The opinion of the court was delivered by: Judge Algenon L. Marbley
Magistrate Judge Terence P. Kemp
This matter came before the Court for a status conference on Friday, December 21, 2007. At the status conference, the Court noted that Defendants Happ, Poulsen, and Dierker have moved for severance. For the reasons described at the status conference and further elaborated upon below, the Court GRANTS Happ's and Poulsen's motions for severance, finds that Dierker's motion is MOOT insofar as he seeks to have his trial severed from Poulsen's, and DENIES Dierker's motion insofar as he seeks to be severed from all other Defendants in this case.
Generally speaking, the law favors a single trial of jointly indicted defendants where the charges against them "will be proved by the same evidence and result from the same acts." United States v. Beverly, 369 F.3d 516, 534 (6th Cir. 2004). Joint trials promote efficiency by avoiding multiple, duplicative proceedings. However, Federal Rule of Criminal Procedure 14 authorizes courts to sever a defendant's trial from that of his co-defendants if a joint trial would prejudice his rights. Whether to grant a motion for severance is left to the sound discretion of the district court. United States v. Caver, 470 F.3d 220, 238-39 (6th Cir. 2006). Given the policy preference for joint trials, "a defendant seeking severance . . . bears a strong burden and must demonstrate substantial, undue, or compelling prejudice." United States v. Davis, 177 F.3d 552, 558 (6th Cir. 1999).
Defendant Happ moves for severance on the grounds that he has not had sufficient time to prepare for the February 4, 2008 trial date. The Court finds Happ's argument persuasive.
Happ was not indicted until July 10, 2007, whereas the other Defendants in this case were indicted fourteen months earlier, on May 19, 2006. Happ promptly retained counsel, Max Kravitz and Janet Kravitz, who made their appearances in this case on August 10, 2007. Just two days later, Mr. Kravitz unexpectedly passed away. Despite her personal circumstances, Janet Kravitz has continued to represent Happ and she has enlisted the assistance of co-counsel, Mr. Craig Gillen, who entered his appearance on September 10, 2007. Thus, due to circumstances beyond Happ's control-including the timing of the Government's indictment and the unexpected death of one of his attorneys-the Court concludes that it would be unreasonable to expect that Happ's counsel had performed any meaningful preparation for trial prior to September 10, 2007, which was only two months after Happ was indicted and less than five full months prior to the February 4, 2008 trial date.
Happ's five months of preparation time stands in marked contrast to that of his co-defendants, who have been able to develop their defenses over the course of twenty-one months.
Despite this disparity, the Government opposes Happ's motion for severance and argues that he still has had plenty of time to prepare his defense. The Government's arguments are unavailing.
As a threshold matter, the Court notes that earlier in these proceedings the Government opposed Defendants' motion for a continuance of the trial date from November 5, 2007, to February 4, 2008. At that time, the Government urged the Court to retain the November 5 trial date but sever Happ, if necessary. The Government represented that it would put on a "focused and narrow case against Happ in a separate trial" that would "take a fraction of" the time of the Government's case-in-chief against Happ's co-defendants, and that this separate trial would not be duplicative of the main trial.
Of course, the Government's earlier willingness to go along with severing Happ was conditioned upon the Court keeping the November 5, 2007 trial date. The Government is not obligated to stand by its former position where the Court decided to grant a three-month continuance of the trial date to February 4, 2008. Nonetheless, the Court has no reason to disbelieve the Government's assertions-and the Government has not suggested otherwise-that the evidence presented in a separate trial against Happ will not be duplicative of the evidence presented against Happ's ...