USA v. Chantharath et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
VIENGXAY CHANTHARATH,
a/k/a “OG,” and
PATRICIO GUZMAN-ORTIZ,
Defendants.
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CR. 10-40004-01, -06-KES
ORDER DENYING
DEFENDANTS’ MOTIONS TO
SEVER
Defendants, Viengxay Chantharath and Patricio Guzman-Ortiz,
separately moved to vacate the court’s order granting a continuance and to
sever their cases from their codefendants for trial. Dockets 484, 485, 520. The
court denied the motions to vacate the order granting a continuance and
reserved ruling on the motions to sever. Dockets 493, 494. The government
resists both Guzman-Ortiz’s and Chantharath’s motions to sever. The
motions are denied.
BACKGROUND
The pertinent facts to this order are as follows: The original indictment
in this case, dated January 5, 2010, charged Chantharath and Vang
Somsawat with conspiracy to distribute methamphetamine. Docket 1. A
second superseding indictment, dated April 7, 2010, added Guzman-Ortiz,
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Jeffrey Arthur Kriz, Mario Maldonado, and Aurelio Angel Solorio as
codefendants in the same conspiracy. Docket 54.
The third superseding indictment, dated May 4, 2010, added Jason
Leach, Daniel Navarrette, and Kevin Boxdorfer as additional codefendants in
the conspiracy. Docket 111. The fourth superseding indictment, dated
August 3, 2010, added Bruce Ross as a codefendant in the conspiracy.
Docket 194.
The fifth superseding indictment, dated March 2, 2011, added Rosendo
Garcia-Navarro and one person not yet arrested as codefendants in the
conspiracy. Docket 366. The sixth superseding indictment, dated June 7,
2011, added as codefendants in the same conspiracy Felicia Ann Omara,
Michelle Cherie Feiss, Rodney James Newcomb, and two persons who have
not had their initial appearances in South Dakota. Docket 408. The seventh
superseding indictment, dated September 7, 2011, did not charge any new
defendants with conspiracy but did contain a forfeiture allegation against
Garcia-Navarro. Docket 98.
Many of the codefendants charged in this conspiracy have already
pleaded guilty and some have already been sentenced. The remaining
codefendants are Chantharath, Guzman-Ortiz, Garcia-Navarro, Newcomb,
and the three persons not yet arrested. This case is currently scheduled for a
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jury trial to begin on Tuesday, October 25, 2011, with codefendants
Chantharath, Guzman-Ortiz, Garcia-Navarro, and Newcomb.
DISCUSSION
In determining whether a defendant is entitled to a separate trial from
his codefendants, the court must decide (1) whether joinder was proper under
Federal Rule of Criminal Procedure 8, and (2) whether severance is proper
under Rule 14. See, e.g., United States v. Payton, 636 F.3d 1027, 1036-37 (8th
Cir. 2011) (analyzing first whether joinder was proper under Rule 8 and then
whether severance was proper under Rule 14); United States v. Wadena, 152
F.3d 831, 848 (8th Cir. 1998) (same); United States v. Andrade, 788 F.2d 521,
529 (8th Cir. 1986) (same).
Federal Rule of Criminal Procedure 8(b) states that an “indictment . . .
may charge 2 or more defendants 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.” The propriety of a Rule 8(b) joinder must
appear on the face of the indictment. Wadena, 152 F.3d at 848; Andrade, 788
F.2d at 529.
“Generally, the ‘same series of acts or transactions’ means acts or
transactions that are pursuant to a common plan or a common scheme.”
Wadena, 152 F.3d at 848 (citing United States v. Jones, 880 F.2d 55, 61 (8th
Cir. 1989)). There must “be some common activity involving all the
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defendants which embraces all the charged offenses, but it is not necessary
that each defendant have participated in each act or transaction of the
series.” Andrade, 788 F.2d at 529 (citing United States v. Wofford, 562 F.2d
582, 585 (8th Cir. 1977)). The prerequisites for Rule 8(b) joinder are liberally
construed. United States v. Gravatt, 280 F.3d 1189, 1191 (8th Cir. 2002)
(citing Jones, 880 F.2d at 62).
“ ‘In general, persons charged in a conspiracy or jointly indicted on
similar evidence from the same or related events should be tried together.’ ”
United States v. Donnell, 596 F.3d 913, 923 (8th Cir. 2010) (quoting Jones,
880 F.2d at 63); see also Andrade, 788 F.2d at 529 (reasoning that “persons
charged with having been involved in a single conspiracy should ordinarily be
tried together.” (citing United States v. Rochon, 575 F.2d 191, 197 (8th Cir.
1978))). Thus, if the indictment charges a conspiracy and alleges the
existence of a scheme or links the codefendants together in a common plan,
then joinder is usually appropriate. See, e.g., Donnell, 596 F.3d at 923 (“Thus,
the various defendants, all of whom were alleged to be members of the same
overarching conspiracy, were properly joined.”); United States v. Jenkins-
Watts, 574 F.3d 950, 967 (8th Cir. 2009) (finding that joinder of codefendants
in a conspiracy was proper even though some of the defendants did not
participate in every stage of the conspiracy).
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In the seventh superseding indictment, the grand jury charged that the
codefendants conspired together to distribute 500 grams or more of a mixture
or substance containing methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), 846. Docket 498. The single count in the seventh superseding1
indictment charges that the co-defendants “did knowingly and intentionally
combine, conspire, confederate, and agree together” to distribute
methamphetamine. Docket 498 at 2. Rule 8(b)’s requirement of the “same
series of acts or transactions” is met here because, according to the face of
the indictment, each codefendant has been charged with the same, single
conspiracy. Thus, joinder is proper under Rule 8(b).
Even if joinder is proper under Rule 8(b), Rule 14 allows the court to
sever the joinder if it “appears to prejudice a defendant or the government
. . . .” Fed. R. Crim. P. 14(a). “ ‘Once defendants are properly joined under
Rule 8, there is a strong presumption for their joint trial.’ ” Jenkins-Watts,
574 F.3d at 967 (citing United States v. Crumley, 528 F.3d 1053, 1063 (8th
Cir. 2008)).
The seventh superseding indictment also contained a forfeiture1
allegation against Garcia-Navarro for currency and assets seized from a bank
account. Docket 498. The forfeiture allegation is not at issue in Guzman-Ortiz’s
and Chantharath’s motions to sever. While Guzman-Ortiz’s and Chantharath’s
motions to sever addressed the sixth superseding indictment, the court will
construe their motions to address the seventh superseding indictment, which
was filed after Guzman-Ortiz and Chantharath moved to sever, because the
conspiracy charge is identical in both indictments.
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“A court will permit severance only ‘upon a showing of real prejudice to
an individual defendant.’ ” Payton, 636 F.3d at 1037 (quoting United States v.
Sandstrom, 594 F.3d 634, 644 (8th Cir. 2010)); see also Wadena, 152 F.3d at
850 (reasoning that the district court retains discretion to determine a motion
to sever and is only reversed if the court abuses its discretion and that abuse“
‘resulted in severe prejudice.’ ” (quoting United States v. Crouch, 46 F.3d 871,
875 (8th Cir. 1995))). The defendant bears the burden to prove prejudice.
Andrade, 788 F.2d at 530.
“ ‘Severe prejudice occurs when a defendant is deprived of an
appreciable chance for an acquittal, a chance that [the defendant] would have
had in a severed trial.’ ” Wadena, 152 F.3d at 848 (alteration in original)
(quoting United States v. Koskela, 86 F.3d 122, 126 (8th Cir. 1996)). One way
to satisfy the real prejudice standard is for the defendant to show “ ‘that his
defense is irreconcilable with the defense of his codefendant or that the jury
will be unable to compartmentalize the evidence as it relates to separate
defendants.’ ” Payton, 636 F.3d at 1037 (quoting Sandstrom, 594 F.3d at 644).
“ ‘The defendant carries a heavy burden in making this showing.’ ” Id.
(quoting Sandstrom, 594 F.3d at 644).
I. Guzman-Ortiz
Guzman-Ortiz argues that he has antagonistic and mutually exclusive
defenses from those of his codefendants. Docket 486 at 4. “Mutually
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antagonistic defenses are not prejudicial per se.” Zafiro v. United States, 506
U.S. 534, 538 (1993) (reasoning that even if prejudice due to antagonistic
defenses is shown, Rule 14 does not necessarily require severance).
“ ‘Antagonistic defenses require severance only when there is a danger that
the jury will unjustifiably infer that this conflict alone demonstrates that both
are guilty.’ ” Sandstrom, 594 F.3d at 644 (emphasis in original) (quoting
United States v. Delpit, 94 F.3d 1134, 1143 (8th Cir. 1996)). Guzman-Ortiz
does not clarify how his defense would be either antagonistic or mutually
exclusive from that of any of his codefendants. A broad claim of antagonistic
or mutually exclusive defenses does not create a conflict that alone would
demonstrate Guzman-Ortiz and his codefendants are all guilty.
Guzman-Ortiz also contends that severance is necessary because of a
spillover of evidence that is unrelated to Guzman-Ortiz, including evidence of
“violent gangs, guns, dope for sex, threats to assault or kill people, and other
criminal acts which have nothing to do with Patricio.” Docket 486 at 5.
“Severance, however, is not required merely because the evidence may have
been more damaging against one [defendant] than the others, or because
evidence established that a conspirator was not involved during the entire
duration of the charged conspiracy.” Frazier, 280 F.3d at 844 (internal
quotation omitted). The court can contain spillover evidence by instructing
“the jury to view the evidence presented against one defendant as applicable
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to only that defendant.” Id. (citing United States v. Moore, 149 F.3d 773, 778
(8th Cir. 1998)); see also Andrade, 788 F.2d at 530 (reasoning that if each
codefendant’s role is distinct and the court provides cautionary instructions
on the evidence such that the jury could compartmentalize the evidence
against each defendant on each count, then severance is unnecessary (citing
United States v. Robinson, 774 F.2d 261, 266 (8th Cir. 1985))). Because the
severance and joinder rules are “designed to promote economy and efficiency
and to avoid a multiplicity of trials . . . only in an unusual case will the
prejudice resulting from a joint trial be substantial enough to outweigh the
general efficiency of joinder.” United States v. Clay, 579 F.3d 919, 927 (8th
Cir. 2009) (internal quotations omitted).
Here, all defendants in the seventh superseding indictment have been
charged with the same offense, conspiracy to distribute methamphetamine. If
the court accepted Guzman-Ortiz’s argument, then the court would have
multiple trials on the same essential underlying conduct. While some of the
evidence admitted during trial may not pertain to Guzman-Ortiz, this is not
an “unusual case” for a large drug conspiracy. The court can adequately
protect Guzman-Ortiz from any prejudice that the spillover evidence would
have on him through cautionary or limiting jury instructions.
Guzman-Ortiz, citing United States v. Baker, 98 F.3d 330 (8th Cir.
1996), United States v. Davidson, 936 F.2d 856 (6th Cir. 1991), and United
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States v. Breinig, 70 F.3d 850 (6th Cir. 1995), argues that “[t]here are cases in
which severance has been required because of spillover of evidence.” Docket
486 at 5. Due to their factual differences, however, the court finds these cases
unpersuasive. See Davidson, 936 F.2d at 861 (finding that, in a narcotics
conspiracy case, the district court should have severed an unrelated tax
charge against one of the codefendants who was tried in absentia because the
other codefendant, who was not charged with the tax offense, suffered
prejudice from the tax evidence); Breinig, 70 F.3d at 852 (reasoning that
severance of husband and wife codefendants was required when the wife’s
defense was diminished capacity and required the introduction of highly
prejudicial evidence of the husband’s bad character throughout their 24-year
marriage); Baker, 98 F.3d at 335 (reasoning that severance was required
where the defendant was not charged with conspiracy but evidence of a
conspiracy between others, in which the defendant played no role, was
admitted). As shown by these cases, the court only utilizes the spillover
evidence rule in “an exceptional case.” Breinig, 70 F.3d at 853.
The Eighth Circuit has repeatedly held that spillover evidence in a
conspiracy case is not usually grounds to sever codefendants’ trials. See, e.g.,
Frazier, 280 F.3d at 843-44 (reasoning that severance was not appropriate in
a conspiracy case that had spillover evidence of one defendant who was
charged with numerous other offenses than his codefendants); Adams, 401
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F.3d at 894-95 (reasoning that severance was unwarranted for co-
conspirators because any concern about spillover was minimized through the
district court’s instructions); Moore, 149 F.3d at 778 (reasoning that one
defendant’s “more limited role in the conspiracy and the disparity in the
evidence” between two defendants did not warrant severance). Any possible
prejudice resulting from a potential spillover of evidence can be controlled
through limiting instructions and, thus, severance is inappropriate on this
ground.
Guzman-Ortiz, citing United States v. Douglass, 780 F.2d 1472, 1478
(9th Cir. 1986), further argues that denying severance would violate his Sixth
Amendment right to cross-examine Maldonado, Chantharath, and Feiss,
present his individual defense, and properly instruct the jury. He also
contends that the combination of these factors would deny him his Fifth
Amendment right to due process. After Guzman-Ortiz moved to sever,
Maldonado and Feiss pleaded guilty. The court will consider Guzman-Ortiz’s
arguments regarding Chantharath, however.
In Douglass, the Ninth Circuit held that the district court did not abuse
its discretion in denying the motion to sever and reasoned that “[i]t is clear
that much of the evidence introduced at trial only against Miller did not
reflect favorably upon the appellants. Nonetheless, the trial judge carefully
and repeatedly cautioned the jury about the limited admissibility of such
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material.” 780 F.2d at 1479. Douglass does not stand for the proposition that
a joint trial for a drug conspiracy would violate a defendant’s Fifth or Sixth
Amendment rights.
Guzman-Ortiz has not met his burden to demonstrate that a joint trial
would prejudice his right to a fair trial. Thus, Guzman-Ortiz’s motion to sever
(Docket 485) and his renewed motion to sever (Docket 520) are denied.
II. Chantharath’s Motion to Sever
Chantharath moves to sever and argues that his defense is
irreconcilable with his codefendants’ defenses. Chantharath believes that his
codefendants “will point to each other as either the sources of the
methamphetamine or the leaders of the alleged conspiracy.” Docket 484 at 2.
Contrastingly, “Chantharath will assert that he had no involvement in the
alleged conspiracy.” Docket 484 at 2.
Severance on grounds of mutually antagonistic defenses is only
appropriate if the jury will unjustifiably infer that the conflict between the
defenses demonstrates that the codefendants are guilty. Zafiro, 506 U.S. at
538; Sandstrom, 594 F.3d at 644. Assuming that Chantharath is correct that
his codefendants’ defenses will consist of finger-pointing, Chantharath’s
defense that he had no involvement with the conspiracy is not mutually
antagonistic to his codefendants’ defenses. Additionally, Chantharath alleges
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no danger, and the court finds no danger, that the differing defenses will
demonstrate that Chantharath and his codefendants are guilty.
Chantharath further contends that the discovery materials from the
fifth and sixth superseding indictments “even if taken at its face value, shows
no connection between Chantharath and the most-recent co-defendants.”
Docket 484 at 3. Chantharath argues that the jury will be unable to
“compartmentalize the highly prejudicial and inflammatory evidence against
the co-defendants and will lump Chantharath together with the other co-
defendants, without specific evidence pointing to him.” Docket 484 at 3.
Chantharath moved to sever before numerous defendants pleaded
guilty. The jury trial scheduled for October 25 is proceeding only with
Chantharath, Guzman-Ortiz, Garcia-Navarro, and Newcomb. While Garcia-
Navarro and Newcomb were added as codefendants in the fifth and sixth
superseding indictments, Guzman-Ortiz was added as a codefendant in the
second superseding indictment. Because this case is a conspiracy, not only
can the court try all codefendants in one case even if some evidence does not
pertain to each codefendant, see Frazier, 280 F.3d at 843-44; Adams, 401
F.3d at 894-95; Moore, 149 F.3d at 778, but a joint trial is preferred in this
situation. See Donnell, 596 F.3d at 923; Andrade, 788 F.2d at 529. The court
can protect Chantharath against any potential jury confusion through jury
instructions. See Frazier, 280 F.3d at 844; Andrade, 788 F.2d at 530.
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Chantharath has not met his burden to prove that the joinder of his
trial with that of the other three remaining codefendants would prejudice
him. Thus, Chantharath’s motion to sever (Docket 484) is denied.
Accordingly, it is
ORDERED that defendant Guzman-Ortiz’s motion to sever (Docket 485)
and his renewed motion to sever (Docket 520) are denied.
IT IS FURTHER ORDERED that defendant Chantharath’s motion to
sever (Docket 484) is denied.
Dated October 4, 2011.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE
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