The Court of Appeals upheld a trial court’s decision not to sever the defendant’s joint trial with co-defendants accused of slaying a drug dealer and his family

This case does not involve white collar crime. But it involves the issue of a joint trial with overwhelming bad evidence against the co-defendant, so it is still important. In U.S. v. Lopez this defendant appealed her drug trafficking conspiracy conviction. She was tried with two co-defendants, which were charged with the same drug conspiracy but the charges against the co-defendants included murder charges. Lopez appealed the denial of her motion for severance, claiming prejudice from having her trial along side the other two.

Another drug dealer, an associate of the two co-defendants, was apparently heading north from Miami along the Florida turnpike with his wife and two children in the car. The co-defendants were driving on the turnpike at the same time and communicated with each other by cell phone along the way. Both cars stopped near the Ft Pierce exit in the early hours of the morning along the side of the highway. There, the co-defendants robbed the victim drug dealer of 15 kilos of cocaine. The co-defendants drive off with the victim drug dealer’s car, but not before shooting and killing, the drug dealer, his wife and their two children. The two co-defendants were charged with a carjacking, four counts of murder. The murder committed by two co-defendants was particularly ruthless. This crime received much publicity in Miami.

The federal appellate court outlined the general body of law dealing with joint trials and emphasizing the heavy burden on the defendant to justify separate trials. The general rule on joint trials is that defendants indicted together are usually tried together. That rule is more pronounced in conspiracy cases where the principal is “defendants charged with a common conspiracy should be tried together.” To warrant a severance, a defendant must show compelling prejudice under Rule 14 (a) of the Federal Rules of Criminal Procedure. Compelling prejudice means a joint trial would actually prejudice the defendant and that a severance is the only remedy for that prejudice, such that a jury instruction or any other remedy will not cure the prejudice. The appellate court made this observation about the “prejudice.” “Anything that increases the likelihood of a conviction ‘prejudices’ the defendant in the ordinary sense of the word, but in severance law ‘prejudice’ is not used in the ordinary sense of the word.”

• He defendant gave these reasons for a severance:
• Prolonged jury selection;
• Requirement that they make unanimous agreement for peremptory strikes;
• Capital charges mean the co-defendants have to bring out irrelevant matters;
• Hours of medical autopsy and gruesome photos;
• One of the co-defendants’ attorney conceded to the jury that were as a drug conspiracy and defendant was the head of it.

The appellate court acknowledged the best argument was that a joint trial allowed for the introduction of evidence that either of the two co-defendants murdered the fellow drug dealer his wife and children. The court agreed that no attorney representing a defendant charged with a crime would want this evidence before a jury at their trial even if the jury is instructed they had nothing to do with it. The appellate court found no prejudice because the trial court repeatedly instructed the jury to consider evidence against only those defendants against whom it is implicated and to assess guilty or innocence separately.

As for the peremptory challenges, the district court has the discretion to allow additional peremptory challenges, which it did. It may allow the defendants to exercise those peremptory challenges separately or jointly.