IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA

vs. CASE NO.: 1:10cr27-SPM/GRJ

WILLY PAUL EDOUARD,

Defendants.

_______________________________/

ORDER DENYING MOTION FOR SEVERANCE

This cause comes before the Court on Defendant Edouard’s Motion for

Severance (doc. 100) (which was joined by Defendant Ceneus) and responses

to the Government’s opposition (doc. 106 and doc. 109). The Government has

filed a response (doc. 105) with supplement (doc. 107).

Willy Paul Edouard argues for a severance of trial from co-defendant,

Cabioch Bontemps, who is charged in the same indictment. He states that the

Superseding Indictment includes substantive crimes to which he was not party. 

More specifically, Defendant Edouard states that Count I includes overt acts of

“coercive sex” and Count XIV alleges witness tampering, both allegedly

committed only by Defendant Bontemps. Defendant Edouard argues that the

“spill-over” effect of evidence pertaining to these two allegations would be highly
prejudicial and would inflame and confuse the jury beyond any potential curative

instruction given by the Court.

Fed. R. Crim. P. 8(b) permits the joinder of Defendants in the same

indictment “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.”

The Supreme Court indicates 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) and the Eleventh Circuit has indicated that generally,

defendants jointly indicted should be tried together, particularly in conspiracy

cases, United States v. Cross, 928 F.2d 1030, 1037 (11th Cir. 1991). 

Nevertheless, Fed. R. Crim P. 14(a) permits a severance of the Defendants for

trial if their joinder “appears to prejudice a defendant.” In making this

determination, the court must balance the defendant’s right to a fair trial against

the public’s interest in efficient and economic administration of justice. United

States v. Zielie, 734 F.2d 1447, 1463 (11th Cir. 1984) abrogated on other

grounds by United States v. Chestang, 849 F.2d 528 (11th Cir. 1988). 

“Severance will be granted only if a defendant can demonstrate that a joint trial

will result in specific and compelling prejudice to the conduct of his defense.” Id. 

The 11th Circuit recognizes four grounds under which a severance is appropriate

pursuant to Rule 14:

1. Where the Defendants rely upon mutually antagonistic defenses.

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2. Where one Defendant would exculpate the moving Defendant in a

separate trial, but will not testify in a joint setting.

3. Where inculpatory evidence will be admitted against one Defendant

that is not admissible against the other.

4. Where a cumulative and prejudicial “spill over” effect may prevent

the jury from sifting through the evidence to make an individualized

determination as to each Defendant.

United States v. Chavez, et al., 584 F.3d 1354, 1360-61 (11th Cir. 2009). 

Defendant Edouard suggests that the fourth ground applies in this case. 

Edouard contends that the witness tampering allegation and the coercive sex

allegations lodged against Bontemps will have a prejudicial “spill over” effect on

the jury, and therefore, his case should be severed from Bontemps. However,

“the remedy of severance is justified only if the prejudice flowing from a joint trial

is clearly beyond the curative powers of a cautionary instruction.” United States

v. Alvarez, 755 F.2d 830, 854 (11th Cir. 1985). 

Witness Tampering

Defendant Edouard notes that only Bontemps was charged with witness

tampering. However, there is nothing improper about joint trials although not all

defendants have been charged on each count. See Zielie, 734 F.2d at 1463 

(joinder of defendants is proper even where “an indictment charges multiple

defendants with participation in a single conspiracy and also charges some but

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not all of the defendants with substantive counts arising out of the conspiracy.”)

Edouard further argues that witness tampering is viewed as evidence of a

defendant’s consciousness of guilt, therefore evidence on this charge will have a

prejudicial spill over effect. Any such prejudicial spill over effect is unlikely. The

applicable test is whether it is “within the capacity of the jurors to follow the

court’s limiting instructions and appraise the independent evidence against each

defendant solely upon that defendant’s own acts, statements, and conduct”. 

Cross, 928 F.2d at 1027. This Court is capable of providing an instruction to the

jury that evidence on the witness tampering allegation is applicable only to

Bontemps. There is nothing about this case to suggest that it is so complex or

complicated that a jury could not understand and adhere to any such instruction.1

Edouard presents arguments regarding the Pinkerton rule, asserts that 1

Edouard was a minor actor, and Bontemps’ conduct was not reasonably foreseeable

therefore rendering severance necessary. The case cited by Edouard indicates that

“[u]nder Pinkerton, each member of a conspiracy is criminally liable for any crime

committed by a coconspirator during the course and in furtherance of the conspiracy,

unless the crime did not fall within the scope of the unlawful project, or was merely a

part of the ramifications of the plan which could not be reasonably foreseen as a

necessary or natural consequence of the unlawful agreement.” Alvarez, 755 F.2d at

847. Edouard further states that reasonably foreseeable, but originally unintended

substantive crimes are included in the Pinkerton rule, but this is limited to conspirators

who played more than a minor role in the conspiracy. Edouard has not been charged

with witness tampering so there is no attempt to hold him liable for this conduct,

allegedly engaged in only by Bontemps. Nor does Edouard, or any of the codefendants, have any coercive sex charges pending against them. Those allegations

are only included in the indictment as evidence of an overt act by Bontemps in

furtherance of the scheme. This Court does not believe that the Pinkerton rule, and

therefore any arguments of Edouard being a minor actor or Bontemps’ conduct not

being reasonably foreseeable, is applicable to this case. However, the Court does note

that it seems reasonably foreseeable that a party to an illegal scheme may tamper with

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Coercive Sex

Edouard also argues that the allegations against Bontemps of coerced

sex with one of the alleged victims and the prejudicial effect of evidence on this

subject requires severance. Neither this case nor the allegations of sexual

coercion are so complex that a jury would not understand that Bontemps is the

only co-defendant who allegedly engaged in this conduct. To the extent that

there is potential prejudice, a curative instruction to the jury can be given. Jurors

are presumed to follow the Court’s instructions. United States v. Ramirez, 426

F.3d 1344, 1352 (11th Cir. 2005). This case is not overly complicated and

allegations concerning coercive sex is sufficiently distinct that it should be simple

for a jury to compartmentalize such evidence.

Edouard further argues that having more than one reason for severance

bolsters the need to sever. Simply because Defendant has set forth more than

one argument as to why he thinks his case should be severed, does not mean

that severance is necessary. It merely means that Defendant found more than

one rationale that he thought was sufficient for granting a motion to sever.

Edouard acknowledges that it is an extraordinary remedy to grant a

severance in this situation, but still argues that this case necessitates a

severance. However, Edouard has not sufficiently demonstrated and the Court

has not found any potential prejudice that may result from joinder of the coa witness to prevent them from testifying to any criminal conduct.

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defendants in this action that cannot be remedied by a curative instruction to the

jury. Accordingly, the motion to sever is denied. 

IT IS ORDERED AND ADJUDGED:

 1. The Motion for Severance filed by Willy Paul Edouard (doc. 100)

and adopted by Carline Ceneus is denied.

DONE AND ORDERED this 2nd day of September, 2011.

S/ Stephan P. Mickle 

Stephan P. Mickle

Senior United States District Judge

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