Opinion
No. 1:03-cr-168 Edgar.
September 8, 2004
MEMORANDUM AND ORDER
Defendant Hal Atchley ("Atchley") makes the following motions. The Court heard oral argument on these motions during the final pretrial conference on September 2, 2004.
I. Motion to Sever Counts One and Two [Court File No. 72]
The second superseding indictment contains five counts. The Court learned during the suppression hearing that the five counts concern interrelated events that occurred on or about May 20 or 21, 2001, at a motel in Hamilton County, Tennessee. All of the charges against Atchley arise out of a common nucleus of operative facts.
Count One charges that Atchley, aided and abetted by others, attempted to manufacture methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2. Count Two charges that Atchley, aided and abetted by others, possessed equipment, chemicals, products, and materials to be used to manufacture methamphetamine in violation of 21 U.S.C. § 843(a)(6) and 18 U.S.C. § 2. In sum, Counts One and Two allege that Atchley was attempting to manufacture methamphetamine inside the motel room on or about May 21, 2001.
Count Three charges that Atchley violated 18 U.S.C. § 924(c) by possessing two firearms, a Ruger P89, 9mm handgun and a Smith and Wesson Sigma .40 caliber handgun, in furtherance of the drug-trafficking crimes charged in Counts One and Two. The two firearms were seized by police inside the motel room. Count Four charges that Atchley, having previously been convicted of a felony, possessed the Ruger handgun in violation of 18 U.S.C. § 922(g). Count Five charges that Atchley, having previously been convicted of a felony, possessed the Smith and Wesson handgun in violation of 18 U.S.C. § 922(g). The government and Atchley have reached a stipulation that he had a felony conviction prior to the date of the § 922(g) offenses charged in Counts Four and Five.
Atchley moves pursuant to Fed.R.Crim.P. 14 to sever Counts One and Two from the remaining counts for trial. [Court File No. 72]. He argues that prejudice will arise from the firearm violations charged in Counts Three, Four and Five Counts being joined at trial with Counts One and Two. More specifically, Atchley contends there is a substantial likelihood that there will be a prejudicial "spill-over effect" from the evidence on Counts Three, Four, and Five that firearms were present in his motel room and that Atchley had a prior felony conviction. When the jury deliberates on Counts One and Two, Atchley does not want the jury to know about evidence that firearms were present in the motel room and that Atchley was a convicted felon.
For the reasons explained by the Court on the record at the final pretrial conference and for the reasons expressed by the government in its response [Court File No. 100], the motion to sever Counts One and Two is DENIED.
Even though the joinder of offenses is appropriate under Fed.R.Crim.P. 8(a), the Court in its discretion may order separate trials on different counts pursuant to Fed.R.Crim.P. 14(a) if it appears the defendant is prejudiced by the joinder of offenses. United States v. Cope, 312 F.3d 757, 781 (6th Cir. 2002). The Court balances the public interest in speedy, efficient trials that conserve judicial resources against Atchley's interest in obtaining a fair trial. United States v. Graham, 275 F.3d 490, 513 (6th Cir. 2001); United States v. Wirsing, 719 F.2d 859, 864-65 (6th Cir. 1983).
After reviewing the record and hearing oral argument, the Court concludes that Atchley has failed to show that a severance of Counts One and Two from the remaining counts is necessary to prevent undue prejudice at trial. The Court is not persuaded that Atchley will suffer undue prejudice that outweighs the public interest in promoting judicial economy. It will not be difficult for the jury to compartmentalize and distinguish the particular evidence concerning each of the five offenses charged against Atchley.
The Court can give limiting instructions to the jury. A jury is presumed capable of giving separate consideration to each count, and any potential prejudice from joinder of offenses may be minimized or cured by a limiting instruction to the jury. United States v. Cline, 362 F.3d 343, 349-50 (6th Cir. 2004); Cope, 312 F.3d at 781; United States v. Chavis, 296 F.3d 450, 461-62 (6th Cir. 2002); United States v. Jacobs, 244 F.3d 503, 507 (6th Cir. 2001); United States v. Rugiero, 20 F.3d 1387, 1391 (6th Cir. 1994); see also Zafiro v. United States, 506 U.S. 534, 539 (1993) (A trial court's use of limiting jury instruction may cure such prejudice); United States v. Frost, 125 F.3d 346, 391 (6th Cir. 1997). The jury is presumed to follow and apply limiting instructions.
In this case, the evidence of a methamphetamine lab and the two firearms were seized by the police during the same search of Atchley's motel room. There is no inherent prejudice to Atchley on Counts One and Two if the government introduces evidence at trial that he possessed firearms in the motel room in direct connection with the attempted manufacture of methamphetamine. Firearms are common tools of the illegal drug trade. See Chavis, 296 F.3d at 459. It should come as no surprise to an objectively reasonable juror that persons who manufacture methamphetamine often possess firearms to protect themselves and to protect or guard their methamphetamine and illegal drug money.
As the government correctly points out in its response, in order to prove the violation of 18 U.S.C. § 924(c) charged in Count Three, the government must necessarily prove that Atchley is guilty under either Count One or Count Two. The same proof required for Counts One and Two will also be required to establish the predicate aspect of the § 924(c) offense charged in Count Three. Count Three is inextricably intertwined with Counts One and Two and there will be overlapping proof. It would be an unnecessary waste of judicial resources to sever the trial of Counts One and Two from Count Three. Accordingly, the Court DENIES Atchley's motion to sever Counts One and Two from Count Three. Cf Graham, 275 F.3d at 511-13.
With regard to Counts Four and Five, there is no need for severance. The joinder of Counts One and Two with Counts Four and Five for trial is permissible and does not cause undue prejudice to Atchley. It is a common practice in the federal courts for drug offenses to be tried together with factually related charges involving felons in possession of firearms under 18 U.S.C. § 922(g), especially where there is overlapping proof. See e.g. United States v. Moreno, 933 F.2d 362, 370 (6th Cir. 1988). Any "spill-over effect" and potential prejudice to Atchley will be minimized by his stipulation of the prior felony conviction and the limiting instructions the Court can give the jury. United States v. Clark, 184 F.3d 858, 866-68 (D.C. Cir. 1999); United States v. Bowie, 142 F.3d 1301, 1305-08 (D.C. Cir. 1998); see also United States v. Moore, 376 F.3d 570, 574 (6th Cir. 2004) (Defendant not deprived of fair trial where district court gave curative, limiting instruction concerning prior felony conviction).
There is no " per se rule" requiring the severance of a felon-in-possession of firearm charge from other counts. The courts analyze motions for severance on a case-by-case basis with caution to avoid undue prejudice to defendants resulting from joinder. Clark, 184 F.3d at 866; Bowie, 142 F.3d at 1307-08. The Sixth Circuit in United States v. Waagner, 2004 WL 1595193, * 5-6 (6th Cir. July 14, 2004), recognizes there is some authority for the position that in certain circumstances charges based upon a defendant's status as a convicted felon should be severed from other charges to ensure a fair trial. See e.g United States v. Jones, 16 F.3d 487 (2nd Cir. 1994); United States v. Holloway, 1 F.3d 307, 312 (5th Cir. 1993); United States v. Dockery, 955 F.2d 50, 53-56 (D.C. Cir. 1992); United States v. Daniels, 770 F.2d 1111, 1118 (D.C. Cir. 1985). This line of precedent emphasizes the degree of connection or lack of connection between the felon-in-possession charges and the other charged offenses. If a factual connection between the felon-in-possession charges and the other charged offenses is tenuous or nonexistent, then the federal courts are more likely to grant a severance. Waagner, 2004 WL 1595193 at * 5-6.
In the instant case, Counts One and Two against Atchley are closely connected and factually intertwined with Counts Four and Five. The connection is not tenuous. Accordingly, the motion to sever Counts One and Two fails. Id.; United States v. Colonna, 360 F.3d 1169, 1177-78 (10th Cir. 2004).
During the final pretrial conference, Atchley's counsel also orally requested the Court to bifurcate the trial on the elements of the felon-in-possession of firearm charges (Counts Four and Five) brought under 18 U.S.C. § 922(g). The request for bifurcation is DENIED. Moore, 376 F.3d at 573-74; Clark, 184 F.3d at 865-68.
II. Motion to Prohibit Introduction of Defendant's Prior Convictions, Arrests, and Other Bad Acts [Court File No. 74]
Atchley moves pursuant to Rules 404(b) and 609 of the Federal Rules of Evidence to prohibit the government from introducing into evidence at trial his prior convictions, prior arrests, and other bad acts. [Court File No. 74]. This motion is DENIED.
The government and defendant Atchley have entered into a stipulation that he had a prior felony conviction. The government agrees that during the presentation of its case in chief at trial, the government will not offer or seek to introduce Atchley's prior convictions into evidence. The stipulation reduces and minimizes the danger of unfair or undue prejudice to Atchley.
With respect to the issue of other bad acts under Fed.R.Evid. 404(b), the Court will consider and rule on any timely objections made by Atchley during trial. Objections under Rule 404(b) must be considered in the context of the proof and the circumstances at trial.
III. Motion to Exclude Evidence [Court File No. 94]
Atchley moves pursuant to Fed.R.Crim.P. 16(d)(2) to exclude from evidence an official forensic chemistry lab report dated August 27, 2001. The Rule 16(d)(2) motion for discovery sanctions to exclude evidence [Court File No. 94] is DENIED.
Counsel for the government, Assistant United States Attorney Perry Piper, did not become aware of the chemistry report's existence until August 30, 2004. When Mr. Piper first learned about and obtained the chemistry report from a state police officer on August 30, 2004, he immediately furnished a copy of it to the defendant's counsel. The Court finds that Mr. Piper has acted in good faith. The government has not deliberately violated or refused to comply with the discovery order and Fed.R.Crim.P. 16.
Moreover, Atchley has not shown that he will suffer any unfair or undue prejudice at trial as a result of the chemistry report being furnished to him on August 30, 2004. In the absence of actual prejudice to Atchley, there is no good reason shown why the chemistry lab report dated August 27, 2001, should be excluded from evidence. Under these circumstances, there is no rational basis for the Court to impose a drastic sanction on the government under Rule 16(d)(2) by excluding the chemistry report from evidence.
Accordingly, defendant Atchley's motions [Court File Nos. 72, 74, 94] are DENIED.
SO ORDERED.