United States District Court, E.D. Wisconsin
DECISION AND ORDER ON DEFENDANT'S PRETRIAL
MOTIONS AND RECOMMENDATION ON DEFENDANT'S MOTION TO
CONTINUE THE TRIAL DATE
JOSEPH UNITED STATES MAGISTRATE JUDGE.
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.
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.) 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
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.
Motion for Discovery
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.)
appears from Harris' reply brief that the government
responded to all of his inquiries. Thus, Harris' motion
for discovery is denied as moot.
Motion for Severance
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.
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).
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).
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. ...