United States District Court, S.D. Florida
ALTMAN UNITED STATES DISTRICT JUDGE.
CAUSE came before the Court on the Motion for
Severance of Defendants, filed on April 30, 2019 by the
Defendant, Christopher Grant Proby (“Motion”)
[ECF No. 47]. The United States of America (the
“Government”) filed its Response on May 3, 2019
(“Response”) [ECF No. 51]. Proby filed his Reply
on May 6, 2019 (“Reply”) [ECF No. 52]. The Court
held a hearing on the Motion on May 7, 2019, at which both
parties made their oral arguments. The Court has carefully
considered the parties' written submissions, the
arguments made at the hearing, and the applicable law. For
the reasons stated in open court and in this Order, the
Motion is hereby DENIED.
February 1, 2019, Proby was charged by Indictment with three
(3) violations of federal law: In Count 1, Proby and two
co-Defendants, Jamal Lamar Head and Keon Travy Glanton, are
charged with conspiring to commit Hobbs Act robberies; in
Count 4, Proby, Head, and Glanton are charged with committing
a Hobbs Act robbery that occurred on July 11, 2018; and, in
Count 5, Proby, Head, and Glanton are charged with
brandishing a firearm in furtherance of the July 11th robbery
(the “Indictment”) [ECF No. 1 at 1-4].
Indictment separately charges Head with committing a Hobbs
Act robbery on July 9, 2019 (Count 2) and with brandishing a
firearm in furtherance of that robbery (Count 3).
Id. at 2-3. Count 6 of the Indictment charges Head
and Glanton with committing a Hobbs Act robbery on July 12,
2019. Id. at 4-5. Count 7 charges Head and Glanton
with kidnapping the victim of the July 12th robbery in a
manner that resulted in the victim's death. Id.
at 5. Count 8 charges Head and Glanton with carjacking the
victim of the July 12th robbery in a manner that resulted in
the victim's death. Id. at 6. Count 9 charges
Head and Glanton with discharging a firearm in furtherance of
the July 12th robbery. Id. In Count 10, the
Indictment charges Head and Glanton with causing the death of
a victim in the course of committing the gun crime charged in
Count 9. Id. at 7. Count 11 charges Head, a
convicted felon, with the unlawful possession of a firearm
and ammunition. Id. at 7. And Count 12 charges
Glanton with arson. Id. at 8. Counts 7, 8, and 10
each carry the possibility of a death sentence. Id.
short, the Government alleges that, in July of 2018, Proby,
Head, and Glanton participated in a conspiracy to lure
unsuspecting plumbers to abandoned residences, where the
plumbers were robbed at gunpoint. In each of the robberies,
the Defendants used a female- sometimes a minor-to place the
service call to the plumbing company. During the final
robbery, in which Proby did not participate, the
plumber who responded to the call was robbed, kidnapped,
carjacked, and murdered.
Rule of Criminal Procedure 8(b) provides as follows:
(b) Joinder of Defendants. The indictment or information may
charge 2 or more defendants 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. The defendants may be charged in one or more counts
together or separately. All defendants need not be charged in
Eleventh Circuit has repeatedly held that “the rule
about joint trials is that ‘defendants who are indicted
together are usually tried together.'” United
States v. Lopez, 649 F.3d 1222, 1234 (11th Cir. 2011)
(quoting United States v. Browne, 505 F.3d 1229,
1268 (11th Cir. 2007)); see also, e.g., Zafiro
v. United States, 506 U.S. 534, 537-38 (1993)
(“There is a preference in the federal system for joint
trials of defendants who are indicted together.”);
United States v. Magdaniel-Mora, 746 F.2d 715, 718
(11th Cir. 1984) (“To repeat the familiar, persons
indicted together ordinarily should be tried
together.”). “That rule is even more pronounced
in conspiracy cases where the refrain is that
‘defendants charged with a common conspiracy should be
tried together.'” Lopez, 649 F.3d at 1234
(quoting United States v. Beale, 921 F.2d 1412, 1428
(11th Cir. 1991)); see also United States v. Baker,
432 F.3d 1189, 1236 (11th Cir. 2005).
Eleventh Circuit has made clear that “[j]oint trials
play a vital role in the criminal justice system and serve
important interests: they reduce the risk of inconsistent
verdicts and the unfairness inherent in serial trials,
lighten the burden on victims and witnesses, increase
efficiency, and conserve scarce judicial resources.”
Lopez, 649 F.3d at 1234. Similarly, as the Supreme
Court has observed, “[i]t would impair both the
efficiency and the fairness of the criminal justice system to
require . . . that prosecutors bring separate proceedings,
presenting the same evidence again and again, requiring
victims and witnesses to repeat the inconvenience (and
sometimes trauma) of testifying, and randomly favoring the
last-tried defendant who has the advantage of knowing the
prosecution's case beforehand.” Richardson v.
Marsh, 481 U.S. 200, 210 (1987).
be sure, the rule about a joint trial in conspiracy cases is
not quite ironclad.” Lopez, 649 F.3d at 1234
(quoting Fed. R. Crim. P. 14(a)) (“If the joinder of .
. . defendants in an indictment . . . appears to prejudice a
defendant . . . the court may . . . sever the defendants'
trials, or provide any other relief that justice
requires.”). But, as the Eleventh Circuit has held,
“[t]he exceptional circumstances justifying a deviation
from the rule” that defendants who are indicted
together should be tried together “are few and far
this reason, to justify a severance under Rule 14, the
Defendant must first “carry the ‘heavy burden of
demonstrating that compelling prejudice would result'
from a joint trial.” Id. (quoting
Browne, 505 F.3d at 1268 (alteration adopted)).
“To show compelling prejudice, a defendant must
establish that a joint trial would actually prejudice the
defendant and that a severance is the only proper remedy for
that prejudice-jury instructions or some other remedy short
of severance will not work.” Id. In this
respect, the Eleventh Circuit has insisted that “[t]he
potential for prejudice from a joint trial is not enough, and
not just any kind of prejudice will do.” Id.
So, for instance, “[m]utually antagonistic defenses are
not prejudicial per se.” Zafiro, 506 U.S. at
538; see also United States v. Blankenship, 382 F.3d
1110, 1122 (2004) (“[Zafiro] specifically
rejected the notion that defendants who have contradictory
defenses are inherently prejudiced.”). And “it is
well settled that defendants are not entitled to severance
merely because they may have a better chance of acquittal in
separate trials.” Zafiro, 506 U.S. at 540.
“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.”
Lopez, 649 F.3d at 1234.
a defendant seeking a severance must establish “a
serious risk that a joint trial would either
‘compromise a specific trial right of one of the
defendants' or ‘prevent the jury from making a
reliable judgment about guilt or innocence' even if
limiting instructions are given.” Id. at
1234-1235 (quoting United States v. Thompson, 422
F.3d 1285, 1292 (11th Cir. 2005)); cf. United States v.
Talley, 108 F.3d 277, 280 ...