USA v. Middleton et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
UNITED STATES OF AMERICA 	)
)
v. 	) 	CRIMINAL NO. 13-0161-WS
)
RAY GENE MIDDLETON, et al., 	)
)
Defendants. 	)
ORDER
This matter comes before the Court on the Government’s Motion to Sever Defendant
Boutwell (doc. 132).1
Defendant Shannon Rebekah Boutwell is one of eight defendants indicted together in this
matter on certain controlled substance offenses. Of relevance to the instant Motion, Count One
of the Indictment charges all eight defendants with having knowingly and willfully conspired,
during the time frame of early 2009 through July 24, 2013, to manufacture more than 50 grams
of a methamphetamine mixture, in violation of 21 U.S.C. § 846. Similarly, Count Two charges
all eight defendants with having knowingly and willfully conspired, during the same time frame,
to unlawfully possess pseudoephedrine with knowledge and reason to believe that it would be
used to manufacture a controlled substance, all in violation of 21 U.S.C. § 846. The Indictment
also includes eight substantive counts, one directed at each defendant, for possession of
pseudoephedrine with knowledge that it would be used to manufacture a controlled substance.
Seven named defendants have been arrested on these charges at various times, with
multiple defendants being taken into custody in late August 2013 and one defendant apparently
remaining at large today. Defendant Boutwell was arrested on September 30, 2013, and her trial
has been set for December 2013. By contrast, several co-defendants who were arrested earlier
are set for trial in the November 2013 term.
1 By Order (doc. 138) dated October 3, 2013, Magistrate Judge Nelson directed
defendants to respond to the Motion to Sever by no later than October 9, 2013. That deadline
has now expired, and only defendant Boutwell has responded. Boutwell’s Response (doc. 145)
reflects that she has no objection to the Motion to Sever.
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The Government now requests that the case against Boutwell be severed from that as to
the other defendants, including the six defendants who have been taken into custody. As
grounds for this request, the Government states that its lead counsel, Gloria A. Bedwell, recently
became aware of a potential conflict of interest, personal to her, that would preclude her from
proceeding with the Boutwell prosecution. Counsel indicates that the subject conflict would not
impair her ability to represent the Government in the prosecution of the six arrested co-
defendants in this matter; rather, the scope of the conflict is confined to the prosecution of
defendant Boutwell. On that basis, Attorney Bedwell must recuse herself from the Boutwell
prosecution, and another Assistant U.S. Attorney, Maria Murphy, will handle that matter.
Meanwhile, Attorney Bedwell wishes to continue as lead counsel with respect to the other six
defendants. This proposed staffing arrangement to accommodate Attorney Bedwell’s conflict
would be problematic (to say the least) if all seven defendants were tried together. In recognition
of that fact, the Government now requests that the case against defendant Boutwell be severed
from the case against the remaining defendants, such that Attorney Bedwell will prosecute the
latter while Attorney Murphy prosecutes the former.
Case law is legion for the proposition that “[j]oint trials play a vital role in the criminal
justice system and serve important interests: they reduce the risk of inconsistent verdicts and the
unfairness inherent in serial trials, lighten the burden on victims and witnesses, increase
efficiency, and conserve scarce judicial resources.” United States v. Lopez, 649 F.3d 1222, 1233
(11th Cir. 2011); see also Puiatti v. McNeil, 626 F.3d 1283, 1309 (11th Cir. 2010) (“Joint trials
have long been a common and preferred procedure in both federal and state courts.”). In light of
these important policy considerations, it comes as no surprise that “in conspiracy cases … the
refrain is that defendants charged with a common conspiracy should be tried together.” Lopez,
649 F.3d at 1235 (citation and internal quotation marks omitted); see also United States v.
Browne, 505 F.3d 1229, 1268 (11th Cir. 2007) (“It is well settled that defendants who are
indicted together are usually tried together. … This is particularly true in conspiracy cases.”)
(citations omitted).
Notwithstanding the strong preference for jointly indicted co-conspirators to be tried
together in joint trials, the Federal Rules of Criminal Procedure do make allowance for severance
of defendants’ trials “[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.” Rule 14(a),
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Fed.R.Crim.P. The Rule 14 severance remedy is quite narrow in application; indeed, the
Supreme Court has cautioned that “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.”
Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Indeed,
“Rule 14 does not require severance even if prejudice is shown; rather, it leaves the tailoring of
the relief to be granted, if any, to the district court’s sound discretion.” Id. at 538-39; see also
Lopez, 649 F.3d at 1234 (because of presumption favoring joint trials of conspiracy cases, “[t]he
exceptional circumstances justifying a deviation from the rule … are few and far between,” and
party seeking severance must carry “heavy burden” of showing “compelling prejudice,” such
that joint trial “would actually prejudice the defendant and … a severance is the only proper
remedy”); United States v. Baker, 432 F.3d 1189, 1237 (11th Cir. 2005) (“[s]everance is justified
as a remedy only if the prejudice flowing from a joint trial is clearly beyond the curative powers
of” any instructions the trial court might give); United States v. Al-Esawi, 560 F.3d 888, 891 (8th
Cir. 2009) (“Only in an unusual case will the prejudice resulting from a joint trial be substantial
enough to outweigh the general efficiency of joinder.”).
Although defendants file the overwhelming majority of Rule 14 severance motions,
federal courts have imposed a similarly rigorous burden on the Government in contexts where it
has sought severance. See, e.g., United States v. Clay, 579 F.3d 919, 928 (8th Cir. 2009)
(“Regardless of which party seeks severance – the government or one or more of the defendants
– the policy preference for joinder requires the district court to find prejudice to the moving party
should the motion not be granted.”); United States v. Stein, 497 F. Supp.2d 565, 568 (S.D.N.Y.
2007) (“[T]he government is in a very poor position to request separate trials because it was in
the controlling position to determine how the case initially was charged. Certainly in the absence
of a specific showing of prejudice to the government, and perhaps even then, the government is
not entitled to a severance.”) (internal quotation marks and footnote omitted); United States v.
Fregoso-Bonilla, 494 F. Supp.2d 1014, 1016 (E.D. Wis. 2007) (“Although it is almost always a
defendant who moves for severance, Rule 14 also permits the government to seek relief if joinder
results in prejudice.”); see generally United States v. McGregor, 840 F. Supp.2d 1281, 1285
(M.D. Ala. 2011) (observing that “some courts have ruled that the government should be held to
a higher standard when seeking a severance”).
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Here, the Government has not made the requisite showing of prejudice under Rule 14,
and has not otherwise overcome the strong public interest in having persons jointly indicted as
alleged co-conspirators tried together. To be sure, the Government has requested that Boutwell
be severed from her co-defendants to facilitate Attorney Bedwell’s desire to continue to
prosecute the co-defendants even though a conflict prevents her from serving as lead counsel
with respect to the Boutwell prosecution. But the Government has identified nothing other than
administrative convenience and staffing preference to support this request. There is no reason to
think that, for example, Attorney Murphy or someone else in the U.S. Attorney’s Office is
incapable of stepping in to prosecute this action in its entirety. Although the Government has not
alleged it, the Court has no doubt that Attorney Bedwell has invested considerable time and
effort into investigating, indicting and preparing this case for trial. In the absence of severance,
Attorney Bedwell may be cut off from further involvement in this case. Nonetheless, the
Government has not shown that it would sustain prejudice if it were forced to reassign this action
in its entirety to another Assistant United States Attorney, as opposed to merely reassigning the
slice that pertains to Boutwell. Furthermore, even if the Government had shown prejudice, the
Court would exercise its discretion under Rule 14 to deny this request for severance given the
strong public policy considerations favoring a joint trial in this conspiracy case and the obvious
inefficiencies inherent in severance, as compared to the weak showing of harm that may befall
the Government in the absence of severance. This is simply not the sort of rare, unusual, or
exceptional case in which severance under Rule 14 is an appropriate remedy.
For all of the foregoing reasons, the Government’s Motion to Sever Defendant Boutwell
(doc. 132) is denied.
DONE and ORDERED this 10th day of October, 2013.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
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