United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
K. KALLON, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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.
Whether Separate Trials are Necessary for Roberson to Present
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
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”).
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 ...