USA v. GROSS et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
UNITED STATES OF AMERICA, 	)
)
Plaintiff, 	)
)
v. 	) 	No. 1:25-cr-00170-TWP-MKK
)
AUSTIN GROSS, 	) 	-01
JASON LEWIS, 	) 	-02
ISAIAH WRIGHT, 	) 	-03
MAKAYLA HOCHSTETLER, 	) 	-04
JOSE SANCHEZ, 	) 	-05
RONTE MAJORS, 	) 	-06
JACOB BOBBITT, 	) 	-07
PHYLYDIA JACKSON, 	) 	-08
NATHAN DONLAN, 	) 	-09
JULIETTE GALLARDO ZAMORA, 	) 	-10
GAGE BUTLER, 	) 	-11
ALISHA SECREST, 	) 	-12
)
Defendants. 	)
ORDER DENYING DEFENDANT GROSS' MOTION TO SEVER DEFENDANTS FOR
PURPOSE OF PERMITTING EARLY TRIAL
This matter is before the Court on Defendant Austin Gross' ("Gross") Motion to Sever
Defendants for Purpose of Permitting Early Trial (Filing No. 315). Gross seeks to sever his trial
from his eleven codefendants. He argues that a joint trial would deny him a speedy trial and would
result in prejudice. For the following reasons, Gross' Motion to Sever is denied.
I. 	PROCEDURAL BACKGROUND
Gross, along with eleven co-defendants, is charged in a nine-count Second Superseding
Indictment (Filing No. 207). Gross is charged in each count; he is charged with nine co-defendants
in Count One (Conspiracy to Possess with Intent to Distribute and to Distribute Controlled
Substances); he is charged with three co-defendants in Count Seven (Conspiracy to Launder
Monetary Instruments); and he is charged with one co-defendant in Counts Eight and Nine each
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(Use of a Communication Facility to Facilitate Drug Trafficking). Gross is the sole defendant in
the remaining five counts, all of which are death-penalty-eligible: Count Two (Continuing
Criminal Enterprise), Count Three (Tampering with a Witness), and Counts Four, Five, and Six
(Causing Death by Using a Firearm During and in Relation to a Crime of Violence).
On August 29, 2025, the Government moved to set a trial date no earlier than September
2026 and to exclude the delay from the computation of the Speedy Trial Act (Filing No. 66). No
responses or oppositions were filed by any defendant. Because of the breadth and extent of the
discovery (which thus far has resulted in roughly eight terabytes of discovery), as well as the
complexity of the case (which involves five separate death-penalty-eligible charges), the Court
granted the Government's unopposed motion, designated the case complex, and issued an Order
finding good cause to schedule trial for October 19, 2026 (Filing No. 114). The Court also declared
the delay attributable to the October 2026 trial date excludable from the computations of time
pursuant to the provisions of the Speedy Trial Act. Id. at 2.
In November 2025, Gross' current counsel entered their appearances (Filing No. 277, Filing
No. 278). On December 5, 2025, Gross filed a Motion for Early Trial (Filing No. 301), and two
weeks later, while the Motion for Early Trial was pending, Gross filed his Motion to Sever (Filing
No. 315). On December 22, 2025, before the parties finished briefing the Motion to Sever, the
Court denied Gross' Motion for Early Trial (Filing No. 316). The Court, "having determined that
this case is complex due to the number of defendants (whether some are severed or not), and the
nature of the prosecution, which includes five death-penalty-eligible counts and the existence of
novel questions of law and fact concerning the [Continuing Criminal Enterprise] charge,"
concluded that "it is unreasonable to expect adequate preparation for pretrial proceedings or the
trial with the time limits prescribed by § 3161(c)(1) of the Speedy Trial Act, or a date earlier than
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the current setting." Id. at 9. The parties subsequently filed their response and reply briefs on the
Motion to Sever (Filing No. 320; Filing No. 321). That motion is now ripe for ruling.
II. 	LEGAL STANDARD
The district court should grant severance to properly joined defendants "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). Rule 14 allows the district court to sever a defendant's trial if joinder
appears to prejudice the defendant, and the defendant bears the heavy burden of making "'a strong
showing of factually specific and compelling prejudice' that will 'mislead or confuse the jury.'"
United States v. Dixon, No. 14-cr-209, 2015 WL 2400465, at *1 (S.D. Ind. May 19, 2015) (quoting
United States v. Moore, 917 F.2d 215, 221 (6th Cir. 1990)); United States v. Davis, 177 F.3d 552,
558 (6th Cir. 1999) ("[D]efendant seeking severance at trial from co-defendants bears a strong
burden and must demonstrate substantial, undue, or compelling prejudice."). To make this
showing, "the defendant must demonstrate the jury's inability to distinguish the evidence relevant
to each defendant." Moore, 917 F.2d at 221. "[L]ess drastic measures, such as limiting instructions,
often will suffice to cure any risk of prejudice." Zafiro, 506 U.S. at 539.
III. 	DISCUSSION
Gross primarily argues that his trial should be severed "so that he may proceed to trial at
the earliest possible date." (Filing No. 315). He contends that his co-defendants "are not similarly
situated with respect to readiness for trial," and "[t]he preparedness and anticipated pretrial issues
of the remaining defendants threaten to delay trial well beyond the time Mr. Gross is prepared and
entitled to proceed." Id. at 1–2. However, as the Government correctly notes in response, the Court
has since denied Gross' request for an early trial (for reasons other than the co-defendants' joinder),
so severance "will not serve to accomplish [Gross'] ultimate goal . . . to move his trial date
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forward." (Filing No. 320 at 6). On reply, Gross tacitly concedes that the denial of his Motion for
Early Trial moots the argument that severance is needed to permit an early trial. But Gross
continues to argue that a joint trial would result in other types of prejudice that warrant severance
(Filing No. 321). The Court will address each type of potential prejudice in turn.
First, Gross asserts that the death-penalty-eligible charges "overshadow all the other
allegations," and "[n]one of the allegations against the co-defendants is probative as to the question
of whether Gross did or did not cause death by using a firearm during and in relation to a crime of
violence." (Filing No. 315 at 3). "Presenting facts and evidence related to the co-defendants and
their involvement in the alleged drug conspiracy," Gross argues, "would run the very serious risk
that the jury may convict Gross by mere association with the alleged drug offenses." Id. at 4. The
Government responds that Gross' concerns are too generalized to warrant severance, and the Court
agrees. Gross does not identify any specific evidence that would be admissible against a co-
defendant but not Gross; the Government persuasively contends that Gross would be "hard-
pressed" to identify any such evidence, "as he is named in each and every count of the indictment,
and . . . he is alleged to be the leader/organizer of the overall scheme." (Filing No. 320 at 8).
Likewise, Gross does not explain how a joint trial with co-defendants charged with only lesser
offenses (with which Gross is also charged) would prejudice Gross, rather than his co-defendants.
Id. at 9. The fact that Gross alone is charged with the most serious offenses, without more, does
not show a serious risk of prejudice.
Next, Gross argues that a joint trial would deprive him of the ability to cross-examine the
senders and receivers of electronic communications, which the Government is expected to offer as
evidence (Filing No. 315 at 4). The Government responds that these communications will be
admissible under Federal Rule of Evidence 801(d)(2)(E), and that their admission will not violate
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Gross' rights under the Sixth Amendment's Confrontation Clause because they are non-testimonial
statements made in furtherance of a conspiracy, and thus exempt from analysis under the
Confrontation Clause. (Filing No. 320 at 11–12); see United States v. Williams, 858 F.2d 1218,
1224 (7th Cir. 1988). On reply, Gross reiterates the importance of his rights under the
Confrontation Clause and asserts that "the anticipated volume of communications . . . raises
legitimate concerns about the jury's ability to contextualize statements without impermissibly
imputing them to Gross." (Filing No. 321 at 4). However, Gross fails to identify any specific
electronic communications that, if admitted, would run afoul of his Sixth Amendment rights, or
any evidence that a jury would be unable to "contextualize" or properly attribute to a co-defendant.
Lastly, Gross asserts that severance is warranted when there is a "serious risk" that
exculpatory testimony would be unavailable to a defendant in a joint trial (Filing No. 315 at 5).
The Government responds that Gross fails to cite any specific exculpatory evidence supporting his
claim, so "this concern is, at best, premature." (Filing No. 320 at 12). The Court again agrees.
"Joinder and severance determinations are fact-intensive and context-dependent" (Filing
No. 321 at 2), yet Gross fails to offer any specific facts, evidence, or context showing a serious
risk that a joint trial would prejudice him. Zafiro, 506 U.S. at 539. Even if Gross could show
prejudice, "that alone may not necessarily suffice for [him] to prevail; limiting instructions will
often cure any risk of prejudice, and tailoring relief from prejudice is within the district court's
discretion." United States v. Carter, 695 F.3d 690, 701 (7th Cir. 2012). Although the jury may hear
evidence and testimony about Gross' co-defendants' involvement in the alleged drug conspiracy,
money laundering conspiracy, and drug trafficking operation, any risk of prejudice to Gross can
be cured by use of redactions or proper jury instructions.
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At present, Gross has not met his heavy burden of making "a strong showing of factually
specific and compelling prejudice that will mislead or confuse the jury," therefore his Motion to
Sever is denied. However, because subsequent events and/or evidence may provide grounds for
severance, his Motion is denied without prejudice to refile later, if appropriate.
IV. 	CONCLUSION
For the reasons explained above, Gross' Motion to Sever Defendants for Purpose of
Permitting Early Trial (Filing No. 315) is DENIED, without prejudice.
SO ORDERED.
Date: 	2/4/2026
Distribution:
Patrick S Aguirre
Law Offices of Patrick S. Aguirre
attorney@paguirrelaw.com
Jeffrey A. Baldwin
VOYLES VAIANA LUKEMEYER BALDWIN & WEBB
jbaldwin@voyleslegal.com
Gwendolyn M. Beitz
INDIANA FEDERAL COMMUNITY DEFENDERS
gwendolyn_beitz@fd.org
Michelle Patricia Brady
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
michelle.brady@usdoj.gov
Tyler E. Brant
DePrez, Johnson, Brant & Eads, P.A.
tylerbrant@shelbylaw.com
Adam B. Brower
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BANKS & BROWER LLP
adam.brower@banksbrower.com
Julie A. Chambers
Julie Chambers CJA Panel Attorney
julie@chamberslawllc.com
Belle T. Choate
ATTORNEY AT LAW
choatebelle@gmail.com
James A. Edgar
J. EDGAR LAW OFFICES, PC.
jedgarlawyer@gmail.com
Terrance Lamont Kinnard
Kinnard Rowley Powers Jimenez
tkinnard@krpjlaw.com
Scott Aaron Milkey
MCNEELYLAW LLP
SMilkey@McNeelyLaw.com
Carolyn E Powers
Kinnard, Rowley, Powers, Jimenez
cpowers@krpjlaw.com
Brendan Sullivan
Office of the U.S. Attorney - Southern District of Indiana
brendan.sullivan@usdoj.gov
Terry Wayne Tolliver
Brattain Minnix Tolliver
terry@bmtindy.com
Julie L. Treida
TREIDA LAW
treidalaw@gmail.com
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