United States District Court, E.D. Washington
ORDER DENYING MOTIONS TO SEVER TRIAL
ROSANNA MALOUF PETERSON, Chief District Judge.
BEFORE THE COURT are Motions to Sever Trial from Defendant Smith filed by Codefendants Tammy Olson and Karis Delong, respectively. ECF Nos. 317, 318. Also before the Court is a motion to accept a late-filed declaration in support of the motions to sever, filed by Defendant Louis Daniel Smith, ECF No. 361, and a motion to expedite the same, ECF No. 362, which was granted in the Court's Order Memorializing Court's Oral Rulings at ECF No. 367.
Codefendants Tammy Olson and Karis Delong were indicted, along with Defendant Smith, on one count of conspiracy to commit an offense against the United States or to defraud the United States in violation of 18 U.S.C. § 371; four counts of delivering misbranded drugs into interstate commerce in violation of 21 U.S.C. §§ 331(a) and 333(a)(2); and one count of smuggling in violation of 18 U.S.C. § 545. ECF No. 1. The Indictment alleges that the Defendants engaged in a scheme to import, manufacture, and sell hazardous material that was marketed as a health product. Id. Specifically, the Indictment alleges that Defendants, operating through a company called "PGL International, " misbranded sodium chlorite, a harmful chemical, as Miracle Mineral Solution ("MMS") and marketed it to the public for consumption to cure such ailments as malaria, HIV/AIDS, hepatitis, and various forms of cancer. Id. at 4, 7.
With regard to count one of the Indictment, Defendants are accused of conspiring "to obtain the chemicals needed to manufacture the drug MMS without revealing to regulators and suppliers the true purpose of the chemicals; to use those chemicals to manufacture the drug MMS in a facility that was hidden from regulators; to offer MMS for sale on websites they had established; and to enrich themselves by obtaining money from the interstate sales of the misbranded drug MMS." Id. at 7. The Indictment contains numerous specific allegations as to Codefendants Karis Delong and Tammy Olson's alleged involvement in the conspiracy, along with Defendant Smith and Codefendant Chris Olson.
Codefendants Tammy Olson and Karis Delong filed motions to sever their trial from the trial of Defendant Smith, contending that they require access to exculpatory testimony that Defendant Smith only can provide at their separate trial. ECF Nos. 317, 318. At the Codefendants' request, the Court allowed for supplemental briefing on the Codefendants' motions to sever. ECF No. 337. Codefendants Tammy Olson and Karis Delong filed their supplemental memoranda ex parte. ECF Nos. 354, 355. Codefendants explained that they were filing their memorandum ex parte due to their reliance on certain materials to which Defendant Smith has claimed attorney-client privilege and which have not been disclosed to the Government.
On July 14, 2014, after the deadline set forth in the Court's Pretrial Order, Defendant Smith filed a declaration in support of Codefendants Tammy Olson's and Karis Delong's motions to sever. ECF No. 357. The Government filed its supplemental response within the time frame set forth in the Court's Pretrial Order and argued in part that Defendant Smith's supporting declaration was not timely filed. ECF No. 359. The Court determined at oral argument that it would accept Defendant Smith's late-filed declaration. ECF No. 367 at 2. The Court additionally will consider a reply brief that Defendant Smith filed in support of Codefendants Tammy Olson's and Karis Delong's motions to sever, ECF No. 363.
Codefendants Tammy Olson and Karis Delong both premise their motions to sever on the basis that Defendant Smith would provide exculpatory testimony as to those two Codefendants in a separate trial. See, e.g., United States v. Mariscal, 939 F.2d 884, 885 (9th Cir. 1991).
There exists a preference in the federal system that codefendants jointly charged should be jointly tried. E.g., United States v. Hernandez-Orellana, 539 F.3d 994, 1001 (9th Cir. 2008). Federal Rule of Criminal Procedure 8(b) provides for joinder of two or more defendants if the defendants "are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses." However, a court may sever defendants' trials under Federal Rule of Criminal Procedure 14(a) where joinder "appears to prejudice a defendant."
When joinder was originally proper under Rule 8(b), "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 v. United States, 506 U.S. 534, 539 (1993). "Rules 8(b) and 14 are designed to promote economy and efficiency and to avoid a multiplicity of trials, [so long as] these objects can be achieved without substantial prejudice to the right of the defendants to a fair trial." Id. at 540 (quoting Bruton v. United States, 391 U.S. 123, 130 (1968)) (alteration in Zafiro ).
One basis for ordering separate trials is when a codefendant will provide exculpatory testimony at another defendant's separate trial. E.g., Mariscal, 939 F.2d at 885. In considering a request for severance on this ground, the court must weigh such factors as "the good faith of the intent to have a codefendant testify, the probability that the testimony will materialize, the economy of a joint trial, the possible weight and credibility of the predicted testimony, and the degree to which the predicted testimony is exculpatory." United States v. Cuozzo, 962 F.2d 945, 950 (9th Cir. 1992) (citing Mariscal, 939 F.2d at 885)). The predicted testimony is not sufficiently exculpatory where it would merely be favorable to the moving defendant; rather, the predicted testimony must instead be "substantially exculpatory." Mariscal, 939 F.2d at 886 (quoting United States v. Ford, 870 F.2d 729, 732 (D.C. Cir. 1989)). "A showing that the testimony would merely contradict portions of the government's proof is insufficient." Id. The test for severability on this ground is "stringent." United States v. Reese, 2 F.3d 870, 892 (9th Cir. 1993).
Codefendants Tammy Olson and Karis Delong contend that their trials must be severed from that of Defendant Smith because Defendant Smith can provide exculpatory evidence that could not otherwise be presented without his testimony, and that Defendant Smith likely would invoke his Fifth Amendment right to remain silent if called to testify at a joint trial. Specifically, Codefendants Tammy Olson and Karis Delong point to Count One of the Indictment, which charges all Defendants with engaging in a conspiracy "with the intent to defraud or mislead the United States and its agencies, " in violation of 18 U.S.C. § 371. As the Codefendants point out, § 371 criminalizes only willful intent. United States v. Tuohey, 867 F.2d 534, 537 (9th Cir. 1989). Codefendants Tammy Olson and Karis Delong contend that Defendant Smith can testify that they did not act willfully, because they were not privy to the communications that Defendant Smith had with attorneys and consultants, or with the FDA, regarding the continued sale of MMS.
In support of their argument, Codefendants point to emails between Defendant Smith and his previous attorney Nancy Lord. Defendant Smith has asserted that he is entitled to attorney-client privilege as to these emails. The emails, which were obtained by a search warrant and screened by the Government's screening team, were ordered by the Court to be provided to the Codefendants in discovery pursuant to the Government's Brady ...