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United States v. Watson

United States District Court, E.D. Missouri, Eastern Division

October 18, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
PIERRE WATSON, Defendant.

          ORDER

          AUDREY G. FLEISSIG DISTRICT JUDGE

         This matter is before the Court on the pretrial motions filed by Defendant Pierre Watson. All pretrial motions were referred to United States Magistrate Judge John M. Bodenhausen under 28 U.S.C. § 636(b). Defendant Watson filed a Motion to Dismiss Count Eleven of the Third Superseding Indictment (Doc. No. 130), a Motion to Sever his trial from that of the Co-Defendants (Doc. No. 131), a Motion to Sever Count Twelve from the remaining counts (Doc. No. 132), and a Motion to Dismiss the Indictment based on constitutional speedy trial grounds (Doc. No. 171). The United States filed responses opposing all of Defendant's motions. (Doc. Nos. 154-157, 173). The case is set for trial on November 7, 2016.

         Judge Bodenhausen held a hearing on June 24, 2016, at which the parties offered argument, but no evidence or testimony, and thereafter issued a Report and Recommendation (“R&R”), recommending that Defendant's motions to dismiss be denied, and that the two motions to sever be denied without prejudice. (Doc. #178.) Defendant filed a general objection, stating that he objected “for all of the reasons previously set forth in his motion to dismiss and accompanying suggestions.” (Doc. No. 180.) The United States likewise filed a general response simply relying on its previously filed pleadings and the authority set forth in the R&R.

         When a party objects to a Report and Recommendation in a criminal case, the court is required to "'make a de novo review determination of those portions of the record or specified proposed findings to which objection is made.'" United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (quoting 28 U.S.C. § 636(b)(1)).

         The Court conducted a de novo review of the motions to sever and to dismiss, including listening to the arguments presented at the hearing. Based on that review, the undersigned concludes that the Magistrate Judge made proper findings and correctly analyzed the issues, and therefore adopts and incorporates the R&R.

         A. Motion to Sever Defendants (Doc. No. 131)

         As set forth in the R&R, and acknowledged by Defendant at the hearing, Defendant's first argument, asserting potential Bruton[1] problems, is rendered moot by the prosecution's representation it will not seek to introduce, or will properly redact, any statements of co-Defendants that incriminate Defendant Watson. See United States v. Coleman, 349 F.3d 1077, 1085-86 (8th Cir. 2003). Defendant's second argument is that severance is necessary because he has reason to believe Shontell Hill and maybe Desiree Hill would be able to provide exculpatory testimony and they could not be compelled to testify in a joint trial. This argument fails, however, because Defendant has not met his burden to establish that either co-Defendant is likely to testify, nor has he established that their testimony would substantially exculpate Defendant Watson. The Magistrate Judge invited defense counsel to contact counsel for the co-Defendants to determine if they would be willing to testify on Defendant's behalf at a separate trial, and to supplement his motion if appropriate, but Defendant presented no further information. Likewise, Defendant failed to establish that the testimony of either co-Defendant would substantially exculpate Defendant.[2] Finally, as discussed in the R&R, the fact that some portion of the conspiracy “focuses on the separate actions and alleged conspiracy of defendants Shontell Hill and Desiree Hill” does not provide a persuasive basis for severance, as Defendant has neither asserted nor established a colorable claim of prejudice that cannot be addressed at trial.

         B. Motion to Sever Count Twelve (Doc. No. 132)

         Defendant's motion to sever Count Twelve, which charges Defendant Watson and co-Defendant Shontell Hill with witness tampering, is substantially the same as the argument Defendant asserted with respect to the second superseding indictment - which charged the same conduct in Count Six, without naming Shontell Hill by name. And this Court denies the motion for the same reasons stated in the R&R dated April 4, 2016 (Doc. No. 93), which this Court adopted (Doc. No. 99). See United States v. Colhoff, No. 15-2800, 2016 WL 4409347, at *2 (8th Cir. Aug. 19, 2016) (holding that joinder of witness tampering charge in prosecution for conspiracy to distribute controlled substances was proper, and recognizing that the witness tampering charge is connected to and interrelated with the conspiracy).

         Defendant's assertions that adding Shontell Hill as a co-Defendant raises additional concerns under either Bruton or United Crawford v. Washington, 541 U.S. 36 (2004) are unavailing. As set forth above, the United States has already represented that it does not intend to use or will properly redact any statements from any co-Defendant that might implicate Bruton. If the evidence involves co-conspirator statements (likely in the form of recorded telephone calls made in furtherance of the alleged witness tampering), such statements, if admissible as statements of co-conspirators under Fed.R.Evid. 801(d)(2)(E), would not violate the Confrontation Clause under either Bruton or Crawford. United States v. Singh, 494 F.3d 653, 658-59 (8th Cir. 2007); United States v. Werb, No. 15-153(4) (DSD/TNL), 2016 WL 355475, at *3 (D. Minn. Jan. 29, 2016).

         C. Motion to Dismiss Count Eleven

         Defendant has also filed a motion to Dismiss Count Eleven of the second superseding indictment. The basis of the motion is the same as Defendant asserted in his prior motion to dismiss Count Five, which is essentially the same as the current Count Eleven, except the victim account and name has been changed. The Magistrate Judge recommended that the motion be denied in his April 4, 2016 R&R, which this Court adopted and incorporated, and Judge Bodenhausen recommends that the current motion be dismissed for the same reason. Having reviewed the issues raised once again, the Court adopts the current R&R, and finds that the motion to dismiss Count Eleven should be denied for the same reasons as stated in the April 4, 2016 R&R and this Court's May 11 Order (Doc. No. 99).

         D. Motion to Dismiss for Constitutional Speedy Trial Violation

         Defendant has also filed a motion to dismiss the third superseding indictment, asserting violations of the constitutional right to a speedy trial under the Sixth Amendment.[3] After a careful review of the record and the law, the Magistrate Judge determined that no Sixth Amendment speedy trial violation ...


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