United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court on Defendants' renewed
motions to sever. See Defendant's Motions to
Sever Defendants and Counts by Providing Officially
Exculpatory Testimony (Doc. 215; Renewed Motion), filed on
August 27, 2019; Third Motion to Sever the Trial of Reginald
Brown from the Trial of Katrina Brown and Memorandum of Law
(Out of Time) (Doc. 224; Third Motion), filed on August 29,
2019. The government filed a response in opposition to both
Motions on August 29, 2019. See United States'
Memorandum Opposing Defendants' Motions to Sever
Defendants and Counts (Doc. 225; Response). Thus, the Motions
are ripe for review.
23, 2018, a federal grand jury returned a 38-count Indictment
(Doc. 1; Indictment) against Defendants Katrina Brown and
Reginald Brown. Count One of the Indictment charges both
Defendants with conspiring to commit mail and wire fraud in
violation of 18 U.S.C. § 1349. See Indictment
at 1-39. Counts Two through Fourteen charge both Defendants
with aiding and abetting mail fraud in violation of 18 U.S.C.
§§ 1341 and 2. Id. at 40-44. Counts
Fifteen through Twenty-Seven charge both Defendants with
aiding and abetting wire fraud in violation of 18 U.S.C.
§§ 1343 and 2. Id. at 44-47. Counts
Twenty-Eight through Thirty-Three charge both Defendants with
money laundering in violation of 18 U.S.C. §§ 1957
and 2. Id. at 48-50. Counts Thirty-Four and
Thirty-Five charge only Katrina Brown with attempted bank
fraud in violation of 18 U.S.C. §§ 1349 and 1344.
Id. at 50-55. Counts Thirty-Six and Thirty-Seven
charge only Katrina Brown with making false statements to a
federally insured financial institution in violation of 18
U.S.C. § 1014. Id. at 55-57. Finally, Count
Thirty-Eight charges only Reginald Brown with failing to file
a Form 1040 in violation of 18 U.S.C. § 1014.
Id. at 57-58.
Court has discussed in prior orders, the Indictment alleges
that in 2011, Basic Products, LLC and Cowealth, LLC obtained
a $2, 652, 600 Small Business Administration loan from lender
BizCapital BIDCO I, LLC. See Indictment at 1-4,
7-11. According to the Indictment, Katrina Brown served as a
principal for Basic Products and Cowealth, which were both
associated with her father's barbecue sauce business, KJB
Specialties, LLC. Id. at 1-3. The general purpose of
the SBA loan was to finance the purchase of inventory,
equipment, and a manufacturing facility for the barbecue
sauce business, as well as to provide working capital for the
business. See id. at 7-8. Because the SBA loan
authorization specified how the loan funds could be spent,
BizCapital required Basic Products to submit invoices
reflecting its expenditures before authorizing any loan
disbursements. Id. at 7-9.
Indictment alleges that, in mid to late 2013, when Basic
Products failed to perform as projected, Katrina Brown, with
the assistance of Reginald Brown, developed a fraudulent
scheme to induce BizCapital to disburse the loan funds.
Id. at 10-12. Specifically, the Indictment alleges
that Katrina Brown created two shell entities (A Plus
Training and RB Packaging), for which Reginald Brown served
as the principal and opened bank accounts. Id. at 2,
10-13. Katrina Brown is then alleged to have invoiced A Plus
Training and RB Packaging for services that were never
performed and for products that were never sold, and then to
have emailed those invoices to BizCapital for payment.
Id. at 2, 10-13. The Indictment alleges that, in
reliance on those fraudulent invoices, BizCapital mailed
checks directly to A Plus Training and RB Packaging in the
amount reflected in the invoices, forming the basis of the
counts charging mail fraud. See id. at 14, 40-44. In
addition, the Indictment alleges that Reginald Brown
deposited the checks into the A Plus Training and RB
Packaging bank accounts, forming the basis of the counts
charging wire fraud. Id. at 14, 44-47. The
Indictment further alleges that Reginald Brown later withdrew
the funds from the A Plus Training and RB Packaging bank
accounts, and transferred the funds to Katrina Brown, via
cash, check, or cashier's check, who then deposited the
funds into the Basic Products bank account, forming the basis
of the counts charging money laundering. Id. at
14-15, 48-49. The Indictment alleges that both Defendants
retained some of the funds for various purposes, including
for personal use. Id. at 15.
Indictment also alleges that from October 2015 through
November 2016, Katrina Brown attempted to defraud a federally
insured financial institution to obtain a merchant advance
loan by submitting altered bank statements from Basic
Products and KJB Specialties. Id. at 50-56. Finally,
the Indictment alleges that Reginald Brown failed to file a
2014 tax return. Id. at 56-57.
Defendants' arraignment on June 25, 2018, the Court
granted Defendants' unopposed motion to continue the
trial to the September 2018 trial term, see Order
(Doc. 44), and set a July 31, 2018 motions deadline.
See Scheduling Order (Doc. 45) (setting July 31,
2018, as the deadline for all “dispositive motions,
motions to suppress and other non-discovery motions”).
At a status conference on August 14, 2018, the Court granted
Defendants' unopposed motion to continue the trial again,
this time to February 4, 2019. See Clerk's
Minutes (Doc. 55). The Court also extended the motions
deadline to October 19, 2018. Id.
Defendants filed multiple substantive motions before the
October 19, 2018 motions deadline, including motions to
sever. See, e.g., Defendant Reginald Brown's
Motion to Sever the Trial of Reginald Brown From the Trial of
Katrina Brown and Memorandum of Law (Doc. 59), filed on
October 17, 2018; Defendant Katrina Brown's Motion to
Sever Counts Thirty-Four Through Thirty-Seven (Doc. 65),
filed on October 19, 2018; Defendant Katrina Brown's
Motion to Sever Defendants (Doc. 66), filed on October 19,
2018. Notably, on October 22, 2018, Reginald Brown filed an
affidavit completed by Katrina Brown as an exhibit in support
of his motion to sever defendants. See
Defendant's Notice of Filing Exhibit (Doc. 68; First
Affidavit). In the First Affidavit, Katrina Brown averred
that “if the motion for severance is granted, I will
testify as a wittness [sic] in the trial of Mr. Reginald
Brown, in which case, I will provide exculpatory testimony to
the Court.” Id. at 3. Katrina Brown further
averred that she “did not conspire with Co-Defendant
Mr. Reginald Brown in any manner or forms as stated in”
the Indictment. Id.
December 21, 2018, Katrina Brown's court-appointed
counsel (Darcy Galnor) moved to withdraw from the case,
see Motion to Withdraw (Doc. 82), and on January 3,
2019, the Court granted the Motion to Withdraw and later
appointed a new attorney to represent Katrina Brown (Richard
Landes). See Orders (Docs. 87 & 92). At a status
hearing held on January 17, 2019, Katrina Brown's newly
appointed counsel requested a lengthy continuance to the
August 2019 trial term, and the Court granted that request
over Reginald Brown's objection. See Clerk's
Minutes (Doc. 96). In light of these events, the Court also
provided Katrina Brown's new counsel additional time to
supplement her pending motions, if appropriate. Id. See
also Endorsed Order sua sponte extending deadline to
file supplemental briefing to March 7, 2019 (Doc. 108).
Katrina Brown did not submit any supplemental briefing.
April 3, 2019, the Court entered an order denying
Defendants' original motions to sever. See Order
Denying First Motions to Sever (Doc. 114). Among other
things, the Court determined that Katrina Brown's First
Affidavit did not serve as a basis for severing
Defendants' trial. In doing so, the Court stated that the
First Affidavit consisted of “mere conclusory
statements and bare denials” and therefore did
“not contain the type of specific and exonerative facts
necessary to support severance.” Id. at 13.
The Court further found that Reginald Brown's motion to
sever was similarly insufficient, as it did not even discuss
Katrina Brown's First Affidavit or attempt to establish
the need for her testimony at trial. Id.
status of counsel hearing held on July 31, 2019-less than
three weeks before jury selection was scheduled to begin on
August 14, 2019-Katrina Brown notified the Court that she
wished to represent herself. See Defendant Katrina
Brown's Motion for a Status Conference Regarding
Representation (Doc. 155); Order Granting Defendant's
Motion for a Status Conference Regarding Representation (Doc.
156); Clerk's Minutes (Doc. 164). The Court conducted a
lengthy Faretta inquiry the following day, after
which the Court determined that Katrina Brown had
“knowingly, intentionally, voluntarily, and freely
waived her right to counsel” and permitted Katrina
Brown to represent herself in all further proceedings.
See Order (Doc. 166). Notably, Katrina Brown's
decision to proceed pro se prompted Reginald Brown to file a
second motion to sever. See Second Motion to Sever
the Trial of Reginald Brown from the Trial of Katrina Brown
and Memorandum of Law (Doc. 173), filed on August 5, 2019.
Among other things, Reginald Brown argued that he now
“face[d] the prospect of sitting helplessly by while
Ms. Brown flails about trying to be both lawyer and client.
This spectacle can only prejudice his case in the eyes of the
jury and make it all but impossible for the jury to reach an
individualized verdict as to him.” Id. at 2.
August 2, 2019, Katrina Brown filed a motion requesting a
six-month continuance of the trial, see
Defendant's Motion to Continue Trial and Pretrial Motions
Dates (Doc. 170), which both the government and Reginald
Brown opposed, see United States' Response to
Defendant Katrina Brown's Motion to Continue Trial (Doc.
171). At a hearing on the Motion to Continue held on August
6, 2019, the Court denied Reginald Brown's second motion
to sever. In doing so, the Court noted that although the
Eleventh Circuit has recognized the possibility of prejudice
where a defendant is joined for trial with an individual who
is proceeding pro se, such a trial is not per se prejudicial.
The Court concluded that Eleventh Circuit precedent suggested
sufficient precautionary measures the Court could take to
prevent prejudice caused by Katrina Brown's pro se
status. See United States v. Veteto,
701 F.2d 136, 139 (1983); United States v. Knowles,
66 F.3d 1146, 1160 (11th Cir. 1995); United States v.
Brown, 227 Fed.Appx. 795, 799-800 (11th Cir. 2007). The
Court also denied Katrina Brown's request to continue the
trial for another six months. See Clerk's
Minutes (Doc. 176). However, the Court granted a five-week
continuance and rescheduled the trial to begin with jury
selection on September 18, 2019. See id. In doing
so, the Court stated that because the motions deadline had
long since passed, and in light of the dispositive motions
that already had been filed by her attorneys and ruled on by
the Court, the Court would not allow Katrina Brown to file
any further dispositive motions. Id. Nevertheless,
in light of her recent decision to represent herself, the
Court gave Katrina Brown until September 18, 2019, to file
proposed jury instructions, id., and until August
21, 2019, to file motions in limine, see Order (Doc.
193). The Court did not extend any of the
motions deadlines for Reginald Brown.
The Instant Motions to Sever
August 27, 2019, Katrina Brown submitted the instant Renewed
Motion, along with a supporting affidavit, see
Renewed Motion at 4-10 (Second Affidavit), in which Katrina
Brown states that her prior attorneys “refused to
assist in preparation of Affidavit to provide exculpatory
testimony for Co-defendant Reginald Brown.”
See Renewed Motion at 2. She argues that severance
is required “for both defendants to see the face of
justice . . . .” Id. at 3. In her Second
Affidavit, Katrina Brown avers, in relevant part:
I will testify for defense at a separate trial for
Codefendant, Reginald Brown if the defendants are severed. I
will not testify at a joint trial.
In the fall of 2013, I approached Reginald Brown about
incorporating A Plus Training and RB Packaging. I assisted
him in that process. I filed and paid the fees associated
with the Articles of Incorporation for both A Plus Training
and RB Packaging . . . . At the time of its incorporation, it
certainly, was my intent for A Plus Training, via Reginald
Brown, to ...