United States v. Ragin

737 F. Supp. 889, 1990 U.S. Dist. LEXIS 7499, 1990 WL 83376
CourtDistrict Court, W.D. North Carolina
DecidedJune 11, 1990
DocketNos. C-CRr-90-25-01, C-CR-90-25-02 and C-CR-90-25-04
StatusPublished

This text of 737 F. Supp. 889 (United States v. Ragin) is published on Counsel Stack Legal Research, covering District Court, W.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ragin, 737 F. Supp. 889, 1990 U.S. Dist. LEXIS 7499, 1990 WL 83376 (W.D.N.C. 1990).

Opinion

ORDER

ROBERT D. POTTER, Chief Judge.

THIS MATTER is before the Court on motions to sever filed by Defendant Leola Marsh on May 30, 1990 and Defendant Mary Springs Ragin on June 7, 1990. Additionally, Defendant Leroy Ragin filed on June 4, 1990 a motion to quash the subpoena of his attorney, Mr. James H. Carson. [891]*891The Government filed a response to Defendant Leola Ragin Marsh’s motion on June 1, 1990. The Court conducted a hearing on June 7, 1990 to consider arguments on these motions. Both of the motions to sever were denied from the bench, and the motion to quash the subpoena of Mr. Carson was granted from the bench. The Court has entered this order to clarify the rationale behind its oral rulings of June 7, 1990.

A. Defendant Leola Marsh’s Motion to Sever.

Rule 14 of the Federal Rules of Criminal Procedure is applicable to motions to sever. That rule provides in pertinent part:

If it appears that a defendant or the government is prejudiced by joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires ...

The decision to grant a severance based upon prejudicial joinder rests with the trial court. See 8 Moore’s Federal Practice, § 14.02[1] at 14-4 (Matthew Bender 1990) (hereinafter “Moore’s"). The trial court’s denial of a motion to sever is “virtually unreviewable” unless a clear showing of abuse of discretion is made. Id.; United States v. Goldman, 750 F.2d 1221 (4th Cir.1984). In determining whether to grant a Rule 14 motion, the court must balance potential prejudice of the defendants against judicial economic interests. United States v. Stratton, 649 F.2d 1066 (5th Cir.1981). The defendant undertakes a “considerable burden” in attempting to show the trial judge abused his discretion in denying a motion to sever. Moore’s at 14-5.

In support of Defendant Leola Ragin Marsh’s motion to sever, she claims that a severance is appropriate on two grounds. First, Defendant Leola Marsh has subpoenaed the defense counsel for Defendant Leroy Ragin. Second, Defendant Leola Marsh claims that there is a substantial likelihood that Defendant Leroy Ragin would testify on her behalf and provide exculpatory testimony if these Defendants were severed. The Court will address each of the arguments below.

1. The subpoena of defense counsel for Leroy Ragin.

At the hearing of this matter, defense counsel for Defendant Leola Marsh filed a Proffer of Testimony that he asserted would summarize the testimony of Mr. Carson, defense counsel for Defendant Leroy Ragin, if allowed to testify. After reviewing the proffer, the Government stated that it would not object to this proffer being read to the jury during the trial of this matter. However, defense counsel for Leola Marsh objected to the proffer of the testimony replacing the live testimony of Mr. Carson. Defense counsel for Leola Marsh asserted that she has a constitutional right for Mr. Carson to testify at her trial, and that this right requires her case to be severed from that of Defendant Leroy Ragin.

At the hearing, the Court denied the motion to sever on this ground. The Court agrees with the Government that Defendant Leola Marsh has subpoenaed Mr. Carson merely for the purpose of providing character testimony. At the hearing, defense counsel for Defendant Leola Marsh stated that Mr. Carson would provide testimony that would tend to demonstrate that Defendant Leola Marsh conducted herself during the time period that Mr. Carson represented her in a business-like manner. Moreover, Mr. Carson would testify that during his representation of Defendant Leola Marsh that he did not discover any connection to Defendant Leroy Ragin.

It does not appear to the Court based on the information provided at the hearing that Mr. Carson would be able to provide any testimony regarding the events alleged in the bill of indictment. The proffer of testimony indicates Mr. Carson represented Defendant Leola Marsh in a contract dispute. The proffer, however, does not indicate whether Mr. Carson was aware that Defendant Leola Marsh made false state[892]*892ments to federal agents regarding the ownership of Leola’s Plaza as alleged in the indictment. Therefore, the Court does not believe Mr. Carson’s testimony would be material to the primary issues in this case.

The Court does not believe Defendant Leola Marsh has provided an adequate basis to justify the expense and inconvenience of severing this matter based on Mr. Carson’s testimony. Defendant Leola Marsh has failed to cite any legal authority to support the proposition that a case must be severed when a defendant subpoenas an attorney as a character witness who is representing a co-defendant. The Court believes that the attempt by Defendant Leola Marsh to subpoena Mr. Carson is an attempt to delay the trial of this matter. Because the Court is unaware of any legal support for the motion, the Court will deny the motion to sever on the basis of the subpoena of Mr. Carson.

Accordingly, the Court will grant the motion to quash the subpoena filed by Mr. Carson.

2. Possible Exculpatory Testimony From Leroy Ragin.

Defendant Leola Marsh contends that Defendant Leroy Ragin will testify on her behalf if these cases are severed. In support of that contention, Defendant Leola Marsh has attached a copy of a Defendant Leroy Ragin’s deposition from a related civil forfeiture proceeding. According to Defendant Leola Marsh, the deposition demonstrates that Defendant Leroy Marsh is eager to waive his Fifth Amendment right against self-incrimination, but is constrained to do so because his case remains joined for trial with that of Defendant Leola Marsh.

Motions for severance on the ground of absence of a codefendant’s testimony are usually denied. See Moore’s at 14-40; see also Hoelker, 765 F.2d at 1425. The Motion must be accompanied by more than a bare, unsupported contention that a separate trial would provide exculpatory testimony. The Fourth Circuit has enunciated the following standard for determining whether severance should be granted.

Where the motion for severance is based, as here, on the asserted need for a code-fendant’s testimony, the moving defendant must establish (1) a bona fide need for the testimony of his co-defendant, (2) the likelihood that the co-defendant would testify at a second trial and waive his Fifth Amendment privilege, (3) the substance of his co-defendant’s testimony, and (4) the exculpatory nature and effect of such testimony.

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Bluebook (online)
737 F. Supp. 889, 1990 U.S. Dist. LEXIS 7499, 1990 WL 83376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ragin-ncwd-1990.