UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

TORIONO HUMPHREY,

Defendant.

/

Case No. 2:15-cr-20329-04

HON. STEPHEN J. MURPHY, III

ORDER DENYING TORIONO

HUMPHREY'S MOTION TO SEVER (document no. 110),

AND DENYING MOTION TO COMPEL DISCLOSURE OF WITNESS LIST,

EXHIBIT LIST, AND ADDITIONAL WITNESS INFORMATION (document no. 108)

Defendant Toriono Humphrey is charged with conspiring to distribute heroin, cocaine

and marijuana. Indict.,ECF No. 1. Humphreymoved the Court to sever his trial from that of his

six co-defendants. Mot., ECF No. 110. Additionally, Humphrey seeks to compel the

Government to disclose its witness list, exhibit list, and recorded witness statements. Mot.,

ECF No. 108. No hearing is necessary. Forthe reasons stated below, the Court will denythe

motions.

BACKGROUND

The Government alleges the following: on April 17, 2012, U.S. Customs and Border

patrol agents searched a semi-truck trailer crossing from Mexico and discovered 1600

kilograms of marijuana insealed containers, intermixed withfrozen strawberries. Resp. 2–3,

ECF No. 119. The truck was bound for a warehouse in Oak Park, Michigan.BothHumphrey

and his co-defendant Alvin Matheney were connected to the warehouse. On April 23, 2012,

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agents conducted a controlled deliveryof the truck to the warehouse. Later, agents executed

a search warrant on the warehouse and seized the marijuana.

On April 26 and May 2, 2012, federal agents interviewed Matheney. Id. at 3–4. He

admitted to using the alias "Al Baker" to rent the warehouse. Matheney told agents that "an

individual he knew as 'Tony'" contacted him to rent out the warehouse space. Matheneysaid

he was familiar with "Tony" but did not know his last name. According to Matheney, he and

"Tony" had engaged insmaller scale drug transactions previously.Additionally,Matheneytold

agents "Tony" needed a space with a walk-in freezer for receiving shipments of frozen food.

Id. Matheney stated that "Tony" had "work" and was planning on adding "work" to the food

orders. The agents understood the term "work" to refer to the buying and selling of illegal

drugs. Matheney told agents he coordinated the lease of the warehouse and took cash from

"Tony" for lease payments and for the construction of a walk-in freezer.

Now,Humphreyseeks a separate trialfromMatheneyand the otherco-defendants.Mot.,

ECF No. 110. Also, in a separate motion, Humphrey seeks to compel disclosure of

Government witness lists, exhibit lists, and witness statements. Mot., ECF No. 108.

DISCUSSION

I. Motion to Sever

"Federal courts stronglyfavorjointtrials because [t]heypromote efficiencyand serve the

interests of justice by avoiding the scandal and inequity of inconsistent verdicts." United

States v.Breinig, 70 F.3d 850, 852–53 (6thCir. 1995) (quotations omitted). Also, joint trials

promote judicial economy because "there is almost always common evidence against the

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joined defendants[.]" United States v. Lopez, 309 F.3d 966, 971 (6th Cir. 2002) (quotations

omitted). So as a general rule, persons indicted together "should be tried together." Id.

If joinder would "prejudice a defendant," however, the Court may "sever the defendants'

trials." Fed. R. Crim. P. 14(a). But "defendants are not entitled to a separate trial simply

because theymayhave a better chance of acquittal if theywere tried alone." Breinig, 70 F.3d

at 853. Instead, severance is appropriate "only if there is a serious risk that a joint trial would

compromise a specific trial right of one of the defendants, or prevent the jury from making a

reliable judgment about guilt or innocence." Lopez, 309 F.3d at 971.

Challenges to joinder often arise when the Government offers as evidence a codefendant's out-of-court statement; the statement inculpates another defendant; the codefendant does not testify; and the defendant is unable to confront the co-defendant in the

crucible of cross-examination. See e.g. Bruton v. U.S., 391 U.S. 123, 135–36 (1968); see

also U.S. Const. amend. VI (providing the right of the accused "to be confronted with the

witnesses against him."). In that type of case, severance is warranted if the "codefendant's

statement [] facially incriminates the defendant." United States v. Vasilakos, 508 F.3d 401,

407 (6th Cir. 2007).

But a co-defendant's "statements that incriminate only inferentially" do not violate the

ConfrontationClause. Id. Forinstance,"where the defendant's name is redacted and a neutral

term is substituted," no ConfrontationClause violationoccurs and severance is unwarranted.

Id. at 408. Similarly, when a co-defendant's statement only "becomes incriminating when

linked withotherevidence adduced attrial" there is no ConfrontationClause violationand thus

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no need for severance. United States v. Ford, 761 F.3d 641, 654 (6th Cir. 2014) (quotations

omitted).

Here, Humphrey contends that he will be incriminated by co-defendant Matheney's

statement to agents. Mot., ECF No. 110. If Matheneydoes not testifyat trial, Humphreywill be

unable to cross-examine him regarding the incriminating statement. The Court should grant

a severance, Humphrey concludes, to prevent a Confrontation Clause violation. Id.

The Court has a strong preference for trying Humphrey and Matheney together, since

theywere indicted together, and both cases will involve the same witnesses giving testimony

about the warehouse and the marijuana. And Humphrey has not shown that joinder willresult

in a potential Confrontation Clause violation. Matheney's statement does not facially

incriminate Humphrey. Instead, the statement identifies "Tony" as the manwho paid to lease

the warehouse and build the walk-in freezer. At most, Matheney's statement — when

combined withotherevidence at trial— mayinferentiallyincriminate Humphrey.Butinferential

incriminationdoes not violate the ConfrontationClause and thus does not warrantseverance.

Accordingly, the Court will deny Humphrey's motion to sever.

II. Motion to Compel

Humphrey seeks to compel disclosure of the Government's witness list, exhibit list, and

all recorded witness statements. Mot. 9, ECF No. 108. He argues that he needs to know

witness identities to adequately prepare for trial and that withholding this information places

him at an"unjustifiable disadvantage." Mot. 1–6, ECF No. 108. In response, the Government

argues that disclosure is not required by law. Resp., ECF No. 115. Also, the Government

notes that Humphrey has a long history of thwarting application of the law — spending nine

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years as a fugitive — and therefore could reasonably be expected to use earlydisclosure of

witness identities to disrupt the trial. See id.

The Governmentis notobligated to disclose witness identities before trial. United States

v. Perkins, 994 F.2d 1184, 1190 (6th Cir. 1993) ("Ordinarily, a defendant is not entitled to a

list of the names and addresses of the government's witnesses."); see also Fed. R. Crim. P.

16; E.D. Mich Standing Order for Discovery, No. 03-AO-027, p.2 (Oct. 2003) (government

counselshallnotbe "required to automaticallydisclose the names of government witnesses").

Here, the Government plans to disclose witness lists seven days before trial, see Resp. 2,

ECF No. 115, in accordance with the law. Humphrey has not shown any reason the Court

should disregard the standing order or Sixth Circuit precedent. Therefore, the Court will not

compel disclosure of witness lists prior to the Government's anticipated schedule.

Also, the Government has no obligation to disclose witness statements before trial. 18

U.S.C. § 3500(a). The Jencks Act provides that "[i]n any criminal prosecution brought by the

United States, no statement orreport inthe possessionof the United States whichwas made

by a Government witness . . . shall be the subject of subpena, discovery, or inspection until

said witness has testified on direct examinationinthe trial of the case." Id. Defendants do not

possess "a general right to pre-trial discovery of evidence impeaching defense witnesses,

where the prosecutiondenies that anysuchmaterial is exculpatoryand materialunderBrady."

United States v. Presser, 844 F.2d 1275, 1283 (6th Cir. 1988). And "[i]f impeachment

evidence is within the ambit of the Jencks Act, thenthe express provisions of the Jencks Act

control discovery of that kind of evidence" and "the government may not be compelled to

disclose Jencks Act material before trial." Id. At a recent status conference in the case, the

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Governmentrepresented itwould provide Jencks Actmaterialinsufficient time forthe defense

to meaningfully prepare its cross examinations. Accordingly, the Court will not compel

disclosure of witness statements unusually early in the case.

Lastly, the Government plans to provide exhibit lists in accordance with the Court's

standing order that "[e]ach party shall thereafter prepare a typed list of proposed exhibits for

the submission to the Court three (3) days prior to the commencement of trial.” E.D. Mich.

Standing Order for Discovery, No.03-AO-027,p.2-3 (Oct.2003).Since Humphreyhas offered

no authority or reason to depart from the Court's standing order, the Court will not compel

disclosure of exhibit lists now.

ORDER

WHEREFORE, it is hereby ORDERED that Defendant's Motion for Severance

(document no. 110) is DENIED.

ITISFURTHERORDERED thatDefendant's Motions to CompelDisclosure ofWitness

List, Exhibit List, and Additional Witness Information in Advance of Trial(document no. 108)

is DENIED.

SO ORDERED.

s/Stephen J. Murphy, III

STEPHEN J. MURPHY, III

United States District Judge

Dated: October 25, 2016

I hereby certify that a copy of the foregoing document was served upon the parties and/or

counsel of record on October 25, 2016, by electronic and/or ordinary mail.

s/David P. Parker

Case Manager

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