United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
January 6, 2017, Defendant Jesus Garcia filed a motion to
sever his upcoming trial from that of his Codefendant and
alleged coconspirator, Antonio Perez-Contreras. See
MOTION TO SEVER DEFENDANTS (SEALED AND OPPOSED) (Doc. 59)
(Motion). Perez-Contreras does not oppose the motion, but the
United States has responded in opposition. See
UNITED STATES' SEALED RESPONSE IN OPPOSITION TO DEFENDANT
JESUS MANUEL GARCIA'S MOTION TO SEVER DEFENDANTS (Doc.
69) (Response). Garcia filed a reply, see REPLY RE
MOTION TO SEVER DEFENDANTS (SEALED) (Doc. 76) (Reply), and
has since moved to stay proceedings in his case. MOTION TO
STAY PROCEEDINGS (SEALED AND UNOPPOSED) (Doc. No. 84) (Motion
to Stay). Having granted the Motion to Stay in the ORDER
entered March 14, 2017 (Doc. No. 87), the Court will grant
Garcia's Motion to sever his trial from that of
Garcia and Perez-Contreras are charged under a SECOND
SUPERSEDING INDICTMENT (Doc. 66) with Conspiracy, in
violation of 21 U.S.C. § 846, and two counts of
Distribution of 50 Grams and More of Methamphetamine and
Aiding and Abetting, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(A) and 18 U.S.C. § 2. Resp. at 1-2.
The indictment also charges Defendants separately.
Id. Perez-Contreras is charged with Alien in
Possession of a Firearm and Ammunition in violation of 18
U.S.C. §§ 922(g)(5) and 924(a)(2), Reentry of a
Removed Alien in violation of 8 U.S.C. §§ 1326(a)
and (b), and one count of Distribution of 50 Grams and More
of Methamphetamine and Aiding and Abetting in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A) and 18 U.S.C. §
2. Id. Garcia is charged with three counts of Felon
in Possession of a Firearm and one count of Felon in
Possession of a Firearm and Ammunition in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). Id. at
2. Both Defendants are currently in custody, and the trial is
set for April 3, 2017. Defendants were joined under Federal
Rule of Criminal Procedure 8(b) because they are alleged to
have participated in the same series of acts or transactions,
constituting the offenses charged in the indictment.
Id. The charges are based on a series of
transactions between Defendants and an undercover ATF agent
involving the sale of firearms and methamphetamine. Mot. at
Motion, Garcia argues that a joint trial will prejudice him
because he and Perez-Contreras have conflicting defenses, the
admission of statements by Perez-Contreras may violate his
confrontation rights, and there is more evidence implicating
Perez-Contreras, which could prejudice Garcia by inviting a
verdict of guilt by association. Id. at 2-9. The
United States responds that Defendants should be tried
together because they were indicted together and charged with
conspiracy. Resp. at 3-4. The United States contends that any
statements that are not admissible as statements of a
coconspirator can be redacted and limited as necessary to
remove any confrontation issues. Id. at 5-6. The
United States asserts that neither conflicting defenses nor a
disparity in evidence of culpability between coconspirators
are sufficiently prejudicial to justify severance.
Id. at 6-7.
is allowed, but not required, to sever a defendant's
trial from that of a codefendant when joinder appears to
prejudice any defendant or the government. Fed. R. Crim. P.
When considering a motion for severance, a trial court
engages in a three step inquiry. First, it must determine
whether the defenses presented are “so antagonistic
that they are mutually exclusive.” United States v.
Peveto, 881 F.2d 844, 857 (10th Cir.1989). Second,
because “[m]utually antagonistic defenses are not
prejudicial per se, ” a defendant must further show
“a serious risk that a joint trial would compromise a
specific trial right ... or prevent the jury from making a
reliable judgment about guilt or innocence.” Zafiro
v. United States, 506 U.S. 534, 539 (1993). Third, if
the first two factors are met, the trial court exercises its
discretion and “weigh[s] the prejudice to a particular
defendant caused by joinder against the obviously important
considerations of economy and expedition in judicial
administration.” Peveto, 881 F.2d at 857.
United States v. Pursley, 474 F.3d 757, 765 (10th
Cir. 2007). Even when prejudice is shown, the proper relief
is within the discretion of the district court.
Zafiro, 506 U.S. at 539. “[W]hen defendants
properly have been 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
case, conflicting defenses or a disparity in evidence might
not justify separate trials. See Zafiro, 506 U.S. at
540 (“[I]t is well settled that defendants are not
entitled to severance merely because they may have a better
chance of acquittal in separate trials.”). But the
Court need not rely on those factors to determine prejudice.
Because proceedings against Garcia have been stayed through
the grant of a motion that does not implicate
Perez-Contreras, the Court finds that joinder will prejudice
Perez-Contreras by unnecessarily delaying his trial.
Additionally, the public has an “interest in bringing
prompt criminal proceedings.” United States v.
Toombs, 574 F.3d 1262, 1268 (10th Cir. 2009).
Perez-Contreras has been in custody since his July 26, 2016
arrest, and will remain in custody pending trial.
See ORDER OF DETENTION (Doc. No. 36). The Court
therefore concludes that severance is required to preserve
Perez-Contreras' constitutional right to a speedy trial.
THEREFORE ORDERED that:
MOTION TO SEVER DEFENDANTS (SEALED AND OPPOSED) (Doc. 59) is
existing pretrial and trial settings remain in effect as to
Defendant Perez-Contreras: The Call of the Calendar is set
for March 23, 2017, at 11:00 a.m. and jury selection and
trial are set for April 3, 2017, at 1:30 p.m.; and
Pretrial and trial settings are vacated as to Defendant Jesus
Garcia, and will be reset once the stay of ...