 L.Ed.2d 164 (1987), and overruled on other grounds, Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). Severance is a matter of discretion, not of right, and the defendant bears a heavy burden of demonstrating prejudice to his case. Hollis, 971 F.2d at 1456. "The Supreme Court has emphasized that trial courts have `a continuing duty at all stages of the trial to grant a severance if prejudice does appear.'" United States v. Peveto, 881 F.2d 844, 857 (10th Cir.), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989) (quoting Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960)).

Speedy Trial Rights

18 U.S.C. § 3161(h) provides in pertinent part:

The following period of delay shall be excluded in computing the time within an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence:

. . . . .

(7) A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted.

In determining whether it is reasonable to apply delay of one co-defendant to other codefendants, the court must weigh all of the relevant circumstances. United States v. Tranakos, 911 F.2d 1422, 1426 (10th Cir. 1990); see United States v. Mobile Materials, 871 F.2d 902, 911-912 (10th Cir.1989), cert. denied, Philpot v....