United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter comes before the Court on Defendant Dajwan Ware's
pretrial motions (ECF No. 116), which are joined in support
by co-Defendants Arellano, Elliot,  and Love. The Court limits
its discussion to Defendant Ware's request for severance,
since the remaining motions were withdrawn at oral argument.
(ECF No. 142).
1, 2016, Defendant Ware, an Indiana resident, was arrested
for allegedly conspiring to transport, deliver, and receive a
dog for purposes of having the dog participate in an animal
fighting venture, contrary to 7 U.S.C. § 2156(b) and 18
U.S.C. § 49, and in violation of 18 U.S.C. § 371.
As part of the purported conspiracy, Defendant Ware received
a dog from Defendant Arellano on October 19, 2015 and later
spoke with a co-conspirator in New Jersey about fighting his
dog, "Bubbles, " in a dog fight. Thereafter, on
October 31, 2015, the co-conspirator transported Bubbles to
Defendant Ware's Indiana residence for purposes of dog
fighting. On June 15, 2017, Defendant Ware was named in a
twenty-three count indictment and ultimately charged with one
count of conspiring with three co-defendants and others to
sponsor and exhibit dogs in animal fighting ventures, and to
sell, buy, possess, train, transport, deliver, and receive
dogs for purposes of having the dogs participate in animal
fighting ventures, contrary to 7 U.S.C. § 2156(a)(1) and
18U.S.C. § 49.
present motion, Defendant Ware argues that severance is
warranted because: (1) he was not properly joined under
Federal Rule of Criminal Procedure 8; and (2) joinder would
cause undue prejudice. The Court addresses each in turn.
Rule of Criminal Procedure 8(b) permits the joinder of
defendants "if they are alleged to have participated in
the same act or transaction, or in the same series of acts or
transactions, constituting an offense or offenses." Fed.
R. Crim. P. 8(b). However, "[a]ll defendants need not be
charged in each count." Id. "When distinct
offenses have both a logical and temporal relationship,
joinder permits the Government to present its evidence in an
efficient manner. Such evidentiary overlap 'strongly
counsels in favor of joinder.'" United States v.
Eisenberg, 773 F.Supp. 662, 696 (D.N.J. 1991) (quoting
United States v. McDonnell, 699 F.Supp. 1348, 1351
(N.D. 111. 1988)). When the Rule 8 requirements have been
met, there is a presumption in favor of joinder. Id.
Federal Rule of Criminal Procedure 14(a) "allows the
court in its discretion to sever on the basis of prejudicial
joinder of defendants or offenses." United States v.
Vastola, 670 F.Supp. 1244, 1261 (D.N.J. 1987); see
also United States v. Reicherter, 647 F.2d 397, 400 (3d
Cir. 1981) ("Motions for severance rest in the sound
discretion of the trial judge."). "Defendants bear
a heavy burden when they move for severance under Rule
14." Eisenberg, 111 F.Supp. at 697. "Mere
allegations of prejudice are insufficient to meet this
burden. Defendants must 'demonstrate clear and
substantial prejudice.'" Id. (quoting
United States v. Gorecki, 813 F.2d 40, 43 (3d Cir.
1987)). "Of primary concern in considering a motion for
severance is 'whether the jury can reasonably be expected
to compartmentalize the evidence, ' as it relates to each
count by following the instructions of the trial court."
Reicherter, 647 F.2d at 400 (quoting United
States v. DeLarosa, 450 F.2d 1057, 1065 (3d Cir. 1971)).
Defendant Ware contends that joinder is improper since
"the offenses charged are merely of the same or of a
similar character." (Def s Motion at 3). However,
"[t]he mere allegation of a conspiracy presumptively
satisfies Rule 8(b), since the allegation implies that the
defendants named have engaged in the same series or acts or
transactions constituting an offense." United States
v. Irizarry, 341 F.3d 273, 289 n.5 (3d Cir. 2003)
(quoting United States v. Friedman, 854 F.2d 535,
561 (2nd Cir. 1988)). Moreover, "[j]oinder . .. of a
conspiracy count and substantive counts arising out of the
conspiracy [is permitted], since the claim of conspiracy
provides a common link, and demonstrates the existence
of a common scheme or plan." United States v.
Eufrasio, 935 F.2d 553, 567 (3d Cir. 1991) (quoting
United States v. Somers, 496 F.2d 723, 729-30 (3d
Cir. 1974) (emphasis in original)). Here, given that the
superseding indictment charges all defendants, including
Defendant Ware, of conspiracy to engage in dog fighting
ventures and since the additional substantive counts against
the other defendants arise out of the conspiracy to engage in
dog fighting, joinder is proper under Rule 8.
Defendant Ware contends that undue prejudice requires
severance. Specifically, Defendant Ware argues that
"[b]y lumping him together with his co-defendants who
reside in New Mexico and New Jersey unfairly paints a picture
of an individual who is involved in a nation-wide dog
fighting ring." (Def s Motion at 6). However,
"[t]he introduction of evidence more damaging to one
defendant than another does not entitle the seemingly less
culpable defendant to a severance." United States v.
McGlory, 968 F.2d 309, 340 (3d Cir. 1992) (citing
United States v. Rocha, 916 F.2d 219, 228-29 (5th
Cir. 1990)). Alternatively, Defendant Ware argues that
severance is warranted since the jury is incapable of
compartmentalizing his charge against the substantive charges
of the co-defendants. (Def s Motion at 7). The Court
disagrees. It is well-settled that the potential prejudice
from joinder of multiple counts can be cured with proper jury
instructions. See Zaflro v. United States, 506 U.S.
534, 540-41 (1993); see also United States v.
Mathis, 568 Fed.Appx. 149, 153 (3d Cir. 2014) ("any
potential prejudice from the joinder of multiple counts can
be minimized by instructing the jury that each count charged
is a separate offense and thus should be considered
independently"). Here, with proper instructions, the
jury is capable of considering Defendant Ware's charge
separate from the additional substantive charges of the
co-defendants. As such, the Court finds that Defendant Ware
has failed to meet his burden of demonstrating undue
prejudice warranting severance at this juncture; however,
Defendant Ware may re-apply if discovery uncovers new issues.
on this 14th day of February, 2018;
that Defendant Ware's severance motion (ECF No. 116) is
denied without prejudice.
 Although Defendant Elliot joins in the
motion, he did not appear telephonically for oral argument on