United States District Court, D. Nebraska
R. Zwart, United States Magistrate Judge.
Morrow has moved to sever his trial from that of his
codefendants. (Filing No. 113). Morrow argues that
after hearing the evidence against the codefendants, a jury
will be unable to render a verdict as to Morrow based solely
on the evidence relevant to him. He also argues that
admission of his statement to law enforcement at a joint
trial will support a Bruton challenge. For the
reasons stated below, the motion will be denied.
of the superseding indictment alleges Morrow's
codefendants murdered a person while engaging in armed
robbery. Count II alleges all the defendants committed the
armed robbery referenced in Count I. (Filing No.
Morrow requests relief under Rule 14 of the Federal Rules of
Criminal Procedure. To warrant severance under Rule 14, a
defendant must show “real prejudice, ” that is,
“something more than the mere fact that he would have
had a better chance for acquittal had he been tried
separately.” United States v. Mickelson, 378
F.3d 810, 817 (8th Cir. 2004) (quoting United States v.
Oakie, 12 F.3d 1436, 1441. (8th Cir. 1993) (citing
United States v. Adkins, 842 F.2d 210, 211-12 (8th
Cir.1988)). A defendant can prove real prejudice to his right
to a fair trial by showing that either his affirmative
defenses are irreconcilable with that of the codefendants, or
that the jury will be unable to compartmentalize the evidence
as it relates to the separate defendants. Mickelson,
378 F.3d at 817 (citing United States v. Washington,
318 F.3d 845, 858 (8th Cir. 2003); United States v.
Jackson, 64 F.3d 1213, 1217 (8th Cir. 1995).
Morrow is not charged with felony murder, he is jointly
charged with his codefendants in committing the felony (armed
robbery) underlying the felony murder charge. So, the
evidence supporting the murder charge (Count I) also supports
the robbery charge against all the defendants (Count II). A
motion for severance may be denied even though the defendant
argues that “not every joined defendant has
participated in every offense charged, ” or that
“there is varying strength in the evidence against each
defendant.” United States v. Lee, 374 F.3d
637, 646 (8th Cir. 2004) (internal citations omitted).
Moreover, defendants jointly indicted on similar evidence
from the same or related events should be tried together,
even if each defendant did not participate in or was not
charged with each offense. United States v. Gravatt,
280 F.3d 1189, 1191 (8th Cir. 2002).
argues that if he is not tried separately, the substantial
and emotionally charged evidence against Morrow's
codefendants will taint the jury. “It will be
impossible for the jury to parse out the facts and acts
attributable to the co-Defendants without
‘fragging' Mr. Morrow in the process.”
(Filing No. 114, at CM/ECF p. 2). This conclusory
statement is not sufficient to support a finding of
prejudice. Moreover, “[s]everance is not required
merely because evidence that is admissible only against some
defendants may be damaging to others.”
Mickelson, 378 F.3d at 817. And even when a
defendant can demonstrate potential prejudice if he is
jointly tried with the codefendants, “[t]he risk of
prejudice posed by joint trials is best cured by careful and
thorough jury instructions.” Mickelson, 378
F.3d at 817. “[J]uries are presumed to follow their
instructions.” Zafiro v. U.S., 506 U.S. 534,
Morrow's motion to sever because a jury will not be able
to compartmentalize the evidence presented as to Morrow will
Bruton v. United States, 391 U.S. 123 (1968), Morrow
argues a joint trial with the codefendants will violate the
Sixth Amendment. (Filing No. 114, at CM/ECF p. 2).
In Bruton, the Court held that the admission of a
non-testifying codefendant's confession that expressly
implicated Bruton violated Bruton's “right of
cross-examination secured by the Confrontation Clause of the
Sixth Amendment, ” even when the district court gave
the jury limiting instructions to consider the confession
against only the confessing codefendant.
Morrow argues that his statement to law enforcement
“implicates his co-defendants in the activities of July
30th, and if he chooses not to testify, his co-defendants
would have a legitimate motion to sever.” (Filing
No. 114, at CM/ECF p. 2). Morrow lacks standing to argue
that his codefendants' rights under the Confrontation
Clause may be violated if Morrow's trial is not severed.
Even assuming Morrow's own rights under Bruton
may be implicated by a joint trial, when a statement to law
enforcement does not incriminate a defendant on its face, and
the statement becomes incriminating “only when linked
with evidence introduced later at trial, ” a limiting
instruction is sufficient to avoid a violation of the
Confrontation Clause. United States v. Gayekpar, 678
F.3d 629, 637 (8th Cir. 2012). And if a defendant's
redacted confession does not refer directly to a codefendant
and becomes incriminating only in combination with other
evidence, “the Constitution permits the normal
presumption that a jury will follow an instruction to
disregard the confession when considering a verdict for the
codefendant.” Gayekpar, 678 F.3d at 637.
redacting the names of Morrow's codefendants, the court
has reviewed Morrow's statement, (Filing No.
119-1). The court finds that the statement, presented in
a redacted format, can be offered at trial without implicated
the defendants' rights under the Confrontation Clause.
Morrow's motion to sever based on Bruton will be
IT IS ORDERED that Defendant Morrow's motion to sever,