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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Criminal Case No. 08-20481

Plaintiff, HONORABLE SEAN F. COX

v. United States District Judge

D1 - KENNETH FLUELLEN, JR.,

Defendant.

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OPINION & ORDER

Defendant Kenneth Fluellen, Jr. (“Fluellen”) is charged with Conspiracy to Distribute

Cocaine Base, Possession with Intent to Distribute Cocaine Base, Carrying a Firearm during/in

Relation to Drug Trafficking Offense, and Possession of a Firearm with an Obliterated Serial

Number. The matter is currently before the Court on three Motions filed by Fluellen: (1) Motion

for Severance [Doc. No. 21]; (2) Motion for Witness List [Doc. No. 22]; and (3) Motion for

Government Agents to and Law Enforcement Officers to Retain Rough Notes [Doc. No 23]. 

The parties have fully briefed the issues and a hearing was on Tuesday, January 27, 2009. The

Government does not oppose the Motion to Retain Rough Notes, and as such the Court

GRANTS that motion. As Fluellen is satisfied that the Court’s usual practice of setting a date

for disclosure of witnesses at the final pretrial conference will provide him with sufficient notice

of the Government’s witnesses, Fluellen’s Motion for Witness List is MOOT. For the reasons

that follow, Fluellen’s Motion to Sever is DENIED. 

The decision to sever the trials of co-defendants is within the sound discretion of the

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Court. United States v. Gallo, 763 F.2d 1504, 1526-26 (6th Cir.1985); United States v. Davis,

177 F.3d 552, 558 (6th Cir.1999). Fluellen argues that this Court should sever his trial from that

of co-defendant Chavez Miller (“Miller”) due to his inability to cross-examine Miller on

statements Miller made to the police. Apparently, the Government intends to offer testimony by

Sergeant Bernritter of the Flint Police Department as to the following statements recorded in his

police report: 

Miller stated that at the time of his arrest he had in his possession 20 grams of

powder cocaine, 6 or 7 grams of crack cocaine and a rusty .22 caliber handgun. 

Miller originally insinuated that he purchased the items saying, “you have to pay

for everything you get, right?” Miller followed that statement saying that he

found the items. Miller then requested to return to his cell and the interview was

terminated. 

[Doc. No. 37, p.2]. 

Should co-defendant Miller choose not to testify, Fluellen argues his Confrontation

Clause rights under Crawford v. Washington, 541 U.S. 36 (2004), will be infringed upon. The

Court finds that the statements alone, within the context presented, do not implicate Fluellen’s

rights under the Confrontation Clause, see Crawford v. Washington, 541 U.S. 36, 68 (2004), and

Fluellen’s Motion to Sever Trial is therefore DENIED. 

IT IS SO ORDERED.

s/Sean F. Cox 

Sean F. Cox

United States District Judge

Dated: January 28, 2009

I hereby certify that a copy of the foregoing document was served upon counsel of record on 

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January 28, 2009, by electronic and/or ordinary mail.

s/Jennifer Hernandez 

Case Manager

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