LEONARD P. STARK, District Judge.
Pending before the Court in this criminal action are multiple pretrial motions filed by the government and Defendant, Sean David Woodson ("Defendant" or "Woodson"). In advance of a pretrial conference to be held this same day, the Court rules on most of the motions, as explained below.
On February 17, 2010, a grand jury returned a one-count Superseding Indictment charging Woodson with being a felon in possession of a firearm on October 8, 2009, in violation of 18 U.S.C. § 924(g)(1) & 924(e). (D.I. 17) On January 4, 2011, following trial, a jury found Woodson guilty. (D.I. 110, 111) Subsequently, Woodson's post-trial motion for a new trial was granted. (D.I. 157)
Both Woodson and the government filed appeals, which were resolved by the Third Circuit on January 11, 2012 and January 28, 2013, respectively. (D.I. 186, 243) On March 14, 2013, the Court held a status conference with the parties and, thereafter, scheduled a jury trial of up to four days to begin on July 22, 2013. (D.I. 283) On April 2, 2013, a grand jury returned a nine-count Second Superseding Indictment. (D.I. 305) Count I repeats the felon in possession charge of the earlier Superseding Indictment. The additional counts are: obstruction of justice on January 29, 2013 by submitting false documents to this Court, in violation of 18 U.S.C. § 1503 (Count II); obstruction of justice on January 24, 2013 by submitting false documents to a justice repository in Maryland, in violation of 18 U.S.C. § 1503 (Count III); obstruction of justice on November 2, 2012 by submitting false documents to the Baltimore County Police Department, in violation of 18 U.S.C. § 1503 (Count IV); obstruction of justice - witness tampering on December 5, 2010 by corruptly persuading another person with the intent to influence his testimony at the first trial in this matter, in violation of 18 U.S.C. § 1512(b)(2)(A) (Count VI); obstruction of justice - witness tampering on November 5, 2010 by corruptly persuading another person to withhold testimony from the first trial in this matter, in violation of 18 U.S.C. § 1512(b)(2)(A) (Count VII); and, on October 8, 2009, possession of oxycodone, heroin, and marijuana, in violation of 21 U.S.C. § 844(a) (Counts VII, VIII, IX). (Throughout the remainder of this Memorandum Order, the Court sometimes refers to Counts II through VI collectively as the "obstruction counts" and Counts VII through IX collectively as the "drug possession counts.")
On multiple occasions, including following extensive colloquies, Woodson has expressed his desire to exercise his right to represent himself. ( See, e.g., D.I. 265; D.I. 306 at 3-11) Woodson has been in custody since October 8, 2009.
During a status conference on June 13, 2013, the Court inquired as to the parties' positions as to whether the forthcoming trial should deal with all nine counts of the Superseding Indictment or only some subset of these counts. The government took the position that the July trial should involve all nine counts. Woodson appeared to prefer a separate trial, noting it would be "easier to try as it was initially set, " but adding he lacked "any valid legal grounds" to request severance. (D.I. 350 at 4) Woodson also suggested he had adequate time to prepare for a July trial on all nine counts, stating "if you are not going to sever it, then I don't have any opposition." ( Id. )
Pursuant to Federal Rule of Criminal Procedure 14(a), upon a finding that the joinder of offenses in an indictment "appears to prejudice a defendant or the government, " "the court may order separate trials of counts... or provide any other relief that justice requires." "A claim of improper joinder under Fed. R. Crim. P. 14 must demonstrate clear and substantial prejudice." United States v. Gorecki, 813 F.2d 40 (3d. Cir. 1987) (internal quotation marks omitted). The Court may grant severance sua sponte. See, e.g., United States v. De Diego, 511 F.2d 818, 824 (D.C. 1975) (noting Court's power, in interest of justice, to grant Rule 14 severance sua sponte); United States v. Cianciulli, 476 F.Supp. 845 (E.D. Pa. 1979) (ordering sua sponte severance of trial of multiple defendants, "pursuant to the express and inherent judicially created powers under Fed. R. Crim. P. 14"); see also United States v. Archie, 452 F.2d 897, 899 (3d Cir. 1971) (finding no abuse of discretion in failure to sever sua sponte ).
The Court will exercise its discretion and sever the charges of the Second Superseding Indictment for two separate trials. The trial commencing in July 2013 will be limited to the felon-in-possession count and the drug possession counts (I, VII, VIII, IX). These four charges all relate to events occurring on October 8, 2009. The charges being severed for a separate trial - the obstruction charges (II, III, IV, V, VI) - all relate to subsequent events, occurring between November 2010 and January 2013.
Because the drug possession counts added to the Second Superseding Indictment all arise from the same events on the same date as the felon-in-possession count, it is appropriate, efficient, and fair to both sides to try these counts together with the original felon-in-possession count. By contrast, to expose the jury that evaluates the evidence relating to the October 2009 events to all of the evidence that would likely be admissible at trial of the obstruction counts - including evidence of witness tampering, evidence that Woodson has been tried before on the felon-in-possession charge, evidence that Woodson is (and has for a while been) detained, evidence that contraband has been recovered during a search of his cell - would risk unfair prejudice, at least to Woodson. The difficulty of ensuring a fair trial seems likely to be heightened by Woodson's prose status.
The Court recognizes that "Rule 14 does not require severance even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district court's sound discretion." Zajiro v. United States, 506 U.S. 534, 538-39 (1993). Here, under the specific circumstances presented, the Court finds that the appropriate relief is to sever the October 2009 charges from the later-arising obstruction charges. See id. at 551 ("Rule 14 leaves the determination of risk of prejudice and any remedy that may be necessary to the sound discretion of the district courts.").
For Release of Documents Submitted to the Court Ex Parte by Defendant (D.I. 280)
In connection with a hearing on Woodson's release status in January 2012, Woodson submitted to the Court, ex parte, two documents he asked the Court to consider. The documents, which are a declaration and a letter from two individuals who had contact with Woodson on October 8, 2009, are relevant to the government's investigation and prosecution of Woodson for the obstruction charges. There is no basis for sealing these documents and depriving the government access to them. The Court is not persuaded by Woodson's contention that the government will use the information contained in the documents to intimidate witnesses. As the documents were voluntarily submitted to the Court by Woodson, despite the Court's warning that the Court might subsequently determine the documents need to be produced to the government (D.I. 280 Ex. A at 19-24), the Court will provide these documents to the government (but keep them sealed for other purposes).
To Preclude Evidence of Sentencing Issues at Trial (D.I. 321)
Woodson will be prohibited from informing the jury, either through his questions to witnesses, his own or other witnesses' testimony, or his argument, the potential sentence he may receive if convicted. The jury has no sentencing function and is required to reach its verdict without regard to what sentence might be imposed. See Shannon v. United States, 512 U.S. 573, 579 (1994). Evidence relating to sentencing, thus, is irrelevant and inadmissible.
To Admit Defendant's Prior Convictions (D.I. 322)
The government moves in limine to introduce Woodson's prior felony conviction for Burglary Third Degree, as necessary evidence to meet an essential element of the felon-in-possession charge, proving he was a prohibited person. This portion of the motion is granted. The government further requests that it be permitted to introduce Woodson's additional prior felony convictions solely for the purpose of impeachment in the event Woodson chooses to exercise his right to testify in his own defense. Woodson's additional convictions were for Assault Second Degree and three counts of First Degree Burglary. All of these convictions are for felony offenses within the past ten years. Under the circumstances, including the crucial role Woodson's credibility will play if he testifies, the probative value of the evidence outweighs its prejudicial effect to Woodson, particularly given that the government will only be permitted to inquire (on the matter of prior convictions) as to whether Woodson was convicted of a felony on a particular date, without inquiring into the specific nature of the prior felony. The Court will also give the jury a limiting instruction to the effect that the jury may only consider Woodson's prior convictions for impeachment purposes. Accordingly, the motion is granted. See Fed.R.Evid. 609; Gov't of Virgin Islands v. Bedford, 671 F.2d 758, 761 (3d Cir. 1982); United States v. Greenidge, 495 F.3d 85, 97-98 (3d Cir. 2007).
To Admit Redacted Versions of Documents Relating to Counts II-IV (D.I. 323)
This motion will be denied without prejudice to renew in connection with the separate trial to be held on the obstruction charges.
To Admit Evidence Regarding Defendant's Probationary Status and Incarceration (D.I. 324)
Pursuant to Rule 404(b) of the Federal Rules of Evidence, the government moves in limine to introduce evidence of Woodson's probationary status on October 8, 2009, at the time of the searches of his vehicle and his person that give rise to the felon-in-possession and drug possession charges. (D.I. 324) To this extent, the government's motion is granted. The firearm, heroin, and marijuana found in the safe in the trunk of the vehicle to which Woodson had the keys, as well as the oxycodone found on his person, are direct evidence supporting the government's allegations in Counts I and VII-IX. This evidence is necessary to provide the jury context to understand the crimes being tried, including the events leading to the search of his vehicle. This evidence is offered for a proper purpose under Rule 404(b), is relevant, and has probative value that is not substantially exceeded by any of the concerns of Rule 403. See United States v. Givan, 320 F.3d 452, 460 (3d Cir. 2003). The prejudice to Woodson is reduced because the jury will know that Woodson has a criminal record, given that a felony conviction is an essential element of the felon-in-possession charge. Also limiting the prejudice to Woodson is the government's representations (D.I. 324 at 4) - to which it will be held - that it will not elicit testimony or present evidence as to the specific crime for which Woodson was serving probation or the crime for which he was ...