The opinion of the court was delivered by: Charles R. Norgle, Sr., District Judge:
Before the court is Defendant William A. Hanhardt's motion to sever.
For the following reasons, the court denies the motion.
The prosecution arises out of an alleged conspiracy to commit jewelry
thefts across the United States from in or about the early 1980's and
continuing thereafter to in or about April of 1998. On October 19, 2000,
Hanhardt and five Co-Defendants were indicted. The alleged conspiracy
involved the targeting and surveillance of traveling jewelry salespersons
for the purpose of stealing their inventory. Once potential targets had
been identified and their routines observed, the conspirators allegedly
orchestrated thefts of the jewelry inventories. The indictment alleges
eight such thefts occurred, with two more attempted thefts. Hanhardt is
the alleged leader of the conspiracy. Additionally, it is alleged that
Hanhardt personally participated in the theft of jewelry.
Following the indictment in October of 2000, the parties began their
pre-trial matters. The Government has turned over approximately 26, 653
pages of documents to each Defendant, including Hanhardt. On motion of
Defendants a January 2001 trial date was stricken. On May 18, 2001 the
court set a trial date of September 4, 2001. On June 28, 2001 Hanhardt
filed a motion to continue the trial date of September 4, 2001 on two
bases: (1) Thomas P. Sullivan's, Hanhardt's attorney, prior commitment to
a client in a private arbitration; and (2) lack of sufficient time to
prepare the case for trial because of the complexity of the facts and
issues involved. Within the motion to continue was a sentence, the very
last sentence, which stated: "In the alternative, Mr. Hanhardt moves that
his case be severed pursuant to F.R. Criminal P. 14, and set for trial on
a date after January 1, 2002 convenient to the Court." (Hanhardt's Mot.
to Cont. at 13.)
Federal Rule of Criminal Procedure 14 states in pertinent part:
If it appears that a defendant or the government is
prejudiced by a 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
Fed. R. Crim. P. 14. The determination of prejudice and the remedy of
severance is left to the sound discretion of the district court. See
Zafiro v. United States, 506 U.S. 534, 541 (1993). Rule 14 requires
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." Id.
at 539. Therefore, district courts must weigh the public interest in
judicial efficiency and economy that would result from a joint trial
against the possibility of undue prejudice resulting from such a trial.
United States v. Colon, No. 97 CR 659, 1999 WL 77226 at *4 (N.D. Ill.
Jan. 8, 1999) (citing United States v. Zanin, 831 F.2d 740, 744 (7th
Cir. 1987); United States v. Rivera, 825 F.2d 152, 159 (7th Cir. 1987).
"[G]iven the district court's broad discretion in managing its docket and
the difficulty in establishing severe prejudice, the district court's
refusal to sever is rarely reversed." Colon, 1999 WL 77226 at *4 (citing
United States v. Handford, 39 F.3d 731, 735 (7th Cir. 1994)).
Additionally, the Seventh Circuit has noted "the strong public interest
in having persons jointly indicted tried together. . . ." United States
v. Neely, 980 F.2d 1074, 1090 (7th Cir. 1992) (citing United States v.
Percival, 756 F.2d 600, 610 (7th Cir. 1985)). ..... [J]oint trials are
beneficial not only for efficiency but because they limit inconvenience
to witnesses, avoid delays in bringing defendants to trial, and allow the
"total story" to be presented to a single jury." United States v. Adam
Stillo Sr. and Joseph T. Stillo, 57 F.3d 553, 557 (7th Cir. 1995).
In United States v. Garner, 837 F.2d 1404 (7th Cir. 1987), the Seventh
Circuit provided a number of instances where severance under Rule 14
might be appropriate: (1) antagonistic defenses conflicting to the point
of being irreconcilable and mutually exclusive; (2) massive and complex
evidence making it almost impossible for the jury to separate and
consider the evidence as it relates to each defendant's innocence or
guilt; (3) a co-defendant's statement inculpating the moving defendant;
and (4) gross disparity in the weight of the evidence against each
defendant. Garner, 837 F.2d at 1413. As the Seventh Circuit stated, these
are not the only instances in which severance is appropriate, but they
provide a helpful reference for considering the types of instances that
might trigger severance. See Id. Ultimately however, the granting or
denial of a motion to sever rests entirely within the discretion of the
court. See Zafiro, 506 U.S. at 541.
Hanhardt's motion for severance fails to make any argument or cite any
authority indicating that he is prejudiced by a joint trial. And, even if
Hanhardt had attempted an argument, the court believes he could not show
prejudice severe enough to require severance. Hanhardt provides no
support, either through argument or case law, as to why the motion to
sever should be granted. This failure to adequately develop the issues
can be considered a waiver. See United States v. Jones, 224 F.3d 621, 626
(7th Cir. 2000) (refusing to consider an undeveloped argument).
Additionally, Hanhardt's motion to sever is in violation of Local
Criminal Rule 47.1. Local Criminal Rule 47.1 provides that "a contested
motion shall be accompanied by a short, concise brief in support of the
motion, together with citations of authority. . . ." Local Criminal Rule
47.1. The failure to file a supporting brief allows either the court, sua
sponte, or an another party to move to strike the motion. See Local
Criminal Rule 47.1; See also United States v. McCarroll, No. 95 CR 48,
1996 WL 99442 at *4 (N.D. Ill. March 5, 1996). Nevertheless, out of an
abundance of caution, the court will address Hanhardt's motion to sever.
Without any guidance from Hanhardt as to the reasoning behind his
motion to sever, the court will examine potential reasons for a
severance. See Garner, 837 F.2d at 1413. It is quite possible that
several Defendants could present antagonistic defenses to that of
Hanhardt. Thus far Defendants have presented a united front to the
court, but the possibility for
divisiveness exists. Furthermore, Hanhardt
has not indicated any theory of defense, which makes even more difficult
the task of dealing with the potential for antagonistic defenses. See
United State v. Swanquist, 161 F.3d 1064, 1075 (7th Cir. 1998).
Antagonistic defenses are not prejudicial per se so as to require a
severance. See Zafir, 506 U.S. at 538. A defendant has the right to have
his theory of defense instruction submitted to the jury. See Swanquist,
161 F.3d at 1075. "Unless the defenses are so inconsistent that the
making of a defense by one party will lead to an unjustifiable inference
of another's guilt, or unless the acceptance of a defense precludes
acquittal of other defendants, it is not necessary to hold separate
trials." Colon, 1999 WL 77226 at *6 (citing United States v. Buljubasic,
808 F.2d 1260, 1263 (7th Cir. l987)). "Significantly, simple finger
pointing does not prevent the jury from making a reliable judgment
regarding guilt or innocence and, therefore, as a general rule is not
enough to require severance." Id. "Indeed, `[f]inger pointing is an
acceptable cost of the joint trial and at times is even beneficial
because it helps complete the picture before the trier of fact.'" Id.
Thus, the fact that several Defendants could make arguments at trial
implicating Hanhardt is not enough to grant severance.
Another potential reason for severance could be a claim of the massive
and complex nature of the evidence making it difficult for a jury to
consider the evidence as it relates to each defendant. See Gamer, 837
F.2d at 1413. Hanhardt, in previous filings, has indicated his belief
that the case is massive and complex. Although the amount of evidence is
large, it is not of an complex nature. In fact, Hanhardt's counsel, Mr.
Sullivan, in his motion for a continuance, argues that he is involved in
a 16-year dispute recently set for arbitration that has over six million
pages of documents. (Hanhardt's Mot. to Cont. at 7, ¶ f). Mr. Sullivan
has three colleagues to help with the 26, 653 involved in this case.
Additionally, although Hanhardt claims that this case is complex in
nature. The crimes charged in the indictments at their very base level
are nothing more than thefts. Any complexity comes from the extended
length of time that the conspiracy operated and the length of the
investigation to develop the voluminous evidence the Government has
disclosed. Again, this is not enough to raise the undue prejudice
required for severance.
Two other instances where severance could be claimed involve
inculpating statements and a gross disparity in the weight of the
evidence against each defendant. See Garner, 837 F.2d at 1413. Neither of
these instances offer a basis for severance in this case. None of
Defendants have offered any inculpating statements of any other
Defendants, much less Hanhardt. As to any disparity in the weight of the
evidence towards any defendant, none has ...