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United States v. Proby

United States District Court, S.D. Florida

June 4, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
CHRISTOPHER GRANT PROBY, Defendant.

          ORDER

          ROY K. ALTMAN UNITED STATES DISTRICT JUDGE.

         THIS 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.

         BACKGROUND

         On 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].

         The 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. at 10-15.

         In 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.

         THE LAW

         Federal 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 each count.

         The 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).

         The 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).

         “To 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 between.” Id.

         For 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.

         In sum, 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 ...


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