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United States v. Gilbert

United States District Court, N.D. Alabama, Southern Division

May 4, 2018

UNITED STATES OF AMERICA,
v.
JOEL IVERSON GILBERT, STEVEN GEORGE MCKINNEY, and DAVID LYNN ROBERSON, Defendants.

          MEMORANDUM OPINION AND ORDER

          ABDUL K. KALLON, UNITED STATES DISTRICT JUDGE.

         The court presently has before it David Lynn Roberson's Motion for Severance of Trials, doc. 59, pursuant to Rule 14 of the Federal Rules of Criminal Procedure. Roberson argues that he can only fully present a defense that includes calling his codefendants as witnesses if the court severs and sequences his trial to begin after his codefendants are sentenced or acquitted. Secondarily, he asserts that the Government's introduction of certain statements made by his codefendants will violate his rights under the Confrontation Clause if the court proceeds with a joint trial. After careful consideration of the parties' briefs, docs. 59; 73 and 104, and the relevant case law, Roberson's motion is due to be denied.

         I. BACKGROUND

         In 2014 and 2015 the Environmental Protection Agency proposed adding an existing Superfund site in Birmingham, Alabama to the National Priorities List and expanding the site to include surrounding areas. Doc. 1 at 4-5. Entities deemed responsible for contamination at designated Superfund locations are potentially subject to significant costs associated with long-term environmental remediation. Id. at 5-6. The EPA identified Roberson's employer as a potential source for the contaminants in the existing Superfund location, as well as in the newly identified zones hypothetically encompassed by an expanded designation. Id. at 2, 4.

         Roberson worked with his employer's outside counsel-Defendants Joel Gilbert and Steven McKinney-to plan a political response in opposition to the EPA's proposals. Id. at 7-8. As part of this response, Gilbert and McKinney's law firm signed a contract with the private foundation of former Alabama state legislator Oliver Robinson (hereafter “Robinson's Foundation”), and assisted Robinson in forming an organization, Get Smart Tarrant, to foment grassroots resistance to the EPA's actions. Id. at 8, 10-11, 27. Robinson also took a number of other actions in opposition to the EPA, including making appearances before state environmental agencies, meeting with EPA officials, and voting to advance a resolution, drafted by Defendant Gilbert and criticizing the EPA's proposed actions, out of committee in the Alabama legislature. Id. at 17-19, 24-26.

         Roberson, along with Gilbert and McKinney, were subsequently indicted on a series of charges arising out of their involvement with Robinson. In his current motion, doc. 59, Roberson is seeking to sever his trial from his codefendants.

         II. LEGAL STANDARD

         Rule 14(a) of the Federal Rules of Criminal Procedure provides that if the joinder of defendants at trial “appears to prejudice a defendant . . . the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires.” While the decision to sever “lies within the district court's sound and substantial discretion, ” see United States v. Lopez, 649 F.3d 1222, 1236 (11th Cir. 2011), the court must “balance the rights of the defendants and the government to a trial that is free from the prejudice that may result from joint trials against the public's interest in efficient and economic administration of justice.” United States v. Pepe, 747 F.2d 632, 649 (11th Cir. 1984). Indeed, “[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 1233 (citing Zafiro v. United States, 506 U.S. 534, 537 (1993)). As a result, the general rule is that “defendants who are indicted together are usually tried together.” United States v. Browne, 505 F.3d 1229, 1268 (11th Cir. 2007). That general rule “is even more pronounced in conspiracy cases.” Lopez, 649 F.3d at 1234 (citing United States v. Beale, 921 F.2d 1412, 1428 (11th Cir. 1991)). This preference is not invariable though, and a defendant may justify severance by “‘demonstrat[ing] that a joint trial will result in specific and compelling prejudice to the conduct of [her] defense.'” United States v. Schlei, 122 F.3d 944, 984 (11th Cir. 1997) (quoting United States v. Walker, 720 F.2d 1527, 1533 (11th Cir. 1983)). But, “[t]o 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.” Lopez, 649 F.3d at 1234 (citing Zafiro, 506 U.S. at 539-41). “[I]t 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.[1]

         III. ANALYSIS

         Roberson raises two main arguments in support of his motion: that a joint trial would (1) deprive him of a central pillar of his defense, i.e., that he relied in good faith on his codefendants' legal advice and therefore lacked the requisite intent to commit the charged crimes; and (2) violate his Sixth Amendment right to challenge his codefendants' grand jury testimony. The court will address each contention in turn.

         A. Whether Separate Trials are Necessary for Roberson to Present a Defense

         “A defendant arguing for severance to permit a codefendant's exculpatory testimony must demonstrate: ‘(1) a bona fide need for the testimony; (2) the substance of the desired testimony; (3) the exculpatory nature and effect of the desired testimony; and (4) that the co-defendant would indeed have testified at a separate trial.'” United States v. Green, 818 F.3d 1258, 1280 (11th Cir. 2016) (quoting United States v. Novaton, 271 F.3d 968, 989 (11th Cir. 2001)). As Roberson explains in his motion, he intends to call his codefendants to testify that they advised him that the conduct forming the basis for the criminal charges here was lawful. Basically, Roberson wants to establish “the defense of good faith reliance on advice of counsel” to prove he lacked the requisite intent to commit the charged crimes. See United States v. Eisenstein, 731 F.2d 1540, 1543 (11th Cir. 1984). For such a defense, Roberson must show “that he relied in good faith after first making a full disclosure of all facts that are relevant to the advice for which he consulted the attorney.” Id. This includes both the advice Roberson received and the information he provided to his counsel. However, for the reasons stated below, Roberson's intent to call his lawyers to testify, standing alone, is insufficient to justify severance, particularly in light of Roberson's failure to provide the court with details regarding the specific testimony his codefendants will offer. See Novaton, 271 F.3d at 989-90.

         First, other than the sweeping generalizations identified above, Roberson has offered no information to establish the requisite bona fide need for his codefendants' testimony. In fact, the record suggests that others may be able to provide essentially identical testimony. For example, Defendant Gilbert testified before the grand jury that he discussed the legality of the Defendants' agreement with Robinson's Foundation “internally with [his law firm's] ethics people, ” who concluded that it was lawful. See Doc. 104 at 5. Additionally, Gilbert told the grand jury that others at the law firm “were aware of [the] engagement” of Robinson on behalf of Roberson's employer, and Defendant McKinney testified that Gilbert told him that “the governmental affairs guys vetted [the agreement with Robinson's Foundation] and said it was okay.” Id. at 5-6. Similarly, assuming others at Roberson's company were privy to information Roberson provided to counsel and the advice he received from his codefendants, Roberson could presumably explore the substance of that information via their testimony. Put simply, Roberson has neither provided an explanation as to why other involved individuals could not provide virtually identical testimony to that of his codefendants regarding the legal advice Roberson received, nor explained why such testimony would prove inadequate. See Green, 818 F.3d at 1282 (explaining there was no bona fide need for testimony that other witnesses “could readily have provided”).

         Second, Roberson has provided no substantive details regarding the testimony his codefendants would provide. See Novaton, 271 F.3d at 990 (“[S]tatements concerning the testimony that would become available by severing trials must be specific and exonerative, rather than conclusory or self-serving, in order to justify severance”); Green, 818 F.3d at 1282 (“Bare assertions that a codefendant knows substantive facts are not themselves substantive facts”). At best, Roberson contends that his codefendants would testify as they did before the grand jury, i.e., by explaining that they believed the charged conduct was lawful and, presumably, that they provided Roberson with legal advice to that effect. See Doc. 104 at 6. But, as the Government notes, when they testified before the grand jury neither codefendant could recall specific discussions with Roberson regarding the legality of the agreement with Robinson or about the decision to hire Robinson's Foundation. See Doc. 73 at 5-6. Moreover, the proposed testimony ...


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