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United States v. Harris

United States District Court, E.D. Wisconsin

December 7, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DERRICK L. HARRIS, Defendant.

          DECISION AND ORDER ON DEFENDANT'S PRETRIAL MOTIONS AND RECOMMENDATION ON DEFENDANT'S MOTION TO CONTINUE THE TRIAL DATE

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE.

         On October 3, 2017, the grand jury returned a three-count indictment against defendant Derrick L. Harris and three other defendants. Harris is charged with conspiracy to engage in conduct that caused damage to the tangible property of A.V. and threatened to cause bodily injury to A.V., in retaliation against A.V. for providing information to a law enforcement officer related to the commission of a drug conspiracy, in violation of 18 U.S.C. § 1513(f). Harris is also charged with attempt to kill A.V. in retaliation for A.V. providing information to law enforcement, in violation of 18 U.S.C. § 1513(a)(1)(B) and 2. Finally, Harris is charged with using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and 2. Harris was arraigned on the charges and entered a plea of not guilty. Final Pretrial conference and jury trial are scheduled before the Honorable Judge Stadtmueller on December 27, 2017 and January 2, 2017, respectively.

         Before me are Harris' pretrial motions. First, Harris moves the Court to order the government to produce certain discovery listed in his motion. (Docket # 38.) Second, Harris requests that his case be severed from that of his co-defendants. (Docket #39.)[1] Third, Harris moves to continue the trial date. (Docket # 56.) For the reasons discussed below, I will deny Harris' motion for discovery as moot and deny Harris' motion for severance without prejudice. I recommend that Harris' motion to continue the trial date be granted.

         BACKGROUND

         As noted above, a grand jury in this district returned a three-count indictment against Harris, along with three other defendants, Jose Lazcon, Rashawn Bumpus, and Michael Bonds. The indictment alleges that on or about August 8, 2017, the defendants knowingly conspired with one another to engage in conduct that caused damage to the tangible property of A.V. and threatened to cause bodily injury to A.V., in retaliation against A.V. for providing information to a law enforcement officer related to the commission of a Federal offense, namely the drug conspiracy charged in United States v. Tirado, et al., Case No. 16-CR-168. Harris and Lazcon are also charged with attempt to kill A.V. in retaliation for A.V. providing information to a law enforcement officer relating to the commission of a Federal offense and with using a firearm during a crime of violence.

         ANALYSIS

         1. Motion for Discovery

         Harris filed a motion for discovery requesting the following: (1) the opportunity to inspect the informant's vehicle; (2) the opportunity to examine the defendant's cell phone; (3) all discovery in United States v. Tirado, Case No. 16-CR-168; (4) Giglio v. U.S., 405 U.S. 150 (1972) material for all government witnesses; (5) evidence showing that the defendant was part of a conspiracy to intimidate witnesses; (6) exculpatory evidence; and (7) expert tests, examinations, or reports. (Docket # 38.) The government opposes the motion, arguing that Harris failed to comply with Criminal L.R. 16 (E.D.Wis.), which provides that any motion for discovery must be accompanied by a written statement that the movant has in good faith conferred or attempted to confer with the government. Harris replied, stating that a conference with the government was held on November 27, 2017. (Docket # 51.)

         It appears from Harris' reply brief that the government responded to all of his inquiries. Thus, Harris' motion for discovery is denied as moot.

         2. Motion for Severance

         Under Fed. R. Crim. P. 8(b), two or more defendants may be charged in a single indictment if they 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. Harris seems to argue that joinder is improper because “there will be a complete failure of proof that Derrick Harris had any knowledge of the C.I.'s role as an informant in a federal drug conspiracy.” (Docket # 39 at 3.) The test for proper joinder, however, is what the indictment charges, not what the evidence shows. United States v. Marzano, 160 F.3d 399, 401 (7th Cir. 1998). There is a presumption that co-conspirators who are indicted together are appropriately tried together. United States v. Smith, 995 F.2d 662, 670 (7th Cir. 1993). Harris has not overcome the presumption of joinder.

         However, Fed. R. Crim. P. 14 allows the court to sever defendants properly joined under Rule 8. Rule 14(a) provides: “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.” When defendants have been properly joined under Fed. R. Crim. P. 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). It is the defendant's burden to demonstrate a strong showing of prejudice. United States v. Moya-Gomez, 860 F.2d 706, 767-68 (7th Cir. 1988). A mere showing of some prejudice will not warrant severance. United States v. Madison, 689 F.2d 1300, 1305 (7th Cir. 1982). Rather, the defendant must show that he is unable to obtain a fair trial without severance. United States v. Thornton, 197 F.3d 241, 255 (7th Cir. 1999).

         The Seventh Circuit has outlined four settings in which actual prejudice might result from a denial of a motion for severance: (1) conflicting and irreconcilable defenses; (2) a massive and complex amount of evidence that makes it almost impossible for the jury to separate evidence as to each defendant; (3) a co-defendant's statement that incriminates the defendant; and (4) a gross disparity of evidence between the defendants. United States v. Clark, 989 F.2d 1490, 1499 (7th Cir. 1993).

         In this case, Harris argues that severance is proper because the government's evidence against Harris' involvement in the conspiracy to attack the informant is weak. (Docket # 50 at 4.) Harris further argues that the government will present evidence that Lazcon was aware of a large meth conspiracy involving a vicious street gang. ...


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