United States District Court, D. Colorado
ORDER ON MOTIONS
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
Currently before the Court are the following four motions filed by Defendant Corey Engelen: Motion for a Hearing to Determine the Admissibility of any Statements pursuant to Rule 801(d)(2)(E) of the Federal Rules of Evidence (Doc. # 48); Motion for a Separate Trial (Doc. # 49); Motion to Dismiss Count 14 (Doc. # 50); and Partially Unopposed Renewed Motion for Disclosure of Fed.R.Evid. 608 and 404(b) Evidence (Doc. # 54). The Court will address each motion in turn.
I. Motion for a Hearing to Determine the Admissibility of any Statements pursuant to Rule 801(d)(2)(E) of the Federal Rules of Evidence (Doc. # 48)
In response to Defendant Engelen’s motion, the government asserts that it does not intend to offer any statements pursuant to Federal Rule of Evidence 801(d)(2)(E) in this case. (Doc. # 57.) Therefore, Defendant’s motion for a hearing is moot.
II. Motion for a Separate Trial (Doc. # 49)
Defendant moves, pursuant to Federal Rule of Criminal Procedure 14, for a trial separate from his co-defendant Michael Osborn. (Doc. # 49 at 1.) Both Defendant Engelen and Defendant Osborn were charged in the same indictment pursuant to Federal Rule of Criminal Procedure 8. (Doc. # 3.) Rule 8(b) states that an indictment or information “may charge 2 or more 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.” Rule 14 recognizes that joinder, even when proper under Rule 8(b), may prejudice either the government or a defendant. Thus, Rule 14(a) provides:
If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires.
Defendant Engelen does not allege that he was improperly charged in the same indictment as Defendant Osborn. Instead, Defendant Engelen argues that, pursuant to Rule 14, justice requires that the Court severe his trial from Defendant Osborn’s trial.
At the outset, the Court notes that “[t]here is a preference in the federal system for joint trials of defendants who are indicted together.” Zafiro v. United States, 506 U.S. 534, 537 (1993). Joint trials “play a vital role in the criminal justice system” because they promote efficiency and “serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.” Richardson v. Marsh, 481 U.S. 200, 209 (1987).
Defendant Engelen presents several arguments in support of his motion to severe, and the Court will address each in turn.
A. Alleged Hearsay Evidence and Defendant Osborn’s Statements to the Government
Defendant Engelen argues that, if his trial is not severed from Defendant Osborn’s trial, he will not be able to exercise his “constitutional right to cross-examine the hearsay evidence of statements made by Mr. Osborn or any putative co-conspirator.” (Doc. # 49 at 4.) According to Defendant Engelen:
This hearsay evidence consists of dozens of fraudulent documents created by Mr. Osborn including: power point presentations containing multiple misstatements of fact; solicitation letters; forged subscription agreements; forged insurance documents; forged corporate documents; and faked excel spread sheets purporting to show investor gains.
(Doc. # 49 at 4.)
In addition, Defendant Engelen asserts that, according to the discovery that he has received, Defendant Osborn “made statements to investigating agents that implicate Mr. Osborn, attempt to extricate Mr. Osborn, and blame Mr. Engelen.” (Doc. # 49 at 5.) Defendant Engelen argues that, if these statements were admitted during a joint trial and Defendant Osborn chose not to testify, his sixth amendment right to be confronted with the witnesses against him would be violated. (Doc. # 49 at 5.) In support of this argument, Defendant Engelen cites Bruton v. United States, 391 U.S. 123 (1968).
In response, the government asserts that the alleged “hearsay evidence”-which Defendant Engelen identifies as “dozens of fraudulent documents created by Mr. Osborn”-are not in fact hearsay because they will not be offered to prove the truth of the matters asserted therein. (Doc. # 58 at 11.) The government states that it “intends to present this evidence to show [the] falsity of the ...