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ORDER DENYING MOTIONS TO SEVER

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED STATES OF AMERICA, 

Plaintiff,

v.

RICHARD ALLEN FABEL, 

RODNEY ROLLNESS, 

JOSHUA BINDER, 

RICKY JENKS, and

PAUL FOSTER

Defendants.

Case No. CR06-041L

ORDER DENYING MOTIONS TO

SEVER

I. INTRODUCTION

This matter comes before the Court on defendant Fabel’s “Motion for Severance of

Defendants and Counts” (Dkt. #276), defendant Rollness and Binder’s “Motion to Sever Counts

12, 13, 14, and 15” (Dkt. #280), defendant Binder’s “Motion to Sever Defendant Rollness” (Dkt.

#291), and defendant Jenks’ “Motion to Sever Trial” (Dkt. #378). All four defendants seek to

sever either defendants or counts from the upcoming trial. 

II. DISCUSSION

A. Severance of Defendants

Defendants Jenks, Binder and Fabel each seek to sever their trials under Federal Rule of

Criminal Procedure 14 to avoid the prejudicial impact of evidence introduced to prove

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ORDER DENYING MOTIONS TO SEVER

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allegations targeted only at their codefendants and to address Sixth Amendment concerns related

to the Government’s use of incriminating extra-judicial statements made by defendants Rollness

and Binder. For the reasons discussed below, defendants’ requests for severance are denied.

1. Prejudicial impact of “spillover” evidence

Both Fabel and Jenks argue that they should have their trials severed because evidence

relating to the murder of Michael Walsh, for which they are not charged, will prejudice the jury. 

Jenks also argues that evidence relating to the trafficking of stolen motorcycles will have a

similar prejudicial effect. In addition, both defendants contend that the introduction of 404(b)

evidence relating primarily to Rollness and Binder will lead to undue prejudice as well.

It is well established that “there is a strong preference in the federal system for joint

trials.” United States v. Decoud, 456 F.3d 996, 1009 (9th Cir. 2006). Thus, a court “should

grant a severance under Rule 14 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.” Zafiro v. United States, 506 U.S. 534, 539 (1993). 

The Ninth Circuit has identified four factors for a court to consider in evaluating the

prejudicial impact of a joint trial: (1) whether the jury may reasonably be expected to collate and

appraise the individual evidence against each defendant; (2) the judge's diligence in instructing

the jury on the limited purposes for which certain evidence may be used; (3) whether the nature

of the evidence and the legal concepts involved are within the competence of the ordinary juror;

and (4) whether [defendants] could show, with some particularity, a risk that the 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. United States v. Fernandez, 388 F.3d

1199, 1241 (9th Cir. 2004). The first two factors are the most important to a court’s analysis. 

Id.

Analyzing the defendants’ arguments in light of these factors, the Court concludes that

severance is not required. Though some evidence will be introduced that is relevant only to the

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guilt of a subset of defendants, the Court believes that the jury will be able to compartmentalize

the evidence specific to individual defendants. In evaluating this factor in a similar context, the

Ninth Circuit has stated that “joint trial is particularly appropriate where the codefendants are

charged with conspiracy, because the concern for judicial efficiency is less likely to be

outweighed by possible prejudice to the defendants when much of the same evidence would be

admissible against each of them in separate trials.” Id. at 1242. This principle also carries over

to the joint trial of RICO defendants: 

Proof of [RICO] elements may very well entail evidence of numerous

criminal acts by a variety of persons, and each defendant in a RICO case

may reasonably claim no direct participation in some of those acts. 

Nevertheless, evidence of those acts is relevant to the RICO charges against

each defendant, and the claim that separate trials would eliminate the socalled spillover prejudice is at least overstated if not entirely meritless.

Id. (quoting United States v. DiNome, 954 F.2d 839, 843-44 (2d Cir. 1992), rev’d on other

grounds, Rega v. United States, 263 F.3d 18 (2d Cir. 2001)).

Further, the use of “careful and frequent limiting instructions to the jury, explaining how

and against whom certain evidence may be considered, can reduce or eliminate any possibility

of prejudice arising from joint trial.” Id. at 1243. Defendants have not offered a compelling

reason why such limiting instructions would not be equally effective in this case. See United

States v. Joetzki, 952 F.2d 1090, 1094 (9th Cir. 1991) ( “A defendant seeking severance based

on the ‘spillover’ effect of evidence admitted against a co-defendant must also demonstrate the

insufficiency of limiting instructions given by the judge.”). Though certainly this case presents

complexities, the Court believes that the factual questions and legal concepts at issue are within

the competence of an ordinary juror. Further, “juries are presumed to follow their instructions.” 

Zafiro v. United States, 506 U.S. 534, 540 (1993). As such, the Court concludes that the danger

of prejudice due to the “spillover” of evidence, including 404(b) evidence, is insufficient to

justify severance for any of the defendants.

2. Sixth Amendment 

The Court is more concerned about issues of severance relating to potentially

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incriminating statements by codefendants. In Bruton v. United States, 391 U.S. 123, 135-37

(1968), the Supreme Court held that a defendant is deprived of his Sixth Amendment right to

confront his accuser when the incriminating confession of a nontestifying codefendant is

introduced at their joint trial. Not all non-testifying codefendant statements, however, are barred

by the Sixth Amendment. For instance, a statement, not incriminating on its face, that only

implicates the defendant when evaluated by the jury in connection to other admitted evidence is

admissible. Richardson v. Marsh, 481 U.S. 200, 211 (1987) (“the Confrontation Clause is not

violated by the admission of a nontestifying codefendant’s confession with a proper limiting

instruction when, as here, the confession is redacted to eliminate not only the defendant’s name,

but any reference to his or her existence.”). That being said, the Government cannot evade

Bruton’s restrictions by simply removing a defendant’s name from a statement and replacing it

with “an obvious blank, the word ‘delete,’ a symbol,” or any other substitution that would

“similarly notify the jury that a name has been deleted.” Gray v. Maryland, 523 U.S. 185, 195

(1998). The Ninth Circuit has made it clear that simply substituting a defendant’s name with a

neutral pronoun is also constitutionally deficient “if it is obvious that an alteration has occurred

to protect the identify of a specific person.” United States v. Peterson, 140 F.3d 819, 822 (9th

Cir. 1998). 

Here, defendants Fabel, Jenks and Binder have identified a number of statements that

they believe violate Bruton. In response, the Government has offered a number of proposed

redactions. The question for the Court in evaluating these redactions will be whether the

redactions render the statements more similar to those that were deemed permissible in

Richardson or to those deemed unconstitutional in Gray and Peterson. Though the matter will

be taken up more extensively in conjunction with defendants’ motions in limine, the Court is not

persuaded at this time that the redactions offered by the Government are sufficient to avoid

making the identity of certain defendants obvious to the jury. For instance, the Government

contends that the Rollness statement indicating that the decision to murder Michael Walsh

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On December 7, 2006 the Court continued the trial to March 5, 2007

ORDER DENYING MOTIONS TO SEVER

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“came from higher up (Smilin’)” can be cured of any constitutional infirmities by simply

removing the reference to “Smilin’.” Response to Fabel Motion at p. 11. Given Fabel’s position

in the Hells Angels, the Court believes this redaction raises concerns very similar to those

presented in Peterson where the Ninth Circuit found that a redacted statement made it clear that

the “codefendant was pointing an accusatory finger at someone and it was not difficult for the

jury to determine that that person was the other defendant on trial.” 140 F.3d at 822. In order to

avoid severance, the Government will need to further refine its redactions to ensure that

defendants’ identities cannot be inferred by ordinary jurors. If it cannot do so, it must either

sever those defendants implicated by the statements or abandon the statements all together. At

this time, however, defendants’ efforts to sever based on Bruton are denied. If the Government

is unable to adequately address the Court’s concerns regarding redactions, the Court will take up

the matter again at a later time. 

3. Speedy Trial

Defendant Fabel also seeks to have his trial severed because he has not joined his

codefendants’ requests to continue the trial.1

 Under the Speedy Trial Act, a grant of continuance

to one defendant is excludable time for a codefendant. United States v. Butz, 982 F.2d 1378,

1381 (9th Cir. 1993). Fabel’s request for severance based on the Speedy Trial Act is denied.

B. Severance of Counts

1. Severance of Counts 12-15

Defendants Rollness, Binder and Fabel also seek to sever counts 12-15 of the Third

Superceding Indictment. They argue that the allegations contained in these counts relate only to

actions taken after Rollness and Binder left the Hells Angels and that they are therefore too far

removed from the rest of the indictment to be joined in the Government’s RICO case. Federal

Rule of Criminal Procedure 8(a) states that:

The indictment or information may charge a defendant in separate counts

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with 2 or more offenses if the offenses charged . . . are of the same or

similar character, or are based on the same act or transaction, or are

connected or constitute parts of a common scheme or plan.

The Government argues that joinder is appropriate because the conduct described in Counts 12-

15 are part of “a common scheme or plan” and the crimes are of “the same or similar character”

to the activities described in the rest of the indictment. The Court agrees.

In determining whether counts arise from a common scheme or plan the Court asks

“whether ‘commission of one of the offenses . . . either depended upon . . . or necessarily led to

the commission of the other; proof of one act . . . either constituted . . . or depended upon proof

of the other.’” United States v. Jawara, No. 05-30266, 2007 WL 121297, at *5 (9th Cir. Jan. 19,

2007) (quoting United States v. Halper, 590 F.2d 422, 429 (2d Cir. 1978). Where the joined

counts are logically related and have a large amount of overlapping proof, joinder is appropriate. 

Id. The Government has identified a substantial number of witnesses who would testify at both

trials if the counts were severed. The Court believes this weighs in favor of joinder. See Id.

(Jawara involved two offenses where overlapping evidence was minimal).

The similarity in the character of the crimes alleged in counts 12-15 and those alleged in

the rest of the indictment also weighs in favor of joinder. In Jawara, the Ninth Circuit

established the factors to be considered in evaluating the propriety of joinder under this prong of

Rule 8(a):

We consider it appropriate to consider factors such as the elements of the

statutory offenses, the temporal proximity of the acts, the likelihood and

extent of evidentiary overlap, the physical location of the acts, the modus

operandi of the crimes, and the identity of the victims . . . .

Id. at *10. The similar nature of the joined offenses must be apparent on the face of the

indictment. Id. 

Here, the similarity of the crimes is apparent on the face of the indictment. The crimes

alleged in counts 12-15, counts 1, 2, 6-11 and racketeering acts 4-7 all involve the trafficking of

stolen motorcycles in the Northwest by defendant Rollness between January 2001 and January

2004. Because of the similarity of the offenses, the similarity of the location of these offenses,

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the similarity in modus operandi and the temporal proximity of the acts, there will be substantial

evidentiary overlap between the counts. All of these facts also support joinder. 

Nor is severance justified under the principles contained in Federal Criminal Rule of

Procedure 14. In order to prevail on a motion to sever under Rule 14, the defendant must

demonstrate that joinder “was so manifestly prejudicial that it outweighed the dominant concern

with judicial economy and compelled exercise of the court’s discretion to sever.” United States.

v. Armstrong, 621 F.2d 951, 954 (9th Cir. 1980). The Court does not believe that joinder of the

counts 12-15 is manifestly prejudicial. In any event, limiting instructions will suffice to avoid

any risk of prejudice that may exist. Zafiro v. United States, 506 U.S. 534, 539 (1993) (“less

drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice.”).

2. Severance of Racketeering Act 6A

Fabel also seeks to sever racketeering act 6A which involves the extortion and trafficking

of alleged victim B.T.’s stolen motorcycle by Rollness. In doing so, Fabel contends that “[t]here

is no evidence that this incident had anything whatsoever to do with the Hells Angels motorcycle

club or any of the other defendants in this case.” Fabel Motion at p. 13. The Government

argues, however, that there is evidence to establish that Fabel was indeed involved in the

extortion and threat at issue in racketeering act 6A. The Government also contends that even if

Fabel were not involved, the evidence would nevertheless be admissible because of its relevance

to the Government’s broader RICO case. The Court agrees that racketeering act 6A is properly

joined. Fabel’s request to sever is therefore denied.

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III. CONCLUSION

For the foregoing reasons, defendants’ motions to sever (Dkt #276) (Dkt. #280) (Dkt

#291) (Dkt. #378) are DENIED.

DATED this 30th day of January, 2007

A

Robert S. Lasnik

United States District Judge

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