USA v. Quinones-Davila et al

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
UNITED STATES OF AMERICA )
)
v. )
)
JOSE R. HODGE, ) Criminal No. 2016-0009
)
Defendant. )
__________________________________________)
Attorneys:
Alphonso G. Andrews, Jr., Esq.,
St. Croix, U.S.V.I.
For the United States
Renee D. Dowling, Esq.,
St. Croix, U.S.V.I.
For Defendant Jose R. Hodge
MEMORANDUM OPINION
Lewis, Chief Judge
THIS MATTER comes before the Court on Defendant Jose Hodge’s Motion to Sever, filed
on May 8, 2017. (Dkt. No. 797). In his Motion, Hodge seeks to sever Count 2 of the Superseding
Indictment from the remaining counts included therein. For the reasons that follow, the Court will
deny the Motion to Sever.1
I. PROCEDURAL HISTORY
In May 2016, the Government filed a sealed Indictment against Hodge and other
Defendants, charging Conspiracy to Possess Controlled Substance (cocaine powder and
marijuana) with Intent to Distribute, Attempted Possession of Cocaine with Intent to Distribute,
1 In a telephonic status conference on May 12, 2017, the Court advised the parties that it would be
denying the Motion to Sever with the Memorandum Opinion to follow.
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and Possession of Cocaine with Attempt to Distribute. (Dkt. No. 1).2 Count 2 of the Indictment
also charged Hodge with Bulk Cash Smuggling. (Id.). On August 24, 2016, the Government filed
the First Redacted Superseding Indictment (“Superseding Indictment”), which unsealed the entire
indictment except references to one Defendant who was not yet arrested. (Dkt. No. 181). Following
the arrest of the final Defendant, the remaining portions of the Indictment were unsealed in April
2017. (Dkt. Nos. 661, 665).
Count 1 of the Superseding Indictment—Conspiracy to Possess Controlled Substance With
Intent to Distribute—set forth a number of “Events” which described alleged acts in furtherance
of the conspiracy. (Dkt. No. 181-1). Pertinent to the instant Motion, Event No. 1(a) of Count 1—
March 2012 Seizure of $83,519 at Henry Rohlsen Airport—alleged the following:
On March 25, 2012, HODGE and LACIEN-SANTIAGO [sic] attempted to travel
from St. Croix, Virgin Islands to St. Martin through Henry Rohlsen Airport. During
inspection, law enforcement discovered and seized a total of $83,519 concealed on
their persons and inside of LACEN-SANTIAGO’s luggage.
(Dkt. No. 181-1 at 5). Count 2 of the Superseding Indictment—Bulk Cash Smuggling—alleged
the following:
On or about March 25, 2012, at St. Croix, in the District of the Virgin Islands, the
defendant, JOSE R. HODGE and RAMON LACEN-SANTIAGO while aiding and
abetting one another, did, with intent to evade a currency reporting requirement,
knowingly conceal more than $10,000.00 in United States currency on their person
and luggage and attempted to transport such currency from St. Croix, United States
Virgin Islands to a place outside the United States, that is, St. Martin[.]
(Id. at 10). Finally, Hodge was also charged in Counts 3 and 5 with Attempted Possession of
Cocaine with Intent to Distribute, and in Count 7 with Possession of Cocaine with Attempt to
Distribute. (Dkt. No. 181-1).
2 The May 2016 Indictment was preceded by a Complaint filed in November 2015 (Case No. 15-
cr-0042, Dkt. No. 1), and an Information filed in December 2015(Case No. 15-cr-0042, Dkt. No.
43).
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The deadline for motions in this case was August 31, 2016. (Dkt. No. 155). Trial
commenced on May 2, 2017 with jury selection. A jury was selected on May 4, 2017, and sworn
immediately before opening arguments began on the scheduled date of Monday, May 15, 2017.3
On May 8, 2017, Defendant Jose Hodge filed the instant Motion to Sever (Dkt. No. 797).
He argues that, pursuant to Fed. R. Crim. P. 8(a), Count 2, Bulk Cash Smuggling, “is not of the
same or similar character as the offenses charged in Counts 1, 3, 4, 5, 6, and 7. Nor is the offense
charged in Count 2 based on the same act or transaction as the offenses in all of the other counts
in this superseding indictment.” (Id. at 2). Accordingly, he contends that Count 2 is misjoined with
the rest of the Counts and therefore should be severed. (Id.) Hodge also claims that this misjoinder
of offenses will prejudice him because (1) “proof that he is guilty of one offense may be used to
convict him of a second offense, even though such proof would be inadmissible in a separate trial
for the second offense;” and (2) he “may wish to testify on his own behalf on one of the offense[s],
but not another, forcing him to choose the unwanted alternative of testifying as to both or testifying
as to neither.” (Id.). He specifies that he wishes to testify as to Count 2, but not to the remaining
counts.” (Id. at 3).
3 The Court stood in recess during the week of May 8, 2017 to accommodate counsel for Defendant
Gutierrez-Calderon, who had a scheduling conflict. On May 15, 2017, moments before the parties
were scheduled to deliver opening statements in the trial of this matter, the Government disclosed
for the first time approximately thirty-six documents and twenty-three audio recordings, which it
asserted were inadvertently withheld. During the resulting discussion regarding the new discovery,
counsel for Defendants informed the Court that they would need three days to review the new
discovery, and that they could not present opening statements prior to the review. In view of the
foregoing, the Court proceeded with the Government’s opening statements on May 15, 2017, but
continued further proceedings in the trial until Friday May 19, 2017. The Court subsequently
continued the trial until Monday, May 22, 2017, in response to Defendant Quinones-Davila’s
contention that more time was needed to recast the defense case in light of the Government’s
untimely disclosure.
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On May 8, 2017, Defendant Hodge also filed a Motion for Extension of Time to File
Motion to Sever Nunc Pro Tunc. Hodge’s counsel, Renee D. Dowling, Esq., included a Declaration
in the Motion for Extension of Time in which she averred that, on August 23, 2016, the
Government filed a Superseding Indictment under seal (Dkt. No. 190); that the Superseding
Indictment “remained under seal and unavailable to Jose Hodge for a period of almost eight
months”; that on the eve of trial, the Government moved to unseal the Superseding Indictment;
that the identity of the individual defendants alleged to have been involved in the separate counts
were then revealed, along with additional discovery documents the Government released just
before trial; and that consequently, the Government’s theory of prosecution was finally revealed
and “it became apparent that there was no nexus between Count 2 and the remaining counts of the
Superseding Indictment.” (Dkt. No. 799-2). Attorney Dowling concluded that the “need for this
motion arose due to the late unveiling of the charging document (Superseding Indictment) in this
matter.” (Id.) This same position as to the reason for the delay in filing the Motion to Sever was
reiterated at the May 10th hearing.
In its Response to the Motion to Sever, the Government asserts that Count 2 is properly
joined, as the conduct alleged in Count 2 is also alleged as conduct committed in furtherance of
the conspiracy in Count 1 and, therefore, Counts 1 and 2 are connected with, and constitute parts
of, a common scheme or plan. (Dkt. No. 812 at 3). The Government adds that Hodge’s possession
of a large amount of money is consistent with its theory that Hodge acquired and distributed drugs
for financial gain, and thus both counts constitute part of Hodge’s common scheme or plan. (Id. at
3-4). The Government also claims that Count 2 is of a similar character as Counts 1, 3, 5 and 7
because they all involve covert behavior. Accordingly, the Government argues that the Counts are
not misjoined. (Id. at 4). Further, the Government maintains that Hodge has not met the standard
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of substantial prejudice to warrant severance, id. at 5 (citing United States v. Green, 563 F. App’x
913, 917 (3d Cir. 2014)), because the jury can compartmentalize the evidence on Count 2 from the
other counts, and any residual prejudice could be avoided by appropriate jury instructions. (Id.)
During the May 10, 2017 hearing on the Motion, Hodge’s counsel explained that Hodge
desires to testify on Count 2 as to the source of the funds; the reason why he carried the money
with him; the lawful purpose of his travel; and the amount of money that he was carrying. The
Government responded that although Hodge asserts that he wants to testify concerning Count 2,
his proposed testimony actually concerns Count 1. In any event, the Government maintained that
Hodge has not made a convincing showing that he has “important testimony” to give on Count 2,
and a “strong reason to refrain from testifying” on the conspiracy count (quoting Baker v. United
States, 401 F.2d 958, 977 (D.C. Cir. 1968)). Accordingly, Hodge has not demonstrated that his
claim of prejudice is "genuine". (Id.).
II. DISCUSSION
A. Procedural Issue: Timeliness
The Court will deny the Motion to Sever on two grounds. First, the Motion is untimely.
Fed. R. Crim. P. 12(b)(3)(D) provides that motions to sever counts or defendants must be made
before trial; Rule 12(c)(1) provides that the court may set deadlines for such pretrial motions; and
Rule 12(c)(3) provides that, if a party does not meet the deadline for a Rule 12(b)(3)(D) motion, it
is untimely, although a court may consider the request if the party shows “good cause.”
In this case, August 31, 2016 was the pretrial motions deadline. (Dkt. No. 155). However,
the Motion to Sever was not filed until May 8, 2017—over eight months after the motions deadline,
and after the jury in this case had been selected. Thus, the motion is untimely.
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Notwithstanding its untimeliness, a court may address the motion if the moving party
shows “good cause” for the delay. Fed. R. Crim. P. 12(c)(3). Counsel’s explanation for the late
filing is that it was only after the Superseding Indictment was unsealed on the eve of trial— which
coincided with her receipt of certain discovery from the Government in March and April 2017—
that she determined that there was no nexus between Count 2 and the other counts, and thus
perceived the need to file the Motion to Sever.
This explanation does not constitute good cause and does not excuse counsel’s untimely
filing. The only information that was excluded from the First Redacted Superseding Indictment
filed on August 24, 2016 was the name of one co-defendant who was not yet arrested. All the other
information in that Indictment—including the counts in which Hodge was named—was contained
not only in the First Redacted Superseding Indictment, but also in the original Indictment filed in
May 2016. Thus, the April 2017 unsealing of the Indictment to reveal the remaining co-defendant’s
name provided no more new information to Hodge than had been available to him from the initial
Indictment filed almost one year earlier. Further, counsel’s explanation that it was only when the
Government provided discovery in March and April 2017 that its theory of prosecution was
revealed is exceedingly general and unhelpful. Counsel does not identify any particular discovery
that suddenly elucidated the Government’s theory at that late date, and why it had been impossible
to discern the Government’s theory before then. Indeed, the original and Superseding Indictment,
which included specific events upon which the Government would rely in proving its case, appears
to highlight the particulars of the Government’s theory of the case.
In view of the foregoing, the Court finds that counsel has not provided good cause for filing
the Motion to Sever over eight months after the motions deadline had expired and after the jury in
this case had been selected. Accordingly, the Motion to Sever will be denied as untimely. See U.S.
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v. Rivera Calderon, 578 F.3d 78, 99 (1st Cir. 2009) (motion to sever charges or defendants must
be made before trial; failure to move for severance before deadline for filing pretrial motions
constitutes waiver, which may be excused only on a showing of good cause); United States v.
Gauthier, 248 F.3d 1138 n.2 (5th Cir. 2001) (finding motion to sever that was not filed until after
voir dire completed and jury had been selected was untimely and waived); United States v.
Gonzalez-Torres, 309 F.3d 594, 601 (9th Cir. 2002) (motion to sever filed on morning of trial
denied as untimely); United States v. Han Sa Yu, 2012 WL 3776486, at *2 (E.D. Va. Aug. 29,
2012) (noting that “it appears that motions to sever denied on timeliness grounds are often filed
on the eve of trial) (citing cases).
B. The Merits
Even if the Motion to Sever had been timely or good cause had been shown, the Court
would still deny the Motion on the merits.
Because Hodge’s Motion is premised on misjoinder of Count 2 pursuant to Fed. R. Crim.
P. 8, as well as prejudice under Fed. R. Crim. P. 14, the Court will address each issue in turn.
1. Joinder under Rule 8
Fed. R. Crim. P. 8, entitled “Joinder of Offenses or Defendants,” provides:
(a) Joinder of Offenses. The indictment or information may charge a defendant in
separate counts with 2 or more offenses if the offenses charged. . . are of the same
or similar character, or are based on the same act or transaction, or are connected
with or constitute parts of a common scheme or plan.
(b) Joinder of Defendants. The indictment or information 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 defendants may be charged in one or more counts together or separately. All
defendants need not be charged in each count.
In construing this rule, the Third Circuit “has followed the Supreme Court in recognizing
the ‘fundamental principle that the federal system prefers ‘joint trials of defendants who are
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indicted together [ ]’ because joint trials ‘promote efficiency and serve the interests of justice by
avoiding the scandal in inequity of inconsistent verdicts.’” United States v. Walker, 657 F.3d 160,
168-69 (3d Cir. 2011) (quoting United States v. Urban, 404 F.3d 754, 775 (3d Cir. 2005)).
In their memoranda of law, both Hodge and the Government applied Rule 8(a), governing
joinder of offenses, in their respective arguments. However, although Hodge asserts a misjoinder
of offenses, which would ostensibly fall under Rule 8(a), the Third Circuit has ruled that such an
argument should be assessed pursuant to the less permissive standard set forth in Rule 8(b). In
Walker, the Court reiterated its previous ruling that Rule 8(a) ‘“applies only to prosecutions
involving a single defendant’ and that in a multi-defendant case such as this, ‘the tests for joinder
of counts and defendants is merged in Rule 8(b).’” Id. at 169 (quoting United States v. Irizarry,
341 F.3d 273, 287 (3d Cir. 2003)). Accordingly, the Court will analyze Hodge’s misjoinder
challenge under Rule 8(b).
In order to satisfy Rule 8(b), “[i]t is not enough that defendants are involved in offenses of
the same or similar character; there must exist a transactional nexus in that the defendants must
have participated in ‘the same act or transaction, or in the same series of acts or transactions.’”
United States v. Jiminez, 513 F.3d 62, 82-83 (3d Cir. 2008) (quoting Fed. R. Crim. P. 8(b)).
It has long been the law in the Third Circuit that if an indictment contains a conspiracy
charge, as long as that charge has been “put forward in good faith, the combination of a conspiracy
count with counts charging acts in furtherance of the conspiracy will survive attack under Rule
8(b).” United States v. Somers, 496 F.2d 723, 730 (3d Cir. 1974); Green, 563 F. App’x at 916
(same); Walker, 657 F.3d at 169 (“Where charges leveled against only a single defendant ‘arose
directly’ from [his] participation in a common illicit enterprise which led to charges against that
defendant and co-defendants, we have held that all of the charges may be considered part of the
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same series of acts, rendering joinder proper under Rule 8(b)” (citing United States v. Riley, 621
F.3d 312, 334 (3d Cir. 2010)).
Hodge has not alleged that the Government put forward the conspiracy count in bad faith.
In addition, Count 2, the bulk cash smuggling count, relies on the same underlying facts as Event
1(a) in charging Hodge with an overt act in furtherance of the conspiracy: that on March 25, 2012,
Hodge and Lacen-Santiago attempted to transport cash concealed on their person and luggage from
St. Croix to St. Martin. Under the Rule 8(b) standard, the Court finds that Count 2 and Event 1(a)
constitute “the same act or transaction.” Further, the Court finds that Hodge is charged with
participating in “the same series of acts or transactions constituting an offense or offenses,”
because both counts are explicitly linked, given that Hodge’s possession of large sums of money
which he allegedly attempted to conceal and take out of the country on March 25, 2012 underlies
both the Government’s theory that he engaged in a conspiracy to acquire and distribute drugs for
financial gain and the bulk cash smuggling count.
In that regard as well, the Court rejects Hodge’s argument, raised at the May 10, 2017
hearing, to the effect that Count 2 is not intrinsically intertwined with the conspiracy offense;
evidence on this charge is impermissible on the conspiracy counts pursuant to Federal Rule of
Evidence 404(b); and joinder of Count 2 is prejudicial. First, this argument does not relate to the
standard for joinder but rather to whether certain evidence is either intrinsic to the charge of
conspiracy or prejudicial bad act evidence that is inadmissible under Rules 404(b) and 403.
Second, as noted above, the Court finds that the facts underlying Count 2—a large sum of money
concealed in Hodge’s possession—also supports the conspiracy charge, because possession of
large sums of unexplained cash make it more likely that Hodge was conspiring to purchase a large
shipment of cocaine or was in possession of the proceeds from the sale of a large shipment of
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cocaine. United States v. Cooley, 131 F. App’x 881, 883 (3d Cir. 2005) (“A defendant’s access to
unexplained or unaccounted for wealth is strong circumstantial evidence of involvement in illegal
activity.”). Thus, Hodge's alleged possession of over $10,000 concealed on his person is intrinsic
evidence because it “directly proves the charged offense” and would “facilitate the commission of
the charged crime.” United States v. Green, 617 F.3d 233, 249 (3d Cir. 2010). Rule 404(b) is
therefore inapplicable. Id. at 248.4
Further, the evidence that Hodge possessed the cash in relation to Count 2 does not serve
to prejudice him on the conspiracy counts, as it survives the Rule 403 balancing test. Under Rule
403, a “court may exclude relevant evidence if its probative value is substantially outweighed by
a danger of ... [inter alia] unfair prejudice.” Fed. R. Evid. 403. Here, the probative value of Hodge’s
possession of over $10,000 of unexplained cash is high. See Cooley, 131 F. App’x at 883.
Regarding unfair prejudice in this context, the Court fails to see how possession of the cash unfairly
prejudices Hodge, as the possession of the cash in and of itself is not a crime—although concealing
it and attempting to take it out of the country is. Thus, the Court finds that the high probative value
of the alleged possession of the cash is not “substantially outweighed” by the danger of unfair
prejudice to Hodge.
4 In United States v. Nelson, 372 F. App’x 289 (3d Cir. 2010), the court held that six incidents
involving recovery of large sums of cash, firearms, and narcotics from the defendant were intrinsic
to the charged conspiracy and rejected the argument that the Government sought to introduce
“prior crimes and bad acts and to bootstrap its conspiracy allegation.” Id. at 292. The Court ruled,
“[a]s the Government correctly notes, evidence of cocaine possession and distribution, possession
of large amounts of cash and possession of firearms during the time period of an alleged drug
distribution conspiracy directly proved the charges. [The defendant’s] argument that the incidents
are not intrinsic evidence of the conspiracy because they were removed in time from the
substantive counts, is unpersuasive. These incidents, which involve possession of firearms,
narcotics and large sums of cash, directly bear on the conspiracy charge.” Id. at 292-93; see also
United States v. $506,641 in U.S. Currency, 1996 WL 396082, at *2 (N.D. Ill. July 11, 1996)
(“Several courts have held that the possession of a large amount of cash is strong evidence that the
cash is connected with drug activity.”) (citing cases).
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In sum, joinder is proper under Rule 8(b).
2. Severance under Rule 14
Hodge further argues that the Court should sever Count 2 pursuant to Fed. R. Crim. P. 14
as he would be prejudiced by the joinder of that count with the other counts in the Superseding
Indictment.
Fed. R. Crim. P. 14, entitled “Relief from Prejudicial Joinder,” provides in pertinent part:
(a) Relief. If 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).
“While Rule 8 requires severance where defendants were improperly joined, Rule 14
permits a district court ‘to sever properly joined defendants and order a separate trial where a
consolidated trial appears to prejudice the defendant.’” Walker, 657 F.3d at 170 (quoting United
States v. Davis, 397 F.3d 173, 182 n.7 (3d Cir. 2005)). A motion to sever under Rule 14 should be
granted “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 (1993).
A defendant bears a “heavy burden in gaining severance.” United States v. Quintero, 38
F.3d 1317, 1343 (3d Cir. 1994). The defendant must ‘“pinpoint clear and substantial prejudice
resulting in an unfair trial.”’ United States v. Riley, 621 F.3d 312, 335 (3d Cir. 2010) (quoting
United States v. McGlory, 968 F.2d 309, 340 (3d Cir. 1992)). The question of prejudice “hinges
upon ‘whether the jury will be able to compartmentalize the evidence as it relates to separate
[offenses] in view of its volume and limited admissibility.’” Walker, 657 F.3d at 170 (quoting
Davis, 397 F.3d at 182). Where additional charges against a defendant are ‘“relatively
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straightforward and discrete,”’ the Third Circuit has ‘“not doubt[ed] that the jury reasonably could
have been expected to compartmentalize the evidence. . . and actually did so.”’ Id. (quoting United
States v. Lore, 430 F.3d 190, 205 (3d Cir. 2005)). “Once a defendant has met his burden of
demonstrating prejudice, the Court may exercise its discretion to grant the motion to sever after
‘balanc[ing] the potential prejudice to the defendant against the advantages of joinder in terms of
judicial economy.’” United States v. Ranalli, 2014 WL 1514046, at *2 (M.D. Pa. Apr. 16, 2014)
(quoting United States v. Sandini, 888 F.2d 300, 305 (3d Cir. 1989)).
Hodge first asserts that proof that he is guilty of one offense may be used to convict him
of a second offense, even though that proof would be inadmissible if there was a separate trial for
the second offense. In other words, Hodge appears to be arguing that proof that he is guilty of the
conspiracy charge may be used to convict him of the bulk cash smuggling charge, or vice-versa.
Thus the bulk cash smuggling offense should be severed from the instant matter in order to prevent
the jury’s assessment of one charge from impermissibly bleeding over into its assessment of the
second charge.
In this case, although the two counts have a similar factual predicate, the elements of bulk
cash smuggling and conspiracy are different. The “essential elements of a drug distribution
conspiracy under 21 U.S.C. § 846 are: (1) a shared unity of purpose; (2) an intent to achieve a
common goal; and (3) an agreement to work together toward the goal.” United States v. Iglesias,
535 F.3d 150, 156 (3d Cir. 2008) (internal quotation marks omitted).5 In contrast, the essential
5 The Third Circuit Model Jury Instructions provide that the elements of conspiracy to possess
with intent to distribute controlled substances are: (1) that two or more persons agreed to possess
with the intent to distribute a controlled substance; (2) that defendant was a party to or member of
that agreement; and (3) that defendant joined the agreement or conspiracy knowing of its objectives
to possess with the intent to distribute a controlled substance and intending to join together with at
least one other alleged conspirator to achieve that objective; that is, that defendant and at least one
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elements of bulk cash smuggling under 31 U.S.C. § 5532(a) are: (1) intent to evade a currency
reporting requirement; (2) concealing more than $10,000 in currency or other monetary
instruments on one’s person, luggage, etc.; and (3) transporting or attempting to transport or
transfer such currency from the United States to a place outside the United States.6 These two
offenses share no element in common. The Court finds that the jury could reasonably be expected
to compartmentalize the evidence against Hodge as it relates to these two distinct offenses:
conspiracy and bulk cash smuggling. The Court therefore rejects Hodge’s first prejudice
argument.7
The Court rejects Hodge’s second prejudice argument as well. Hodge relied on Cross v.
United States, 335 F.2d 987 (D.C. Cir. 1964), for the proposition that, in a case where a defendant
is charged in two counts and wishes to testify at trial on only one count but not the other, the
joinder of the counts prejudices the defendant and severance should be granted. In Baker v. United
States, 401 F.2d 958 (D.C. Cir. 1968), the D.C. Circuit was confronted with the same argument
other alleged conspirator shared a unity of purpose, and the intent to achieve that objective. Third
Circuit Model Jury Instruction 6.21.846B.
6 The bulk cash smuggling statute provides: “Whoever, with the intent to evade a currency
reporting requirement under section 5316, knowingly conceals more than $10,000 in currency or
other monetary instruments on the person of such individual or in any conveyance, article of
luggage, merchandise, or other container, and transports or transfers or attempts to transport or
transfer such currency or monetary instruments from a place within the United States to a place
outside of the United States, or from a place outside the United States to a place within the United
States, shall be guilty of a currency smuggling offense and subject to punishment pursuant to
subsection (b).” 31 U.S.C. § 5332(a).
7 Moreover, the Court anticipates giving a jury instruction that each offense and each defendant
must be considered separately, and that the jury’s decision on any one defendant or any one
offense, whether guilty or not guilty, should not influence their decision on any other defendant or
any other offense. Courts presume that juries follow instructions, which are viewed as “persuasive
evidence that refusals to sever did not prejudice the defendant[ ].” Lore, 430 F.3d at 206 (internal
quotation marks omitted).
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Hodge makes here, based on that defendant’s reading of Cross. The Baker Court termed such a
reading of Cross “far too broad” and opined as follows:
The essence of our ruling in Cross was that, because of the unfavorable appearance of
testifying on one charge while remaining silent on another, and the consequent
pressure to testify as to all or none, the defendant may be confronted with a dilemma:
whether, by remaining silent, to lose the benefit of vital testimony on one count, rather
than risk the prejudice (as to either or both counts) that would result from testifying on
the other. . . . Thus, unless the ‘election’ referred to by appellant is to be regarded as
conclusive—and we think it should not be—no need for a severance exists until the
defendant makes a convincing showing that he has both important testimony to give
concerning one count and strong need to refrain from testifying on the other. In making
such a showing, it is essential that the defendant present enough information—
regarding the nature of the testimony he wishes to give on one count and his reasons
for not wishing to testify on the other—to satisfy the court that the claim of prejudice
is genuine and to enable it intelligently to weigh the considerations of ‘economy and
expedition in judicial administration’ against the defendant’s interest in having free
choice with respect to testifying.
Id. at 976-77 (internal quotation marks omitted). 8
At the May 10, 2017 hearing, counsel provided specifics concerning Hodge’s desire to
testify on Count 2 (bulk cash smuggling): Hodge wishes to explain the source of the funds he was
carrying; the reason why he carried his money around with him; the lawful purpose of his travel;
and the amount of money he was carrying (i.e., that it was less than $10,000).
Hodge has not met the necessary showing of prejudice. Three of the four topics about which
he wishes to testify (the source of the funds, the reason he was carrying them, and the lawful
purpose of his travel) are irrelevant to the bulk cash smuggling offense, and therefore are not
“important testimony” under Baker. The only relevant testimony Hodge proposes giving on the
bulk cash smuggling charge is that the money he was carrying was less than $10,000, which goes
to one of the elements of that charge. While that snippet of proposed testimony is certainly
8 The Third Circuit has cited Baker’s reasoning approvingly in United States v. Weber, 437 F.2d
327, 334 (3d Cir. 1970) (“The Cross case does not reach as far as Weber indicates,” quoting Baker).
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important, that is the end of Hodge’s proffer. He has made no showing of “the strong need he
would have to refrain from testifying” on the conspiracy charge. Baker, 401 F.2d at 977. In fact,
instead of showing a “strong need to refrain from testifying” on the conspiracy count, Hodge’s
proposed testimony suggests a strong need to testify on that count since two of the three remaining
points which Hodge wishes to offer—where the money came from and the reason Hodge was
carrying it—would conceivably go toward attempts to dispute the drug conspiracy charge.
Given the proffer, the Court finds that Hodge’s claim of prejudice is not “genuine” and that
considerations of judicial “economy and expedition” outweigh Hodge’s interest in having free
choice with respect to testifying. Accordingly, the Court will deny the Motion to Sever on the
merits as well. Baker, 401 F.2d at 977.
III. CONCLUSION
For the reasons set forth above, the Court will deny Hodge’s Motion to Sever. (Dkt. No.
797). An appropriate Order accompanies this Memorandum Opinion.
Date: May 22, 2017 _______/s/_______
WILMA A. LEWIS
Chief Judge
Case: 1:16-cr-00009-RAM-EAH Document #: 880 Filed: 05/22/17 Page 15 of 15