UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America,

v. Criminal No. 06-cr-71-1-2

Elaine A. Brown and

Edward L. Brown

O R D E R

During the recent pretrial conference, the court raised the

issue of severing the defendants’ trials. The parties were

advised that the court was inclined to sever, and they were

invited to submit memoranda on the subject. The government,

which opposed severance initially, has responded, stating that

although it maintains that severance is not required, it

nevertheless withdraws its objection to separate trials (document

no. 59). Defendants expressed their opposition to severance at

the hearing and have since filed a pleading adamantly opposing

severance (document no. 66).

Several potential problems associated with a joint

prosecution of this case cause the court some disquiet. First,

the defendants are likely to be representing themselves at

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1 Defendants each say they are actively seeking to retain

legal counsel (or at least stand-by counsel) to assist them,

which they say they can financially afford. But they will only

retain “competent counsel,” by which they mean a qualified

attorney who both shares their jurisprudential philosophy and

unorthodox construction of the constitution and applicable

statutes, and who will make the arguments and mount the

“defenses” they think pertinent. Defendants are unlikely to find

such counsel since the Supreme Court has consistently upheld the

constitutionality of the federal income tax system, removing that

issue (apparently their main contention) from this case, and

because jury nullification is not an argument or defense allowed

in this circuit.

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trial1, notwithstanding that they have been encouraged to

recognize their own inability to adequately defend themselves in

a serious federal criminal prosecution, and have been urged to

retain competent legal counsel in their own best interests. 

Given that circumstance, a joint trial will pose a heightened

risk that one ineffective pro se defendant will blindly and

uninformedly act in a way that inures to the substantial

detriment of the other. And, although the government says it

does not anticipate any evidentiary problems under Bruton v.

United States, 391 U.S. 123 (1968), it is unlikely that either

defendant will recognize or be capable of adequately protecting

himself or herself at trial with respect to such issues. 

Finally, each defendant might have defenses available to him or

her that might only be effectively presented in a separate trial,

or, conflicting rights between them might only be protected in a

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separate trial. See, e.g., United States v. Dobson, 2003 WL

22427984 (E.D.Pa., August 18, 2003) (severance of trials for

husband and wife defendants appropriate in mail fraud prosecution

where joint trial would force husband to choose between right to

testify in his own defense and his right not to testify adversely

against his wife).

A court may sever trials if a joint trial “appears to

prejudice a defendant.” Fed. R. Cr. P. 14. “[N]o defendant

should ever be deprived of a fair trial because it is easier or

more economical for the government to try several defendants in

one trial rather than in protracted multiple trials.” United

States v. Boscia, 573 F.2d 827, 833 (3rd Cir. 1978). “[I]f 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,” then the

trial judge should sever the cases under Rule 14. Zafiro v.

United States, 506 U.S. 534, 539 (1993).

Although the court is concerned that defendants may not be

acting in their own best interests, still, given that neither the

government nor the defendants have moved for severance in this

case, that defendants are adamantly opposed to severance, and

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that Bruton problems will arise only if “powerfully

incriminating” statements by one defendant implicating a codefendant are admitted, the court will not sua sponte order the

trials severed under Rule 14. Admittedly, the record does not

disclose any actual conflicts, nor does it suggest that any

specific trial right of either defendant would be compromised by

a joint trial (there is no suggestion that either defendant might

offer adverse testimony against the other), nor does it appear

that a joint trial would undermine a jury’s ability to make a

reliable judgment about guilt or innocence with respect to either

defendant. The court’s concerns in that regard arise almost

entirely from its assessment of defendants’ respective

inabilities to adequately defend themselves, but no specific

problem is apparent, and defendants do not disclose any.

Nevertheless, defendants are encouraged to consider

carefully the points raised, as well as the difficulties inherent

in a joint trial in which each is acting pro se, and to

independently determine whether either wishes to sever his or her

case from the other. The court will consider a motion to sever

filed by either defendant prior to jury draw.

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And, to avoid any misunderstanding later, defendants are

again reminded that the constitutionality of the federal tax

system will not be an issue at trial, nor will either defendant,

or defense counsel, be permitted to argue or interpose jurynullification as a defense in this case.

Conclusion

Defendants’ “Motion to Retain Joint Trial and Objection to

AUSA Withdrawal of its Objection to Severance” (document no. 66)

is granted to the extent the court will not sua sponte order a

severance.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

November 1, 2006

cc: Jean B. Weld, Esq.

William E. Morse, Esq.

Elaine A. Brown, pro se

Edward L. Brown, pro se

U.S. Probation

U.S. Marshal

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