United States of America Represented, Darcie N. McElwee Assistant United States Attorney.
Renee Thomes, Defendant Represented, J. Hillary Billings Federal Defender’s Office.
ORDER ON MOTION TO SEVER
D. Brock Hornby, United States District Judge.
I heard oral argument on July 23, 2014 on the defendant Renee Thomes’ motion to sever. Mot. to Sever (ECF No. 81). Although the defendant Renee Thomes has asked for more time to “comb the discovery materials” to look for additional grounds for her motion. Mot. to Extend Deadline for Filing Motions in Limine at 2 (ECF No. 111). I conclude that she has had enough time, leading up to the filing of the written motion, during the time before oral argument, and then during the extra time I allowed following the hearing for filing motions in limine. The other parties are entitled to a ruling now in order to be able to prepare their cases accordingly.
The co-defendants Theodore Thomes and Renee Thomes are husband and wife, both charged in one count with knowingly possessing stolen firearms on June 28, 2012. Superseding Indictment, Count Four (ECF No. 87). Theodore Thomes is also charged with being a felon in possession on that date and an additional date, December 23, 2011, Superseding Indictment, Counts One and Three, and with knowingly possessing the stolen firearms on that additional date as well, Superseding Indictment, Count Two. Joinder of the two defendants is proper under Fed. R. Crim. P. 8. The question is whether severance is appropriate under Rule 14 because of prejudice in a joint trial.
Renee Thomes argues that a joint trial will prejudice her case in the following ways.
a. Introduction of Theodore Thomes’ felony convictions will lead to spillover prejudice against her.
b. If she takes the stand in her own defense, she will end up surrendering her marital privilege and testifying against her husband, whereas she could refuse to testify at his separate trial on the basis of marital privilege.
c. If Theodore Thomes’ out-of-court statements are admitted against him at a joint trial and he exercises his 5th amendment right not to testify, she will be unable to cross-examine him even though his statements may well implicate her. If that were to happen, it would require severance or some other relief. Bruton v. United States, 391 U.S. 123 (1968).
I conclude that none of these arguments, alone or in combination, justifies severance.
Introduction of Theodore Thomes’ felony convictions at a joint trial where he is charged with being a felon in possession does not justify severance. First, to establish that Theodore Thomes was prohibited from possessing firearms, under Old Chief v. United States, 519 U.S. 172, 177 (1997), it will be sufficient for the government to establish that Theodore Thomes is a convicted felon. The government need not be permitted to establish the nature of the crime (beyond the fact that it is a felony) or the number of convictions. The government and Theodore Thomes expect to reach a stipulation on this element. Second, I can instruct the jury about the limited relevance of his conviction and that it has no bearing on the jury’s consideration of whether the government can prove its case that Renee Thomes knew that the firearms were stolen. (Her lawyer says that she does not contest the element of possession, only whether she had the necessary mens rea.) Third, the feared spill-over prejudice is highly unlikely. A jury is unlikely to use Theodore Thomes’ criminal background in determining whether Renee Thomes knew that the firearms were stolen.
With respect to the marital privilege argument, the government may not call Renee Thomes as a witness at a joint trial. If she chooses to exercise her constitutional right to testify at the joint trial, however, then she will surrender her marital privilege. The cases generally hold that result is acceptable. Rene Thomes has a constitutional right to testify in her own behalf, but only a privilege not to testify against her husband, and it is not improper to allow the exercise of her right to void her privilege. United States v. Artates, 2012 WL 6597752, *2-*3 (D. Hawai’i Dec. 18, 2012); United States v. Manfredi, 628 F.Supp.2d 608, 648-49 (W. D. Pa. 2009); United States v. Ferrer, 2008 WL 4890034, *3 (M.D. Pa. Nov. 12, 2008); United States v. Freeman, 694 F.Supp. 190, 191 (E.D. Va. 1988); United States v. Sasso, 78 F.R.D. 292 (S.D.N.Y. 1977). I also observe that neither defendant is contending that a joint trial somehow prevents exculpatory testimony from the other. Renee Thomes is not entitled to severance merely because she would rather not testify against her husband at a joint trial.
The Bruton issue is the most serious. The parties agreed that because the defendant knows the statements that the government will use, it is unnecessary to conduct an in camera inspection under Rule 14(b). At the hearing, the assistant U.S. Attorney went through all the out-of-court statements of Theodore Thomes that Renee Thomes’ counsel considers prejudicial to her and, as to most, stated that the government will not use them in its case in chief. For the few statements that it will use, I find ...