Severance granted based on disparity in weight of evidence
Practitioners in this area are wearily familiar with the Zafiro standard for granting severance under FRCP 14: there must be a serious risk that a joint trial will compromise a specific trial right of one of the defendants, or prevent the jury from reaching a reliable verdict. The risk of spillover is not enough, because juries are presumed able to compartmentalize evidence, and inconsistent defenses are not sufficient, since the moving defendant must show that there are “antagonistic” defenses at play, which are irreconcilable and mutually exclusive. See Zafiro v. United States, 506 U.S. 534 (1993).
The Zafiro formulation, and the resulting gloss placed on it by the courts of appeal, leaves defense attorneys with a markedly poor record of successful severance motions. So, when such a motion succeeds, it is worth noting and citing in subsequent motions.
A successful severance argument was recently made in United States v. Troutman, 546 F. Supp.2d 610 (N.D. Ill. 2008). Chicago Alderman Troutman was charged in a years-long scheme under 18 U.S.C. §§ 1341, 1346 with city employee Boone to solicit and accept payments from real estate developers in exchange for various approvals. Moving defendant Gilbert was identified in the indictment as an acquaintance of the alderman.
Gilbert was not charged in the overarching first count, and in only one of fifteen counts in the indictment. Gilbert was charged with a single episode of soliciting a payment from a developer.
Granting the motion by Gilbert to sever his case from that of the other defendants, the district court held that he had shown a “gross disparity” in the evidence which would likely prejudice him despite any limiting instructions. Since Gilbert was charged only in relation to one illegal act, much of the evidence as to the other acts in the indictment would not be admissible in a separate trial for Gilbert. Finally, severance of Gilbert would only “minimally lengthen” trial time since his separate trial was not estimated to exceed eight days in length.
