IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA )

)

v. ) CRIMINAL NO. 15-CR-00260-KD-N

)

GREGORY LAMAR MARSHALL )

ORDER

This matter is before the Court on Defendant Marshall’s Motion to Sever (Doc. 39), the 

government’s response (Doc. 43), and Marshall’s reply (Doc. 57). Upon consideration, the 

motion is DENIED. 

Marshall moves to have his trial severed from that co-defendant Hynds-Julio citing 

statements made by co-defendant Hynds-Julio that he alleges would violate his Sixth 

Amendment right to confront witnesses. Federal Rule of Criminal Procedure 14 states:

(a) Relief. If the joinder of offenses or defendants in an indictment, an 

information, or a consolidation for trial appears to prejudice a defendant or the 

government, the court may order separate trials of counts, sever the defendants' 

trials, or provide any other relief that justice requires.

(b) Defendant's Statements. Before ruling on a defendant's motion to sever, the 

court may order an attorney for the government to deliver to the court for in 

camera inspection any defendant's statement that the government intends to use as 

evidence.

Fed. R. Crim. P. 14.

“Rule 14 requires the district court to balance the right of defendants to a fair trial, absent 

the prejudice inherent in a joint trial, against the interests of judicial economy and efficiency.” 

United States v. Gonzalez, 804 F.2d 691, 694 (11th Cir. 1986). In the Eleventh Circuit, it is 

“‘well-settled principle that it is preferred that persons who are charged together should also be 

tried together,’ particularly in conspiracy cases, the denial of a motion for severance will be 

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reversed only for abuse of discretion.” United States v. Smith, 918 F.2d 1551, 1559 (11th Cir. 

1990)(quoting United States v. Morales, 868 F.2d 1562, 1571 (11th Cir.1989)).

Trial courts have discretion to grant a severance if a defendant carries his burden to show 

both that (1) a joint trial would actually prejudice the defendant and (2) a severance is the proper 

remedy for the prejudice, rather than jury instructions or another remedy. Zafiro v. United States, 

506 U.S. 534, 539-41 (1993); United States v. Brown, 505 F.3d 1229, 1268-69 (11th Cir. 2007). 

As to the first Zafiro step, a defendant “must carry the heavy burden of demonstrating the lack of 

a fair trial due to actual, compelling prejudice.” United States v. Chavez, 584 F.3d 1354, 1360 

(11th Cir. 2009). As to the second Zafiro step, severance is not automatically required even if 

prejudice is shown. Zafiro, 506 U.S. at 539-40. A court’s limiting instruction to the jury will 

often cure any prejudice resulting from a joint trial. Id. at 539. Zafiro, 506 U.S. at 539. “Aside 

from the two categories of defendants specified by the Supreme Court, most other defendants 

prejudiced by a joint trial are entitled only to curative instructions.” United States v. Blankenship,

382 F.3d 1110, 1123 (11th Cir.2004) (discussing “the two-step test” in Zafiro).

Marshall has failed demonstrate why a remedy short of severance would be insufficient 

to cure any compelling prejudice resulting from a joint trial. Thus, he has not satisfied the “heavy 

burden” required for severance and the motion is DENIED.

DONE and ORDERED this 25th day of January 2016.

/s/ Kristi K. DuBose 

KRISTI K. DuBOSE 

UNITED STATES DISTRICT JUDGE

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