Opinion
6:19-CR-06180 EAW
11-03-2020
UNITED STATES of America, v. David C. COLEY and Darren K. Bordeaux, Defendants.
Sean C. Eldridge, U.S. Attorney's Office, Rochester, NY, for United States of America. Mark A. Foti, Rochester, NY, for Defendants.
Sean C. Eldridge, U.S. Attorney's Office, Rochester, NY, for United States of America.
Mark A. Foti, Rochester, NY, for Defendants.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
I. INTRODUCTION
Defendants David C. Coley ("Coley") and Darren K. Bordeaux ("Bordeaux") (collectively "Defendants") are charged by way of a Superseding Indictment ("SI") returned on March 19, 2020, with violations of 18 U.S.C. § 922(g)(1) (felon in possession of firearm or ammunition), related to the alleged possession of a 9 mm Luger (9x19mm) caliber, Jimenez Arms J.A. Nine, semiautomatic pistol (bearing serial number 334580) and 11 rounds of 9 mm Luger (9x19mm) ammunition on February 21, 2019. Because of the difference in their prior convictions, Coley and Bordeaux are charged in separate counts of the SI, with Coley charged in Count 1 as an Armed Career Criminal in violation of 18 U.S.C. § 924(e)(1) and Bordeaux charged in Count 2 in violation of 18 U.S.C. § 924(a)(2). The events leading up to these charges occurred on February 21, 2019, when at approximately 5:30 PM Bordeaux was allegedly involved in a menacing incident with a firearm, at or near 1306 Dewey Avenue in Rochester, New York. Less than two hours later, a vehicle operated by Bordeaux was stopped by law enforcement, and Coley (who was a passenger) fled from the vehicle. A firearm was allegedly located a short distance from where Coley was apprehended.
This Decision and Order expands upon the Court's reasoning for denying the motion to sever filed by Bordeaux (Dkt. 59) and for overruling the objections of Coley to the Magistrate Judge's denial of his motion to sever (Dkt. 67 (Coley's objections); Dkt. 48 (Magistrate Judge's Decision and Order); Dkt. 34 (Coley's severance motion)).
II. RULE 14 LEGAL STANDARD FOR SEVERANCE
Pursuant to Rule 14, "[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, 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). The decision to sever a trial pursuant to Rule 14 is "confided to the sound discretion of the trial court." United States v. Feyrer , 333 F.3d 110, 114 (2d Cir. 2003). A trial court's decision concerning severance is considered "virtually unreviewable," and the denial of such a motion "will not be reversed unless appellants establish that the trial court abused its discretion." United States v. Cardascia , 951 F.2d 474, 482 (2d Cir. 1991) (citation omitted). In order to successfully challenge the denial of a request for severance, a defendant "must establish prejudice so great as to deny him a fair trial." Id. "It is well established that a defendant cannot avoid the risks of a joint trial simply because he might have a better chance of acquittal in a separate trial." United States v. Figueroa , 618 F.2d 934, 944 (2d Cir. 1980).
The party requesting severance must demonstrate substantial prejudice: "When defendants properly have been joined under Rule 8(b), 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." United States v. Astra Motor Cars , 352 F. Supp. 2d 367, 369-70 (E.D.N.Y. 2005) (alteration omitted and quoting Zafiro v. United States , 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) ); see also Cardascia , 951 F.2d at 482 (in order to successfully challenge the denial of a request for severance, a defendant "must establish prejudice so great as to deny him a fair trial"); United States v. Friedman , 854 F.2d 535, 563 (2d Cir. 1988) ("[T]he defendant must show that he or she suffered prejudice so substantial as to amount to a ‘miscarriage of justice.’ "). "[D]iffering levels of culpability and proof are inevitable in any multi-defendant trial and, standing alone, are insufficient grounds for separate trials." United States v. Chang An–Lo , 851 F.2d 547, 557 (2d Cir. 1988) (citation omitted). "That the defendant would have had a better chance of acquittal at a separate trial does not constitute substantial prejudice." United States v. Carson , 702 F.2d 351, 366 (2d Cir. 1983).
There is a powerful presumption in favor of joint trials of defendants indicted together based upon the underlying policies of efficiency, avoiding inconsistent verdicts, providing a "more accurate assessment of relative culpability," avoiding victims and witnesses having to testify repeatedly, and avoiding the random favoring of "the last-tried defendants who have the advantage of knowing the prosecutor's case beforehand." Richardson v. Marsh , 481 U.S. 200, 210, 219 n.7, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) (citation omitted); see also Cardascia , 951 F.2d at 482 ("The deference given by an appellate court to a trial court's severance decision reflects the policy favoring joinder of trials, especially when the underlying crime involves a common plan or scheme and defendants have been jointly indicted."). The Second Circuit has instructed that "[c]onsiderations of efficiency and consistency militate in favor of trying jointly defendants who were indicted together...." United States v. Spinelli , 352 F.3d 48, 55 (2d Cir. 2003) (citations omitted); see also United States v. Van Sichem , No. SS 89 CR. 813 (KMW), 1990 WL 41746, at *1 (S.D.N.Y. Apr. 2, 1990) ("There is a strong presumption in favor of joint trials for jointly indicted defendants, particularly where, as here, the ‘crimes charged involve a common scheme or plan.’ ") (alteration omitted and quoting United States v. Girard , 601 F.2d 69, 72 (2d Cir. 1979) ).
III. BORDEAUX MOTION TO SEVER
As part of his omnibus pretrial motions filed on July 31, 2020, Bordeaux sought a severance pursuant to Rule 14 based on Coley's alleged post-arrest statements to law enforcement that place Bordeaux at the scene of the alleged menacing incident. (Dkt. 59 at 20-21). Specifically, Bordeaux argued that pursuant to Bruton v. United States , 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), his trial must be severed from Coley because of Coley's post-arrest statements. ( Id. ). The government opposed Bordeaux's motion, arguing that pursuant to Richardson v. Marsh , 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), severance was not warranted because Coley's statements were not incriminating on their face as to Bordeaux, and at best they simply placed Coley with Bordeaux. (Dkt. 70 at 14-15). Oral argument was held on August 27, 2020, at which time the Court indicated that Bordeaux's motion for severance was denied and a written decision confirming its reasoning would be forthcoming. (Dkt. 73).
Here, the alleged post-arrest statements by Coley involve him claiming that Bordeaux picked him up at his house at around 3:00 PM on February 21, 2019; that after driving around they stopped at a corner store located at 1306 Dewey Avenue in Rochester, New York; that Bordeaux entered the store to purchase water while Coley remained in the vehicle; they then stopped at a barber shop and bar, but Coley remained in the vehicle; they were then subsequently stopped by law enforcement and according to Coley, from the time Bordeaux picked him up until the time they were stopped by law enforcement, they were never separated. (Dkt. 59-1 at 1-2). Coley also allegedly stated, after being shown a video of the alleged menacing incident, that his timeline may have been off and the alleged menacing incident could have occurred before Bordeaux picked him up. (Id. at 2).
Coley's alleged statements are not incriminating on their face as to Bordeaux. Rather, the statements only become potentially incriminating for Bordeaux when linked with other evidence in the case. In other words, Coley's alleged statements place Bordeaux at or near the scene of the alleged menacing, but Coley denied any information concerning the alleged menacing and therefore the statements only potentially incriminate Bordeaux when linked with other evidence in the case purportedly establishing that Bordeaux menaced a victim at or near 1306 Dewey Avenue. As a result, pursuant to Richardson , Coley's post-arrest statements to law enforcement—which would only be admissible as to Coley—do not justify a severance.
IV. COLEY'S MOTION TO SEVER
On May 8, 2020, Coley filed a motion to sever pursuant to Rules 8(b) and 14 of the Federal Rules of Criminal Procedure. (Dkt. 34). Coley's severance motion focused on the fact that the count charged against him (Count 1) related to events allegedly occurring at 7:22 PM at Sawyer Street in Rochester, New York, when Coley was arrested by law enforcement, whereas the count charged against Bordeaux (Count 2) related to an alleged menacing event occurring about two hours earlier at or near 1306 Dewey Avenue, Rochester, New York. (Dkt. 34-2 at 4). Although possession of the same firearm is alleged in each count of the SI, Coley argues in his severance motion that a witness did not positively identify the firearm recovered after Coley's arrest as the same firearm possessed earlier that day by Bordeaux. (Id. at 5). Coley argues that joinder was improper under Rule 8(b), and alternatively that severance is warranted under Rule 14 because of the prejudice that he will suffer from a delay in his trial and being associated with Bordeaux who is alleged to have engaged in a violent act of menacing. The government filed its opposition to the severance motion on June 15, 2020. (Dkt. 42). On July 21, 2020, United States Magistrate Judge Mark W. Pedersen issued a Decision and Order denying Coley's severance motion. (Dkt. 48). Magistrate Judge Pedersen concluded that Defendants were properly joined under Rule 8(b) because the allegations of the SI demonstrated that they were alleged to have been in possession of the same gun on the same date, and Coley's arguments otherwise improperly relied on his interpretation of the evidence outside the four corners of the SI. (Dkt. 48 at 5). Magistrate Judge Pedersen also concluded that severance was not warranted pursuant to Rule 14. (Id. at 6-10). On August 11, 2020, Coley filed objections to Magistrate Judge Pedersen's Decision and Order (Dkt. 67), and the government filed its response on August 24, 2020 (Dkt. 72). Oral argument was held before the undersigned on August 27, 2020, at which time the Court indicated that the motion was denied and it would be issuing a written decision amplifying its reasoning in further detail. As correctly explained in Magistrate Judge Pedersen's Decision and Order, the relevant rule for improper joinder is Rule 8(b) in this case. Federal Rule of Criminal Procedure 8(b) provides for joinder of 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." Fed. R. Crim. P. 8(b). This means that the criminal acts of two or more persons are " ‘unified by some substantial identity of facts or participants,’ or ‘arise out of a common plan or scheme.’ " United States v. Attanasio , 870 F.2d 809, 815 (2d Cir. 1989) (citation omitted). The Second Circuit instructs to " ‘apply a "commonsense rule" to decide whether, in light of the factual overlap among charges, joint proceedings would produce sufficient efficiencies such that joinder is proper notwithstanding the possibility of prejudice to either or both of the defendants resulting from the joinder.’ " United States v. Rittweger , 524 F.3d 171, 177 (2d Cir. 2008) (quoting United States v. Shellef , 507 F.3d 82, 98 (2d Cir. 2007) ).
The government contends otherwise, representing that the witness will identify the firearm recovered near Coley as the same firearm possessed earlier in the day by Bordeaux.
Coley and Bordeaux were both originally charged together by criminal complaint on March 12, 2019. (Dkt. 1). On October 24, 2019, only Coley was indicted. (Dkt. 7). Coley contends that the case was ready for trial after the Magistrate Judge resolved his pretrial motions on February 19, 2020, and that he "invoked the Sixth Amendment at a court appearance" on that date. (Dkt. 67-1 at ¶ 10). The Court has reviewed the audio transcript of that appearance on February 19, 2020, and in fact Coley reserved the right to file objections to the decisions of the Magistrate Judge made at that appearance and so consented to an exclusion of time for 14 days (i.e. until March 4, 2020). Also at that appearance, the government indicated that it was intending to file a superseding indictment to add Bordeaux as a defendant, and Coley's counsel indicated that he may file a motion for severance. The indictment was superseded on March 19, 2020. (Dkt. 25). The day before, Chief Judge Frank P. Geraci, Jr., issued a General Order continuing all criminal jury trials in the District because of the COVID-19 pandemic. That stay ultimately was in place until July 15, 2020. (See General Order March 18, 2020 (continuing jury trials through May 13, 2020); General Order May 13, 2020 (continuing jury trials through June 15, 2020); General Order June 15, 2020 (continuing jury trials through July 15, 2020)). In other words, even if Bordeaux had not been added as a defendant, as a practical matter the earliest that Coley's trial could have been scheduled would have been late July.
Pretrial matters in this case were referred to Magistrate Judge Pedersen by Chief Judge Geraci, pursuant to 18 U.S.C. § 636(b)(1)(A) and (B). (Dkt. 12). On May 29, 2020, Chief Judge Geraci recused himself from this case and the matter was reassigned to the undersigned. (Dkt. 38).
It would not appear that a severance motion is dispositive, and thus a magistrate judge would have the authority to rule on the motion without issuing a report and recommendation. On the other hand, neither party has briefed this issue, and it does appear that on occasion severance motions in this District have been handled on a report and recommendation basis. See , e.g. , United States v. McCloud , No. 14-CR-6174-FPG, 2015 WL 4567486 (W.D.N.Y. July 28, 2015) (Chief Judge Geraci adopting report and recommendation of magistrate judge to deny motion for severance); United States v. Elsberry , No. 06-CR-47A, 2009 WL 57521 (W.D.N.Y. Jan. 8, 2009) (District Judge Arcara adopting report and recommendation of magistrate judge to sever counts); United States v. Estimable , No. 08-CR-6031L, 2008 WL 4394674 (W.D.N.Y. Sept. 23, 2008) (District Judge Larimer adopting report and recommendation of magistrate judge to deny motion for severance). Of course, a district court reviews any specific objections to a report and recommendation on a dispositive issue under a de novo standard, Fed. R. Crim. P. 59(b)(3) ; see also 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made."), but in contrast any appeal from a non-dispositive decision by a magistrate judge is reviewed under a "clearly erroneous or contrary to law" standard, id. § 636(b)(1)(A). Given the fact that the parties have not addressed this issue in their filings, this Court will err on the side of caution and review Magistrate Judge Pedersen's denial of Coley's severance motion under a de novo standard of review.
In assessing whether there has been proper joinder under Rule 8(b), the inquiry is not what evidence is anticipated to be introduced at trial—rather, the inquiry is limited to what is alleged in the indictment. "Under the plain language of Rule 8(b), the decision to join parties turns on what is ‘alleged’ in the ‘indictment.’ " Id. at 178. See United States v. Bonventre , 646 F. App'x 73, 80 (2d Cir. 2016) ("the propriety of joinder turns on what is alleged in the indictment, not on evidence later adduced"); 1A C. Wright, A. Miller, et al., Federal Practice and Procedure § 145 (5th ed. 2020) ("[C]ourts generally treat Rule 8 as a pleading rule, and determine the propriety of joinder based on the allegations in the indictment or information.").
Here, Magistrate Judge Pedersen correctly concluded that the SI's allegations established that Coley's and Bordeaux's alleged criminal acts were unified by a substantial identity of facts—namely, they are both alleged to have unlawfully possessed the same firearm on the same date. The only difference in the allegations as to Coley and Bordeaux relates to their prior convictions—and the resulting potential penalties as a result thereof. Accordingly, Coley's motion to sever pursuant to Rule 8(b) is without legal basis and is denied.
Even if the Court were to consider facts outside the allegations in the SI, it is apparent that joinder is proper under Rule 8(b). The government's theory of the case, based in part on Coley's alleged admissions, is that he was with Bordeaux at the time of the alleged menacing incident, and Defendants’ alleged possession of the firearm reflects a continuum of facts on February 21, 2019, over the course of less than two hours, where Coley and Bordeaux were allegedly together.
Moreover, for the same reasons articulated by Magistrate Judge Pedersen, this Court agrees that Coley failed to meet the standard for severance under Rule 14. The fact that Bordeaux was purportedly involved in an alleged menacing incident not involving Coley does not meet the high bar of substantial prejudice necessary to justify a severance. Moreover, to the extent that Coley expressed concern about the delay occasioned by joinder with Bordeaux, any such concerns were ameliorated by the undersigned reversing the magistrate judge referral in this case (Dkt. 63) and handling Bordeaux's pretrial motions herself, thus allowing the case to be scheduled for trial on a date that accommodated Coley's counsel's other commitments. V. CONCLUSION
On August 4, 2020, the Court scheduled the trial to go forward on October 28, 2020, a date that accommodated Coley's counsel's trial schedule in another matter that had been set for September 14, 2020. (Dkt. 64).
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For the foregoing reasons, the motions to sever filed by Bordeaux (Dkt. 59) and Coley (Dkt. 34) are denied, and the Court overrules Coley's objections to the Magistrate Judge's decision (Dkt. 67).
SO ORDERED.