United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge.
matter is before the Court on DEFENDANT MARIE TAYLOR'S
MOTION TO SEVER (ECF No. 100). For the reasons set forth
below, the motion will be denied.
is one of six defendants named in a seven-count Indictment
filed on March 8, 2017. ECF No. 3 (Under Seal). She was only
charged in Count One, Conspiracy to Commit Wire Fraud- the
sole count naming all six defendants. Id. at 36. The
Indictment discussed approximately 33 fires involving the
defendants, but the United States only alleged that Defendant
was involved in 6 of those incidents.
moved to quash the Indictment on June 28, 2017, on the
grounds that the conspiracy charge as against her was barred
by the statute of limitations because the United States had
only alleged multiple separate conspiracies between each
defendant and Verdon Taylor, and had not alleged facts
showing any connection between Defendant and the other
co-conspirators. ECF No. 80. The Court denied that motion on
June 29, in part because "whether there were multiple
conspiracies is, at most, a question for the jury based upon
evidence presented at trial and that issue must be considered
at that time." ECF No. 82 at 1. Defendant now moves to
sever her trial on a similar basis.
the joinder of offenses or defendants in an indictment . . .
appears to prejudice a defendant or the government, the court
may . . . sever the defendants' trials . . . ." Fed.
R. Crim. P. 14. Nonetheless, the Fourth Circuit has
recognized as a "general principle that when defendants
are indicted together, they should be tried together, "
so "severance pursuant to Rule 14 is rarely
granted" if defendants are properly joined. United
States v. Dinkins, 691 F.3d 358, 368 (4th Cir. 2012);
see also United States v. Medford, 661 F.3d 746, 753
(4th Cir. 2011) p[T]here is a presumption in favor of joint
trials in cases in which defendants have been indicted
together."). Moreover, "[j]oinder is highly favored
in conspiracy trials, " such as this one. United
States v. Lawson, 677 F.3d 629, 639 (4th Cir. 2012).
these principles, "a district court should grant a
severance . . . 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). This type of risk
"might occur when evidence that the jury should not
consider against a defendant and that would not be admissible
if a defendant were tried alone is admitted against a
codefendant." Id. And "[w]hen many
defendants are tried together in a complex case and they have
markedly different degrees of culpability, this risk of
prejudice is heightened." Id. At the same time,
a defendant "must 'establish that actual prejudice
would result from a joint trial . . . and not merely that a
separate trial would offer a better chance of
acquittal.'" United States v. Shealey, 641
F.3d 627, 632 (4th Cir. 2011) (quoting United States v.
Reavis, 48 F.3d 763, 767 (4th Cir. 1995)).
points to two kinds of prejudice that will result from a
joint trial here. First, she contends that the conspiracy
alleged in the Indictment is analogous to the hub-and-spoke
conspiracy discussed in Kotteakos v. United States,
328 U.S. 750 (1946), because the United States has only
alleged separate conspiracies between Verdon Taylor and each
co-defendant, and there are no facts connecting Defendant
with any of the other defendants besides Verdon Taylor. As a
result, there is a risk that the jury will judge Defendant by
her co-defendants' actions rather than her own. Mot. at
3-5. Second, Defendant argues that the "evidentiary
prejudices" in her Motion in Limine also apply
here-namely, that the jury will hear evidence of the
approximately 27 fires not involving Defendant even though
such evidence would not be admissible against her if she were
tried alone. That prejudice is heightened for the 4 fires
alleged to be purposeful or arson. Id. at 6-7.
kind of prejudice is sufficient to justify severance of
Defendant's trial. The first type of prejudice depends
entirely on the alleged similarity of this case to
Kotteakos. But whether the two cases are, in fact,
analogous is a fact question that should not be resolved
before trial. The Court noted as much in its June 29 order
denying the motion to dismiss. See ECF No. 82 at 1.
Furthermore, the number of defendants in Kotteakos,
32, is far greater than the 5 co-defendants being tried
jointly here, so the scale of the potential prejudice is
second type of prejudice is also an insufficient basis for
severance. As the United States notes, the spillover
prejudice from the admissibility of evidence against other
defendants must be very high to serve as a basis for
severance. See United States v. Qazah, 810 F.3d 879,
891 (4th Cir. 2015) (evidence of co-defendant's prior
illegal conduct and evidence recovered from search of
co-defendant's house, which would have been inadmissible
if defendant seeking severance had been tried alone, held
"nowhere close" to satisfying severance standard);
United States v. Allen, 491 F.3d 178, 189 (4th Cir.
2007) ("Without a strong showing of prejudice, severance
is not justified based on the mere disparity of the evidence
adduced against individual defendants."). At best,
Defendant can show that there is some disparity in
the evidence admissible against the co-defendants and against
her specifically, but she has not made any showing beyond
that. And Defendant plainly ignores the best, and most
practical, solution to the risk of prejudice she has raised:
a limiting instruction that the jury shall not consider
certain evidence against her. See Zafiro, 506 U.S.
at 539 ("[L]ess drastic measures, such as limiting
instructions, often will suffice to cure any risk of
foregoing reasons, DEFENDANT MARIE TAYLOR'S MOTION TO