United States v. McGregor

840 F. Supp. 2d 1281, 2011 WL 6959939, 2011 U.S. Dist. LEXIS 151391
Procedural entryThis page is a short order in United States v. McGregor. Read the opinion of the Court — 824 F. Supp. 2d 1339
District Court, M.D. Alabama·Decided December 9, 2011·No. Criminal Action No. 2:10cr186-MHT·Published

Opinion

[1283]*1283OPINION AND ORDER

MYRON H. THOMPSON, District Judge.

Following a nine-week trial and a week of deliberations, a jury returned 91 not-guilty verdicts and 33 unresolved counts in this complex public-corruption case. Two defendants — Robert B. Geddie, Jr. and Quinton T. Ross, Jr. — were acquitted entirely. The government has elected to retry the remaining seven defendants on all outstanding counts.

The government now moves to sever the case into three parts. The first retrial would proceed against defendants Milton E. McGregor and Joseph R. Crosby. The second retrial would be against defendant Harri Anne H. Smith. The government would then retry defendants Thomas E. Coker, Jarrell W. Walker, Jr., Larry P. Means, and James E. Preuitt. The defendants, with the exception of Coker, oppose severance.

As the government acknowledged before the first trial, “duplicative efforts are unwarranted here.” Gov’t’s Resp. (Doc. No. 546) at 7. Triplicate retrials would be an even greater waste of judicial resources. For the reasons that follow, the government’s motion for severance will be denied.

I. BACKGROUND

The court is now confronted with a role reversal. In pretrial proceedings, six defendants repeatedly moved for severance on grounds of alleged prejudice or because they sought a speedier trial than other co-defendants. Defs.’ Mots, to Sev. (Doc. Nos. 362, 414, 465, 477, 504 & 519). The government uniformly opposed these motions. E.g., Gov’t’s Resp. (Doc. No. 546).

The government refuted the defendants’ claims of prejudice by relying on the strong presumption for joint trials in conspiracy cases. Gov’t’s Resp. (Doc. No. 282) at 6 (citing Zafiro v. United States, 506 U.S. 534, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993), and United States v. Browne, 505 F.3d 1229 (11th Cir.2007)). Emphasizing that the charges would be “proven with a single set of recorded conversations, documents, and witness testimony,” the government argued that the “defendants should be tried together, in a single trial that will ensure effective use of judicial resources.” Id. As the government recognized, “severance of defendants McGregor, Smith, Geddie, and Crosby ... would waste judicial resources by forcing the Court to adjudicate two highly similar, overlapping, and lengthy trials.” Gov’t.’s Resp. (Doc. No. 546) at 7.

Judicial efficiency — for the benefit of the court, the parties, the attorneys, and the public — was a consistent theme of the pretrial arguments over severance. The logistical burdens associated with a trial of this magnitude came as no surprise to the government. The sheer number of lawyers and defendants necessitated the temporary remodeling of a courtroom and the creation of an overflow room for the public and press. During a discussion about the difficulties of trying all of the defendants— then a total of 11 — in the same courtroom, the government commented that a joint trial is “far more practical than trying two or three times the same case.” Conf. Trans. (Doc. No. 289) at 41. And, in response to a question about a separate trial for Smith, the government answered that severance “would be a waste of the Court’s resources.” Id. at 40.

This court denied the defendants’ motions for severance, finding the defendants’ fears of prejudice and the logistical hurdles of a joint trial were outweighed by the presumption of a joint trial. United States v. McGregor, 2011 WL 798414 (M.D.Ala. 2011) (Thompson, J). The case proceeded to trial in June 2010, lasting ten weeks from voir dire to verdict.

[1284]*1284The case as it now stands is very different from its original incarnation. Two defendants pled guilty prior to the first trial, and the jury acquitted two defendants on all counts. After 91 not-guilty verdicts, the jury has streamlined this case substantially. The jury acquitted on the overwhelming majority of honest-services charges. All but one of the remaining defendants are ■ charged with conspiracy. The charges against McGregor represent nearly half of the remaining counts.

II. THE GOVERNMENT’S PROPOSED SEVERANCE

After a lengthy trial and a hung jury on a minority of charges, the government has had a change of heart — or strategy. Pointing to the lengthy cross-examinations and the volume of evidence, the government now believes the jury was overwhelmed by the trial and that severance is appropriate.

The government contends that its tripartite severance proposal is grounded on a theory of the evidence that maximizes judicial efficiency. Arg. Trans. (Doc. No. 1769) at 49 (arguing that tripartite severance is efficient because of “three discrete fact patterns”). According to the government, the trial against McGregor and Crosby “would focus primarily on defendant McGregor’s alleged conduct with respect to Scott Beason and Barry Mask, as well as his $ 3,000 payments to Crosby.” Gov’t’s Mot. to Sev. (Doc. No. 1697) at 3. The government estimates that this first trial would only take two to three weeks. Id. Smith’s trial would “focus on her relationship with [co-defendant Ronnie] Gilley, including his funding of her campaigns, as well as Smith’s alleged efforts to bribe Steven French.” Id. Finally, the third trial would focus on the alleged bribing of Means and Preuitt by Coker, Walker, and McGregor. Id. at 3-4.

III. STANDARD FOR SEVERANCE

As the Eleventh Circuit Court of Appeals recently explained, “Joint trials play a vital role in the criminal justice system and serve important interests: they reduce the risk of inconsistent verdicts and the unfairness inherent in serial trials, lighten the burden on victims and witnesses, increase efficiency, and conserve scarce judicial resources.” United States v. Lopez, 649 F.3d 1222, 1233 (11th Cir.2011). Accordingly, “the rule about joint trials is that ‘defendants who are indicted together are usually tried together.’” Id. at 1234 (quoting Browne, 505 F.3d at 1268). And, as here, that “rule is even more pronounced in conspiracy cases where the refrain is that ‘defendants charged with a common conspiracy should be tried together.’ ” Id. (quoting United States v. Beale, 921 F.2d 1412, 1428 (11th Cir.1991)).

Under Federal Rule of Criminal Procedure 14(a), “If the joinder of ... defendants in an indictment ... appears to prejudice a defendant or the government, the court may ... sever the defendants’ trials, or provide any other relief that justice requires.” Given this strong policy preference for joinder, “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.” Zafiro, 506 U.S. at 539, 113 S.Ct. 933 (emphasis added).

As Zafiro’s standard implies, most requests for severance are made by defendants.

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United States v. McGregor, 840 F. Supp. 2d 1281, 2011 WL 6959939, 2011 U.S. Dist. LEXIS 151391 (M.D. Ala. 2011).

840 F. Supp. 2d 1281 (United States v. McGregor) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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