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United States of America v. Terrence Brown and

December 29, 2010

UNITED STATES OF AMERICA,
v.
TERRENCE BROWN AND LYNN ROWE.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

For the reasons stated below, Defendant Rowe's motion to sever [96] is respectfully denied.

I. Background

On August 13, 2009, Defendants Lynn Rowe and Terrence Brown were charged together in a superseding indictment with one count of knowingly and intentionally attempting to posses with intent to distribute 5 kilograms or more of cocaine in violation of Title 21, United States Code, § 841(a)(1) (Count II). Defendant Brown also was charged with one count of conspiracy under 21 U.S.C. § 846 (Count I) and one count of possessing a firearm in furtherance of the drug-trafficking crime alleged in Count Two in violation of 18 U.S.C. § 924(c) (Count III).

The allegations in Counts II and III of the superseding indictment arise from a single transaction. The indictment alleges that on December 4, 2008, Rowe was a passenger in a blue Dodge Durango that was driven by Brown. The two traveled together to the area of 31st Street and Normal Street in Chicago to meet with an individual who, unbeknownst to Brown and Rowe was an undercover DEA officer, and to take delivery of 10 kilograms of cocaine. During the meeting, the undercover officer retrieved a bag containing 10 kilograms of a cocaine look-alike substance, entered the rear driver side of the Durango, and placed the bag on the back seat. According to the indictment, as Brown reached for a bag containing approximately $14,740 in cash, Rowe exited the front passenger side of the Durango, entered the rear passenger side door, and sat next to the undercover officer. The indictment further alleges that once in the backseat, Rowe looked inside the bag containing the look-alike kilograms and appeared to be counting the kilograms. Brown then handed Rowe the bag of cash, which Rowe, in turn, handed to the undercover officer. After the officer took the cash and exited the Durango, Brown and Rowe were arrested. During a search of the vehicle, law enforcement recovered a handgun.

II. Analysis

A. Legal Standard

Defendant Rowe acknowledges that joinder of Defendants under Fed. R. Crim. P. 8 was proper, but moves for severance pursuant to Fed. R. Crim. P. 14: "If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires." Fed. R. Crim. P. 14.

Under Seventh Circuit law, "[t]here is a particularly strong preference for a single trial with co-defendants who have been jointly indicted." United States v. Souffront, 338 F.3d 809, 828 (7th Cir. 2003) (quoting Zafiro v. United States, 506 U.S. 534, 537 (1992)). One trial involving all defendants is preferred over separate trials because joint trials reduce the burdens on the judiciary, prosecutors, and witnesses, avoiding the extra expenses incurred in multiple trials. United States v. Blassingame, 197 F.3d 271, 286 (7th Cir. 1999). In short, joint trials "promote efficiency and 'serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.'" Zafiro, 506 U.S. at 537 (quoting Richardson v. Marsh, 481 U.S. 200, 209-10 (1987)). Accordingly, in all but the "most unusual circumstances," the risk of prejudice arising from a joint trial is "outweighed by the economies of a single trial in which all facets of the crime can be explored once and for all." Blassingame, 197 F.3d at 286.

When defendants have been properly joined 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, 506 U.S. at 539. As the Seventh Circuit repeatedly has explained, "limiting instructions * * * often will suffice to cure any risk of prejudice." United States v. Warner, et al., 498 F.3d 666, 700-701 (7th Cir. 2007) (quoting Zafiro, 506 U.S. at 539-41). In reviewing a district judge's decision on severance, the Seventh Circuit has stated that "actual prejudice" does not exist just because "separate trials would have given a defendant a better opportunity for an acquittal." United States v. Rollins, 301 F.3d 511, 518 (7th Cir. 2002). Rather, the defendant must have been "deprived of his right to a fair trial." Id.

B. Application of Standard to Circumstances of This Case

Rowe's primary argument relies on the Supreme Court's decision in Bruton v. United States, 391 U.S. 123 (1968). In Bruton, the Supreme Court held that a defendant's Sixth Amendment right to confront witnesses against him is violated when the confession of a non-testifying co-defendant, in which the defendant is expressly implicated as a participant in the crime, is admitted in the joint trial of the two defendants, even if the jury is instructed to consider the confession only against the confessing co-defendant. Id. at 135-36; Souffront, 338 F.3d at 829. Here, on December 4, 2008, following his arrest, Brown gave a statement to law enforcement, which dealt predominantly with Brown's own conduct. The only portion of Brown's statement concerning Rowe consisted of Brown's claim that he did not know why Rowe came to the December 4 transaction and that he did not know why Rowe entered the backseat of the vehicle.

Rowe contends that his trial should be severed because the admission of Brown's post-arrest statement could prejudice him. However, Brown's post-arrest statement does not inculpate Rowe at all; rather, if credited by the trier of fact, it would tend to exculpate Rowe. But more to the point, the Government has indicated both in its response to Rowe's motion to sever and at the final pretrial conference that it does not intend to offer that portion of Brown's statement at trial. In fact, the Government has filed a motion in limine in April 2010 seeking to exclude that portion of Brown's statement at trial.*fn1 Thus, there is no Bruton issue with respect to Brown's post-arrest statement.

Rowe's motion and reply brief also allude to subsequent statements made by Brown pursuant to a proffer agreement with the Government. The Government has indicated, both in its response brief and at the final pretrial conference, that is does not intend to offer evidence of these statements in its case-in-chief. Pursuant to the terms of the proffer agreement, the Government may offer evidence of Brown's proffer-protected statements at trial for impeachment or in rebuttal testimony only if Brown testifies contrary to the substance of the proffer, or otherwise presents a position inconsistent with the proffer. However, if Brown chooses to testify at trial, Bruton is not implicated because Rowe's Confrontation Clause rights would be satisfied by the opportunity to cross-examine Brown.*fn2 See United States v. Clark, 989 F.2d 1490, 1498 (7th Cir. 1993). Because there is no Bruton issue ...

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