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United States v. Williams

United States District Court, E.D. Wisconsin

October 25, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DANTE WILLIAMS, Defendant.

          ORDER OVERRULING DEFENDANT'S OBJECTION TO JUDGE JONES'S ORDER DENYING MOTION TO SEVER (DKT. NO. 391)

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE.

         I. Procedural History

         In June 2017, the grand jury returned a two-count indictment charging twenty-one defendants-including Dante Williams-with conspiracies to possess with intent to distribute and to distribute heroin, cocaine and methamphetamine. Dkt. No. 1. The defendant was charged only in Count Two, which alleged that between January 1, 2016 and June 20, 2017, he conspired with defendants Fernando Reyes, Juan Avina, Bryan Banks, Tommie Cole and Alejandro Castaneda to distribute heroin and cocaine. Id. at 2.

         Count One charges seventeen defendants with conspiring to possess with intent to distribute heroin, cocaine and methamphetamine over roughly the same period covered by Count Two. Dkt. No. 1 at 1. Two of those seventeen defendants-Juan Avina and Bryan Banks-also were charged in the Count Two conspiracy. Id. at 2.

         In March of this year, ahead of the then-scheduled May 20, 2019 jury trial set by Judge J.P. Stadtmueller (to whom the case was assigned at the time), the defendant filed two motions-a motion to dismiss the indictment or, in the alternative, to adjourn the trial, dkt. no. 375, and a motion to sever Count Two from Count One, dkt. no. 376. Three other defendants filed similar motions. In the motion to dismiss, the defendant argued that he could not be ready for trial by May 20, 2019, because he had not yet received interpretations of the Spanish-language wiretap recordings which could impact his client and because of issues in his personal life. Dkt. No. 375. As for the motion to sever, the defendant “adopt[ed] . . . by reference” arguments made by co-defendant Kristian Yanez (charged only in Count One). Dkt. No. 376 at 1.

         Yanez argued that the indictment violated Federal Rule of Criminal Procedure 8(a), because there was no permissible basis for joining the charge in Count One with the charge in Count Two. Dkt. No. 372 at 3. He also argued that under Rule 8(b), it was impermissible for him to be joined with the four non-overlapping defendants charged in Count Two. Id. at 3-4. He “challenge[d] the government to cite a case allowing the joinder of multiple conspiracies in which each of the two conspiracies name defendants who aren't charged in the other and where the face of the indictment provides no over-arching link between those conspiracies.” Id. at 6. He concluded that “the absence of any alleged schematic connection between Yanez and the four Count Two defendants who aren't named in Count One means that the cited condition precedent [participation in a common scheme or plan] is lacking.” Id. at 8.

         In his motion to sever, the instant defendant did not re-frame the Rule 8 misjoinder argument in the context of his circumstances. Dkt. No. 376. He cited no authority, mentioned no cases. Defense counsel instead indicated that he'd done some research, and that “the gist of the research done so far indicates that the trial court's decision on a motion to sever is to be based in part on weighing the danger of unfair prejudice to defendants and also in part on judicial economic considerations such as duplication of proof in having to present the same evidence in multiple trials.” Id. at 2.

         The defendant then made his argument:

The defendant notes that, on the face of the indictment, thee [sic] is little indication that the evidence as to alleged Conspiracy One will be the same as the evidence in alleged Conspiracy Two. As is frequently true in drug distribution conspiracy cases, the discovery in this case is voluminous, and one would expect the introduction of evidence surrounding the allegations in each count to be very time consuming at trial. But, since these are allegedly two separate conspiracies, the Court can except there to be little, if any at all, overlap between the evidence related to Conspiracy One and that related to Conspiracy Two. Thus, severance will not be an inefficient use of the resources of the court or counsel.
Also, there is substantial danger that the introduction of an overwhelming amount of evidence related to Conspiracy One will unavoidably cause confusion in the juror's minds as to the distinction between Conspiracies One and Two, and that this will cause undue prejudice to [the defendant] and his defense. The jury will have to sift through untold amounts of evidence relative to the alleged criminal activities of fifteen defendants with whom [the defendant] has no alleged conspiratorial connection at all. But two of the defendants are allegedly part of both alleged conspiracies. This voluminous introduction of evidence of other, irrelevant, other alleged criminal acts not related to the allegations against [the defendant], during [the defendant's] trial, creates a strong risk of producing in the jurors' minds the impression that [the defendant] is somehow associated with criminal activity that he had nothing to do with.

Id. at 2-3.

         The government's response didn't mention or address the defendant's arguments, probably because the defendant relied on those made by co-defendant Yanez. Dkt. No. 378. As to Yanez, the government argued that neither he nor the other Count One defendants who sought severance “argue[d] that the disparity in the weight of evidence against some of the codefendants could deny him the right to a fair trial nor do they allege that trying both counts together would lead to jury confusion.” Id. at 5. The government asserted that any fear that evidence as to one defendant might “spill over” to another, or confuse the jury, “can be mitigated sufficiently when there is ample evidence to convict the moving defendant and when the jury is given instructions to assess each defendant and count individually.” Id. at 6, citing United States v. Alviar, 573 F.3d 526, 539 (7th Cir. 2009). The government concluded by stating that “[t]he two conspiracy counts in the indictment overlap and involve a common scheme or plan such that the defendants are properly joined.” Id.

         On March 22, 2019, Magistrate Judge David Jones issued several orders. One denied the defendant's motion to sever. Dkt. No. 381. Another recommended to Judge Stadtmueller that he deny the four pending motions to dismiss and left to Judge Stadtmueller's discretion whether to grant the requests to adjourn the trial. Dkt. Nos. 383-384.

         Regarding the defendant's motion to sever, Judge Jones reviewed the face of the indictment and concluded that the two counts overlapped temporally (both alleged a conspiracy that took place between January 1, 2016 and June 20, 2017), geographically (in the Eastern District of Wisconsin) and substantively (both alleged conspiracies to possess with intent to distribute heroin and cocaine), and that they had overlapping members (Avina and Banks). Dkt. No. 381 at 5. For that reason, Judge Jones concluded that Counts One and Two were not mis-joined under Rule 8(a). Id. For the same reason, Judge Jones concluded that the defendants were not mis-joined under Rule 8(b). Id. Finally, Judge Jones addressed the defendant's argument that the “overwhelming amount of evidence and the disparity in the weight of the evidence against defendants in Count One versus Count Two will lead to jury confusion.” Id. at 6. Judge Jones agreed with the government that that fact alone did not warrant severance, citing United States v. Serpico, 320 F.3d 691, 696 (7th Cir. 2003), and agreed that the trial court could mitigate any jury confusion with an instruction that the jury must consider the evidence separately as to each defendant. Id.

         On April 3, 2019, the defendant filed an objection “to the report and recommendation of the magistrate concerning defendant's pretrial motions.” Dkt. No. 391. He linked this objection to Dkt. No. 384, Judge Jones's ruling on his motion to dismiss the case or adjourn the trial (Dkt. No. 375), not Judge Jones's ruling on his motion to sever. (In fact, in his order denying the defendant's motion to dismiss/adjourn the trial, Judge Jones indicated in a footnote that the defendant had “filed a ‘bare bones' severance motion, see ECF No. 376, which” Judge Jones indicated he had addressed in a separate order. Dkt. No. 384 at 2 n.1). The objection focused on the various reasons that the defendant could not be ready for trial by the scheduled May 20, 2019 trial date. He referred to severance only once in the four-page objection; at the end of page 3, the defendant argued that the court could accommodate his request for a delay “in various ways, ” including granting his motion to sever Count One from Count Two and granting his motion to sever him from his co-defendants. Id. at 3. He did not assert that Judge Jones's ruling on his severance motion was erroneous; he did not even mention the ruling.

         As of the date the defendant filed the objection, the assigned trial judge was Judge Stadtmueller, the trial was scheduled for May 20, 2019, and all the defendants (except those who have not yet been arrested) were in trial posture. The status of the case has changed since then. In mid-April 2019, executed plea agreements began to appear on the docket, likely because Judge Stadtmueller had ordered that any defendant wishing to “resolve this case short of trial and remain eligible for acceptance of responsibility credit under applicable United States Sentencing Guidelines, while at the same time obviating the necessity of the parties preparing and filing a final pretrial report, ” had to file plea agreements by the close of business on April 15, 2019. Dkt. No. 356 at 7. In the past six months, five of the six defendants charged in Count Two-Reyes (dkt. nos. 497, 603), Avina (dkt. no. 414), Banks (dkt. no. 412), Cole (dkt. no. 415) and Castaneda (dkt. no. 435)-have pled guilty. The defendant is the only one of the six people charged in Count Two who remains in a trial posture. Though a couple of the seventeen defendants charged in Count One never have been arrested, all but two of the others have pled guilty. The only Count One defendants headed for trial are Luis Gomez and Pablo Hidalgo-Sanchez.

         The final pretrial conference ahead of the May 20, 2019 trial took place on May 14, 2019 before Judge Stadtmueller. Dkt. No. 480. The next day, the three defendants scheduled for trial-the defendant, Gomez and Hidalgo-Sanchez-filed motions asking Judge Stadtmueller to recuse himself. Dkt. Nos. 488 (Gomez), 489 (Hidalgo-Sanchez) and 492 (Williams). Defendant Hidalgo-Sanchez explained in detail the reason for the motions:

Following the final pretrial yesterday, Asst. United States Attorney Mario Gonzales informed the defendants by email, in vague terms, that the United States Marshal had developed information concerning an, “[A]n alleged threat made by Luis Gomez toward a federal judge and his family in the current case.” Further, according to Gonzales, “The magistrate and district judge were notified of the nature of the threat. I cannot comment further as the investigation is ongoing.”
In a telephone conversation, Gonzales said that there was currently no evidence that Hidalgo-Sanchez played any role in making this threat. However, both Gomez and Hidalgo-Sanchez are housed at the Kenosha County Detention Center. The government's theory of this prosecution is that Gomez ...

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