United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
P. SIMON, JUDGE
matter is before the Court on the Defendant Farmer's
Motion to Sever for Trial the June 25, 1999 Murder
Allegations From the RICO Conspiracy Charges Because
Prejudicial Joinder, filed by Defendant, Jeremiah Shane
Farmer, on April 29, 2019 [DE 2019]. For the reasons set
forth below, the motion to sever is DENIED.
is charged by way of fifth superseding indictment with: (1)
being part of a RICO conspiracy involving the Latin Kings, in
violation of 18 U.S.C. § 1962 (Count One); and (2) a
drug conspiracy, in violation of 21 U.S.C. § 836 (Count
Two). [DE 1819.] One of the specific overt acts alleged in
the RICO conspiracy is that Farmer murdered two people -
Harvey Siegers and Marion Lowery. [Id. ¶
24(a).] In this motion, Farmer moves to sever that specific
act - the murders - from the rest of the RICO count.
provides, “[i]f the joinder of offenses . . . in an
indictment . . . 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.” Fed. R. Crim. P. 14(a). A motion to
sever should be granted only when there is “a serious
risk of unfair prejudice that deprives the defendant of a
fair trial.” United States v. Smith, 308 F.3d
726, 736 (7th Cir. 2002). The defendant has the burden of
showing actual prejudice from joinder. United States v.
L'Allier, 838 F.2d 234, 241 (7th Cir. 1988).
“[I]t is not enough for a defendant to show that
separate trials may have provided him a better opportunity
for acquittal. Rather, a defendant must be able to show that
the denial of severance caused him actual prejudice in that
it prevented him from receiving a fair trial.”
United States v. Carter, 695 F.3d 690, 700-01 (7th
Cir. 2012) (quotation marks and citations omitted). In
addition, the defendant's showing of actual prejudice
must be balanced against policy encouraging judicial economy
and the avoidance of lengthy and repetitious trials involving
the same evidence and same witnesses. Smith, 308
F.3d at 736.
single trial is appropriate if it is within the jury's
capacity, given the complexity of the case, to follow
admonitory instructions and to keep separate, collate, and
appraise the evidence. United States v. Moore, 115
F.3d 1348, 1362 (7th Cir. 1997). “Rule 14 leaves the
determination of risk of prejudice and any remedy that may be
necessary to the sound discretion of the district
courts.” Zafiro v. United States, 506 U.S.
534, 541 (1993).
defendant Farmer has already been severed from the other
defendants in this case. Now Farmer is additionally
requesting severance of the murder allegations contained in
Count One, from the other RICO conspiracy charges in Count
One. In other words, he wants to sever off just a portion of
Count One from the rest of the case. Farmer provides me with
no case law as precedent in support of this unusual request
to sever one overt act apart from the rest of the conspiracy.
The conspiracy as charged continued from about 1999 through
the date of the fifth superseding indictment, so it does
encompass the overt act of the alleged murders of Marion
Lowery and Harvey Siegers. [DE 1819 at 8.]
contrary to Farmer's argument that RICO and the murders
are “essentially two separate offense[s], ” they
are all part of the same conspiracy. To prevail on the RICO
conspiracy count, the Government would have to prove a
pattern of racketeering activity, meaning that the defendant
agreed that some member or members of the conspiracy would
commit at least two racketeering acts. See, e.g., United
States v. Briseno, 843 F.3d 264, 274 (7th Cir. 2016).
Because one of the alleged racketeering acts are the murders,
those murders are a potential way for the Government to prove
the RICO count. I see no reason to hamstring the Government
in its presentation of evidence in two separate trials by
severing the alleged murders from the overall conspiracy.
“Defendant  do[es] not cite any authority to suggest
that a crime committed to further a conspiracy may be too
inherently prejudicial to allow presentation therefore to the
jury.” United States v. Dickens, 695 F.2d 765,
779 (3d Cir. 1982) (abrogated on other grounds)
(affirming district court's refusal to sever one
racketeering act involving the murder of a policeman, from
the rest of the case); see also United States v.
Hosseini, 679 F.3d 544, 553-54 (7th Cir. 2012)
(affirming denial of severance where conduct forming the
factual basis for a drug conspiracy charge against one
defendant was part of the same series of acts and
transactions as the RICO-conspiracy and money-laundering
charges against both defendants.)
argues that with regard to the RICO conspiracy, he would like
to challenge the scope and activities of the Latin King gang,
but with regard to the murder charges, he may be required to
testify to explain statements/admissions he allegedly said to
three friends regarding the murders. [DE 2019 at 3-4.] In
other words, Farmer suggests that he would like to testify on
the issue of the murders but not on the other acts or gang
affiliation. This argument is flawed in itself, because there
is not a separate charge for the murders - those allegations
are part of the overt acts that make up the RICO conspiracy.
the Seventh Circuit has stated that “severance is not
mandatory every time a defendant wishes to testify to one
charge and remain silent about another. If that were the law,
a court would be divested of all control over the matter of
severance and the choice would be entrusted to the
defendant.” United States v. Ely, 910 F.2d
455, 459 (7th Cir. 1990) (citing United States v.
Peters, 791 F.2d 1270, 1287 (7th Cir. 1986)). Severance
is only required when a defendant demonstrates that he has:
(1) important testimony to give concerning some counts and
(2) a strong need to refrain from testifying with regard to
other counts. Id. at 457. Here, Farmer merely says
he may testify to explain the statements he made
regarding the charged murders. This vague and speculative
statement does not come close to being a clear indication of
prejudice that would outweigh the benefits of trying these
charges in the same trial. It would be extremely uneconomical
(and frankly, it just doesn't make sense because these
charges are all part of one conspiracy), to attempt to parse
out the murder charges from the rest of the conspiracy and
have two trials with overlapping witnesses and testimony.
I do not think that denial of the severance would result in
actual prejudice, or deprivation of a fair trial for Farmer.
Therefore, the Motion to Sever for Trial the June 25, 1999
Murder Allegations From the RICO ...