Opinion
Case No. 03-40100-01-SAC, Case No. 03-40100-02-SAC, Case No. 03-40100-03-SAC, Case No. 03-40100-04-SAC, Case No. 03-40100-05-SAC
April 21, 2004
MEMORANDUM AND ORDER
This case, arising from the discovery of controlled substances during a traffic stop, comes before the court on multiple motions filed by defendants. Defendants Concepcion-Ledesma, Beydoun and Al-Haj have been charged with one count of possession of approximately 332 pounds of pseudoephedrine having reasonable cause to believe it would be used to manufacture methamphetamine. Defendants Yaffai and Al-Haj have been charged with one count of possession of approximately 198 pounds of pseudoephedrine having reasonable cause to believe it would be used to manufacture methamphetamine. All five defendants have been charged with one count of conspiracy to unlawfully possess approximately 530 pounds of pseudoephedrine having reasonable cause to believe it would be used to manufacture methamphetamine, and with one count of traveling in interstate commerce with the intent to carry on an unlawful activity.
Defendants Concepcion-Ledesma, Yaffai, and Al-Haj have each filed motions to suppress which the government opposes, and which were the subject of an evidentiary hearing held March 17, 2004. Based upon the evidence established at that hearing, the arguments presented at that time, and the authorities included in the parties' briefs, the court finds as follows.
Factual Background
On May 20, 2003, at approximately 3:15 p.m., Kansas State Trooper Jarett Ranieri was on patrol in Geary County Kansas on I-70 when he saw three vehicles westbound in the slow lane which he believed to be traveling together. Leading the pack was a black SUV with a Michigan license plate. The SUV was followed by a black Chevrolet van which did not appear to have a license plate, and this was followed by a red pickup bearing Ohio plates. Trooper Ranieri believed that the three vehicles were traveling together because of the constant position of all three in the slow lane and their proximity of approximately four or five car lengths which the vehicles maintained during his observation of them.
Trooper Ranieri stopped the black van for failing to display a license plate which was clearly visible and clearly legible, as required by K.S.A. § 8-133. Not until the trooper exited his patrol car and came within approximately four or five feet of the vehicle on foot, could he see that the vehicle had a temporary tag on display in the back window. Even at that distance he could hardly see through the window in which the tag was posted because the tinting on the van windows was "extremely dark."
The trooper told the driver why he had stopped her, then obtained the occupants' Michigan driver's licenses, which identified the driver as Maria Concepcion-Ledesma and the passenger as Lena Beydoun. He also obtained the vehicle registration.
The trooper testified that both women were unusually nervous for a mere traffic stop. He stated that defendant Concepcion was "extremely nervous," as evidenced by unusually shaky hands while handing him her license, and by her shaky voice. Passenger Beydoun avoided eye contact with him. Trooper Ranieri thought this lack of eye contact was unusual and constituted evidence of nervousness because most people he stops for mere traffic violations are friendly.
When asked the reason for their travel, defendant Concepcion-Ledesma replied that the two were traveling from Detriot, Michigan to Los Angeles, California on vacation for a "week or two." When the trooper asked who they would be staying with, she replied that she didn't know, but that they would find some friends. Trooper Ranieri noticed that there was very little luggage in the van, leading him to believe that this was not a vacation, but a quick trip out and back. He also thought he smelled air freshener, which he knew is often used to conceal the odor of illegal drugs. No air freshener was found in the vehicle, however, and he admitted that the sweet, fruity smell could have been placed in the vehicle a few days before by the dealer or seller, as the vehicle had been purchased just three days before the stop.
When he asked whether they were traveling with the red Ford pickup or the black Chevy SUV, the driver denied traveling with anyone. Trooper Ranieri disbelieved this response. He thought it suspicious that one would take such a new vehicle on such a long trip, from a location where narcotics are warehoused to a destination known to be a source city for drugs.
Trooper Ranieri went to his vehicle, prepared a warning citation, then returned to the van with defendants' documents. He testified that he returned the driver's licenses, insurance and registration papers to the defendants at that time. In contrast, defendant Concepcion-Ledesma testified that he never returned her driver's license, the vehicle registration, or gave a warning citation, and that she did not see them until later that evening, when she was at the jail.
The trooper then advised the women, "Have a safe one," then immediately asked if the driver would consent to a search, stating:
Trooper: This is just a warning paper saying like if you get stopped again you can show them that you have been warned and if you get stopped again (inaudible).
Females: Okay.
Trooper: Thank you girls. You have a safe one. Ma'am you wouldn't have anything, uh, weapons, or any type of illegal stuff in the back?
Females: No.
Trooper: Could we look, could we take a minute to look back there? Just your bag and stuff.
Females: Yeah.
Trooper: Just for my safety could I have you two hop out, just for my safety, just take five minutes — get you moving down the road. We have a lot of stuff moving back and forth. Thank you.
Gvmt. Exh. 1.
The two women then exited the vehicle and moved to its front, in compliance with the trooper's request. He and Trooper Dean, who had recently arrived, then began to search the van. Trooper Ranieri testified that when they opened the back doors of the van, he noticed scarred bolts, and that the carpet and side panels were not matched up but were offset. These observations led him to conclude that the interior panels of the van had been removed and reinstalled. Because of his training and experience, he suspected that the panels had been removed to create a hidden compartment used to conceal drugs or contraband. He then moved to the side of the van and opened the side doors to search further.
Defendant testified that she objected to the search of the van when the trooper moved to the side doors, and stated her belief that the search was to be only of their luggage. The government denies this, and states that at no time did anyone object to the search in any way. When the trooper looked behind the panels, he discovered approximately 332 pounds of pseudoephedrine, a key ingredient in the manufacture of methamphetamine. The two women were then arrested and Mirandized.
The van was then taken to Junction City, Kansas, where it was more thoroughly searched. In Trooper Ranieri's experience, it is very unusual for two females to be transporting that quantity of drugs by themselves. Usually, an escort vehicle is used. At approximately 4:30 p.m., Trooper Dean called Russell County Sheriff's Department Deputy Kelly Schneider to advise him that they had found a large quantity of pseudoephedrine in a vehicle, and to be on the lookout for the other two vehicles which had been seen in the vicinity of the black van at the time it was stopped. Thereafter, defendant Concepcion-Ledesma's cell phone rang repeatedly, and officers determined that the caller was Anwar Yaffai. Trooper Dean recognized this name as the registered owner of the red pickup, which Trooper Ranieri had seen with the black van. Search of defendant Concepcion-Ledesma's purse also revealed a pay stub for her from Anwar Yaffai. A second call was then made to Sergeant Schneider, asking him to stop the red pickup and arrest Yaffai if he were present. Troopers thereafter discovered the name "Ahmed" in defendant Concepcion-Ledesma's address book.
Trooper Dean had independently checked the registration on the red pickup prior to stopping to serve as back up for Trooper Ranieri's search of the black van.
At approximately 5:30p.m., Russell County Sheriff's Deputy Sergeant Kelly Schneider spotted the red pickup and black SUV still driving in close proximity, with the SUV approximately 100 yards in front of the pickup, westbound on I-70. He ran the license tags then relayed toTrooper Dean that the pickup bearing Ohio plates was registered to Anwar Yaffai, and the black SUV bearing Michigan plates was registered to Ahmed Al-Haj. Trooper Dean told Sergeant Schneider that both those names had been found on documents which had been in defendant Concepcion-Ledesma's possession.
Sergeant Schneider then called for Deputy Houck to stop the red pickup, while Sergeant Schneider stopped the black SUV. After stopping the red Ford pickup, Deputy Houck determined that it was driven by defendant Anwar Yaffai, and that there were no passengers. The deputy advised the driver why he had been stopped, and arrested him pursuant to instructions from Sergeant Schneider. Subsequent search of the pickup disclosed two hidden compartments in the wheel wells, containing approximately 198 pounds of pseudoephedrine.
Sergeant Schneider stopped the black SUV, whose tags were registered to Ahmed Al-Haj. The vehicle was driven by defendant Al-Haj and contained one passenger. Al-Haj said that he was going from Detroit, Michigan to Los Angeles, California with his girlfriend, on vacation. The passenger said she had no identification, so Sergeant Schneider asked her name. When she replied, she could hardly sit still or spell her last name, leading him to believe she was lying. It was later revealed that the passenger's real name is April Pelfrey.
Motions to Suppress
Concepcion-Ledesma's motion
In this motion, defendant Concepcion-Ledesma challenges the scope of her detention, denies any consent to search, challenges the scope of the search, and alleges lack of probable cause for the non-consensual search. The government refutes each of these contentions, which the court examines below.
Scope of detention
Defendant does not challenge the initial stop, but asserts that her detention was illegal because the trooper, who stopped her because he saw no license plate, was required to cease the detention once he saw her temporary tag, which was valid.
In support of her argument, defendant relies primarily upon the case of United States v. McSwain, 29 F.3d 558 (10th Cir. 1994). In McSwain, a trooper saw a vehicle with neither a front license plate nor a rear license plate, but with a temporary registration sticker posted in the rear window. The trooper was unable to read the expiration date on the sticker because it appeared to be covered with reflective tape, so stopped the vehicle to verify the validity of the temporary sticker. As the trooper approached the vehicle on foot, he noticed that the temporary registration sticker was from Colorado and that the reflective tape merely was a new device used by the State of Colorado to prevent alteration of the sticker's expiration date. He then observed that the sticker was valid and had not expired. The trooper thereafter spoke to the occupants of the vehicle, and detained them.
The Tenth Circuit in McSwain held that the initially valid stop evolved into an unreasonable detention, in these words:
Trooper Avery stopped Mr. McSwain for the sole purpose of ensuring the validity of the vehicle's temporary registration sticker. Once Trooper Avery approached the vehicle on foot and observed that the temporary sticker was valid and had not expired, the purpose of the stop was satisfied. Trooper Avery's further detention of the vehicle to question Mr. McSwain about his vehicle and travel itinerary and to request his license and registration exceeded the scope of the stop's underlying justification.29 F.3d at 561.
Defendant alleges, based upon McSwain, that law enforcement officers must end a traffic stop without requesting a driver's license and registration or asking any questions where the officer's reasonable suspicion has been completely dispelled. See Gross v. Pirtle, 245 F.3d 1151, 1157 (10th Cir. 2001) (citing McSwain as "holding that, after purpose of the traffic stop ended, reasonable suspicion no longer existed and further detention of the driver exceeded the permissible scope.") According to defendant, Trooper Ranieri should have ended the stop upon determining that defendant's temporary registration tag was displayed in the rear window and had a valid date, rendering her detention thereafter unconstitutional. The court disagrees.
The facts in the present case are distinguishable from those in McSwain because of the differing nature of the violations involved. In McSwain, the driver was stopped and detained "for the sole purpose of ensuring the validity of the vehicle's temporary registration sticker." 29 F.3d at 561. In other words, the trooper wished to see the expiration date on the registration sticker. Here, defendants were initially stopped because the trooper did not see any registration sticker, but were detained for a violation of K.S.A. § 8-133, which requires a vehicle registration to be displayed in a manner that is "clearly visible" and "clearly legible."
The statute, captioned "Display of license plate," provides in pertinent part:
Every license plate shall at all times be securely fastened to the vehicle to which it is assigned so as to prevent the plate from swinging, and at a height not less than 12 inches from the ground, measuring from the bottom of such plate, in a place and position to be clearly visible, and shall be maintained free from foreign materials and in a condition to be clearly legible.
Kansas courts have rarely addressed this statute, but have strictly construed its terms. See State v. Hayes, 8 Kan. App. 2d 531, 532-33 (1983) (finding that "legible" means that all of the tag must be legible, and that the display of an illegible or obscured vehicle tag is a misdemeanor even if the vehicle is duly licensed in another state). These "clearly visible" and "clearly legible" requirements of this statute are applicable to temporary registration tags. Because defendant's registration tag was not clearly visible to Trooper Ranieri until he approached the vehicle on foot, the statute was violated.
The failure to properly display the registration in accordance with Kansas law is a violation in and of itself, regardless of whether its display complied with the requirements of some other issuing state. Under these circumstances, further detention and questioning of defendants is permissible. See United States v. Tipton, 3 F.3d 1119, 1122-23 (7th Cir. 1993); United States v. Dumas, 94 F.3d 286, 290 (7th Cir. 1996) (holding that the "driver's failure to display prominently a registration sticker, alone, would provide an officer with reasonable suspicion sufficient to justify at the very least an investigatory stop."), cert denied, 520 U.S. 1105 (1997); United States v. Dexter, 165 F.3d 1120 (7th Cir. 1999). This court has previously reviewed and rejected a similar claim which the Tenth Circuit has affirmed. See United States v. Poke, 81 Fed. Appx. 712, 2003 WL 22701661 (10th Cir. Nov. 17, 2003). No basis for suppression on these grounds has been shown.
Lack of consent
Defendant next contends that she could not have consented to a search of the vehicle because at the time the Trooper asked her for consent, he retained her driver's license. Defendant contends that her license was not returned to her until 11:00 p.m. that evening, long after the mid-afternoon stop. The government asserts that the trooper returned defendant's driver's license to her at the time he returned her other documents to her and gave her the warning citation, and that her consent was clearly requested and voluntarily given soon thereafter.
Although the Supreme Court generally disfavors bright-line rules in the Fourth Amendment context, see Ohio v. Robinette, 519 U.S. 33, 39 (1996), the Tenth Circuit does apply a bright-line rule that "an encounter initiated by traffic stop may not be deemed consensual unless the driver's documents have been returned to him." United States v. Gonzales-Lerma, 14 F.3d 1479, 1483-84 (10th Cir. 1994). See United States v. Soto, 988 F.2d 1548, 1557 (10th Cir. 1993) (stating the clear principle that where documentation is not returned, the driver is not free to go and detention is not consensual); United States v. Shareef, 100 F.3d 1491, 1501 (10th Cir. 1996) (finding that retention of "any materials provided" by the driver results in illegal detention).
The court has reviewed the conflicting testimony on this issue, as well as the videotape of the stop. The court finds that the videotape supports the trooper's testimony that he returned defendants' documents to defendants before requesting consent to search. Papers can be seen in Trooper Ranieri's hands as he walks from his patrol car to the passenger side of defendant's van, after writing the warning. No papers are in his hands when he reappears soon thereafter on the videotape. Although the videotape does not reveal which papers are in his hands, and the interaction at the passenger window is obscured by the van itself, it is apparent that Trooper Ranieri gave some papers to defendants, contradicting defendant's testimony that no papers were given to her. The audio portion of the tape reflects that at that time, Trooper Ranieri told defendant he was giving her a warning citation. Additionally, defendant's testimony is contradicted by the rebuttal testimony of DEA agent Carrington, who testified that he saw defendant's driver's license and the warning citation issued by Trooper Ranieri in defendant's purse, before interviewing her that evening. Given the compelling nature of the testimony contradicting defendant's testimony, the court simply finds her testimony to lack credibility.
Defendant additionally raises other issues, including the trooper's failure to tell them they were free to go, in stating only: "Thank you girls. You have a safe one." The court finds that the trooper's use of this phrase, although not ideal, was sufficient to put defendant on notice that she was free to go, given the surrounding circumstances including his return of her documents and a warning. Defendant's assertion that the presence of two troopers was inherently coercive to the two females finds no basis in the facts, as the videotape reveals, consistent with Trooper Ranieri's testimony, that only one trooper was present when consent was requested. The government has met its burden of establishing that consent was given freely and intelligently without implied or express duress or coercion.
Scope of search
Defendant next contends that even if she voluntarily consented to a search, the search exceeded the scope of her consent. Specifically, defendant contends that her consent was limited to a search of their luggage, and did not extend to the general search of the van which the trooper conducted.
The videotape is consistent with the testimony given at the evidentiary hearing. Trooper Ranieri did not specifically ask to search the vehicle, or look in the van. Instead, he limited his request to look in "just your bag and stuff," and stated that he would take "a minute to look." Trooper Ranieri testified that by "stuff," he meant the van and the entire back of the van. Defendant Concepcion-Ledesma testified that she understood "stuff" to mean the items in the back of the van, namely the bag and luggage and cooler, but not the entire van.
The court examines the totality of the circumstances to determine whether a search remains within the boundaries of the consent given. United States v. Hooper, 47 Fed. Appx. 531, 534, 2002 WL 1972407, *3 (10th Cir. Aug.27, 2002). The general standard for measuring the scope of consent is based on "objective reasonableness," meaning the court asks what the typical reasonable person would have understood by the exchange between the officer and the suspect. United States v. Pena, 143 F.3d 1363, 1367-68 (10th Cir.), cert. denied, 525 U.S. 903 (1998). Scope "is generally defined by its expressed object," and "is limited by the breadth of the consent given." United States v. Elliott, 107 F.3d 810, 814-15 (10th Cir. 1997) (quotations and citations omitted).
In United States v. Wald, 216 F.3d 1222, 1228 (10th Cir. 2000), the court found that consent was not general when limited to a "quick look inside the vehicle." The court recognized the general proposition that a defendant's "failure to object when the search exceeds what he later claims was a more limited consent is an indication the search was within the scope of consent," (citation omitted), but found that rule to apply only when the defendant initially gave a general authorization to search. Id. The court found no consent despite defendant's failure to object to the officer's search of the trunk, because the limited consent to take a "quick look inside" the passenger compartment did not encompass a prolonged look inside the trunk.
Based upon the express words spoken by Trooper Ranieri, as revealed by the videotape, the court finds that he requested limited, rather than general consent to search, in asking to take a minute to look in just defendant's "bag and stuff." A typical reasonable person would not have understood by the exchange between the officer and the suspect that an unlimited search of the entire van and all its contents was requested.
The court finds no support, however, for defendant's contention that she objected to the fact that the search was broader than her initial consent, but that the officers ignored her. The videotape fails to support defendant's version of the facts, and it is contradicted by the credible testimony of Troopers Ranieri and Dean. Nonetheless, because defendant's consent was limited, her failure to object to a broader search is not controlling. See Wald, 216 F.3d 1222, 1228 (10th Cir. 2000) (recognizing the general proposition that a defendant's "failure to object when the search exceeds what he later claims was a more limited consent is an indication the search was within the scope of consent," (citation omitted), but finding that rule applicable only when the defendant initially gave a general authorization to search.)
No probable cause
The government contends that any search beyond the scope of consent is immaterial, because the officers had probable cause to search the vehicle. The thrust of the government's argument is that once the trooper saw the screws and poor fitting panels which indicated the presence of a hidden compartment, he had probable cause to search behind those panels.
In two cases, the Tenth Circuit has held that the apparent existence of a hidden compartment likely to contain contraband is sufficient to create probable cause to arrest a defendant. See United States v. Soto, 988 F.2d 1548, 1558 (10th Cir. 1993); United States v. Arango, 912 F.2d 441, 447 (10th Cir. 1990). In numerous other cases, the Tenth Circuit has held that the apparent existence of a hidden compartment in a vehicle, supported by other factors, is sufficient to create probable cause to search that vehicle. United States v. Williams, 7 Fed. Appx. 876, 886, 2001 WL 359490, *8 (10th Cir. Apr. 11, 2001), cert. denied, 534 U.S. 1071 (2001) (discovery of a hidden compartment, combined with the other factors creating a suspicion of criminal activity, furnished probable cause to search the van without regard to the scope of defendants' consent); United States v. Smith, 166 F.3d 1223, 1999 WL 34826, *2 (10th Cir. Jan. 28, 1999) (Table) (lack of driver's license or proof of insurance, evasive answers to police questions, and discovery of the hidden compartment in the vehicle, constitute probable cause to search the entire vehicle for contraband); United States v. Chavez-Ceja, 161 F.3d 18, 1998 WL 654986, *3 (10th Cir. Sept. 21, 1998) (Table) ("given the other suspicious factors present here, once Trooper Jimerson observed evidence of a hidden compartment, he had probable cause to remove the front seat and the carpet and plate covering the hidden compartment, and to search the entire vehicle for drugs."); United States v. Marquez, 114 F.3d 1198, 1997 WL 307149 (10th Cir. Jun. 9, 1997) (Table) (officer smelled marijuana and cologne, discovered a marijuana cigarette, observed an unusually shallow truck bed, and saw drug dog alert; sufficient probable cause to conduct a warrantless search of the entire pickup, including its hidden compartments).
Trooper Ranieri testified that he saw the screws and ill-fitting panels when he was in the back of the van a few minutes after he opened the doors. He gained this knowledge while in a place where he was permitted to be by virtue of defendant's limited consent to search the bags. Because of his training and experience, he immediately knew that the van contained a hidden compartment which was for the purpose of concealing drugs or contraband.
Because defendant permitted the trooper to look in the back of the van, she had "no legitimate expectation of privacy shielding that portion of the interior of" her van which could have been seen from the location where the trooper was permitted to be to search her bags. See Texas v. Brown, 460 U.S. 730, 740 (1983) (citations omitted). The screws and ill-fitting panels on the side of defendant's van "came lawfully within" Trooper Ranieri's plain view. See Arizona v. Hicks, 480 U.S. 321, 327 (1987). The presence of these items, coupled with defendants' extreme nervousness, the suspicious nature of the stated purpose, destination and route of travel, the absence of luggage sufficient for the stated purpose of their trip, coupled with the newness of the vehicle, was sufficient to provide Trooper Ranieri with probable cause to believe that the van contained additional evidence of criminal wrongdoing. His search at the side of the van, and his subsequent removal of the panels enclosing the concealed compartment and the drugs was thus lawful despite the absence of general consent to search the entire van. No basis for suppression has been shown.
Defendant Yaffai and Al-Haj's motions to suppress
The motions to suppress of defendants Yaffai and Al-Haj both raise only one issue: that the officers lacked reasonable suspicion to believe that their vehicles were carrying illegal contraband, and thus should not have initially stopped them. The government properly responds that this is not the standard: all that is required is for the officers to have reasonable suspicion that the defendants were involved in illegal activity.
A stop can be supported as an investigative stop on the basis of an officer's reasonable suspicion that the occupants were involved in criminal activity. See United States v. Sokolow, 490 U.S. 1, 7 (1989) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968). The court is to look at the factors shown at the suppression hearing, "both individually and in the aggregate, and determine whether, under the totality of the circumstances, those factors give rise to a reasonable suspicion of criminal activity." United States v. Salzano, 158 F.3d 1107, 1111 (10th Cir. 1998) (citation omitted). The court "judge[s] the officer's conduct in light of common sense and ordinary human experience." United States v. Mendez, 118 F.3d 1426, 1431 (10th Cir. 1997) (citation omitted). "In determining reasonable suspicion, the court looks not only to those facts known by the officer who took the challenged action, but also to the facts known by all officers involved in that action." Gonzales v. City of Topeka, Kansas, 223 F. Supp.2d 1223, 1229-1230 (D. Kan. 2002).
The court finds that the following facts, within the collective knowledge of the officers, are sufficient to constitute reasonable suspicion that defendant Yaffai was connected in some way with the drugs found in defendant Concepcio-Ledesma's vehicle.
1) Trooper Ranieri saw the pickup traveling in close proximity to defendant Concepcion-Ledesma's van and to a black SUV before he stopped the van and discovered hundreds of pounds of pseudoephedrine in it; 2) Yaffai's pickup was still traveling in close proximity to the black SUV when it was seen by Sergeant Schneider approximately two and one-half hours later; 3) the pay stub found in defendant Concepcion-Ledesma's purse noted Yaffai as her employer; 4) Yaffai called defendant Concepcion-Ledesma on her cell phone after her vehicle was stopped; 5) the red pick-up was registered to Yaffai; and 6) the officers knew that females do not usually travel without an escort vehicle when transporting large quantities of drugs.
The court finds that the following facts are sufficient to constitute reasonable suspicion that defendant Al-Haj was connected in some way with the drugs found in defendant Concepcio-Ledesma's vehicle.
1) Trooper Ranieri saw the three vehicles traveling together before he stopped any of them; 2) Al-Haj's SUV was still traveling with and leading the other vehicle when the two were stopped by officers approximately two and one-half hours later; 3) Al-Haj's SUV had Michigan plates, as did Concepcion-Ledesma's van; 4) the SUV was registered to Al-Haj, whose name had been found in documents in Concepcion-Ledesma's van; and 5) the officers knew that drug couriers often travel in several vehicles, and intentionally have only females in the "load" vehicle (which carries the drugs). No basis for suppression has been shown.
Motion to redact statements or sever trial
Defendant Al-Haj's motion to sever trial or redact statements asserts that co-defendants Beydoun and Pelfrey made statements that warrant a severance under Bruton v. United States, 391 U.S. 123, 136 (1968). In Bruton, the Supreme Court held that a defendant is deprived of his rights under the Confrontation Clause when a co-defendant's confession which incriminates both defendants is introduced at their joint trial, even if the jury is instructed to consider that confession only against the non-testifying co-defendant. See Richardson v. Marsh, 481 U.S. 200, 206 (1987). Bruton problems may be avoided by redaction of the codefendant's statements coupled with the use of limiting instructions. See Richardson v. Marsh, 481 U.S. 200, 211, (1987).
In determining the merits of a motion to sever, the court must weigh the prejudice to a particular defendant caused by the joinder against the important considerations of economy and expedition in judicial interests." United States v. Mabry, 809 F.2d 671, 681 (10th Cir.), cert. denied, 484 U.S. 874 (1987), and overruled on other grounds, Mathews v. United States, 485 U.S. 58 (1988). Severance is a matter of discretion, not of right, and the defendant bears a heavy burden of demonstrating prejudice to his case. United States v. Hollis, 971 F.2d 1441, 1456 (10th Cir. 1992) , cert. denied, 507 U.S. 985 (1993). "Courts generally adhere to the principle that `those indicted together, especially co-conspirators, should be tried together.'" United States v. Peveto, 881 F.2d 844, 857 n. 16 (10th Cir.), cert. denied, 493 U.S. 943 (1989) , quoting 8 J. Moore, W. Taggert J. Wicker, Moore's Federal Practice ¶ 14.05, pp. 14-82 (2 ed. 1989)).
Ms. Beydoun allegedly told troopers that defendant Al-Haj called defendant Yaffai at defendant Conception-Ledesma's house in Detroit, and told Yaffai to meet Al-Haj and follow him (using a total of three vehicles) to California. Ms. Pelfrey allegedly told officers that she was on vacation with Al-Haj and that the three vehicles had been together since leaving Detroit.
No such evidence was presented at the hearing, thus the facts are recited as alleged in the briefs.
The government responds that the two statements above are not inculpatory, as they merely show the connection between the conspirators. Nonetheless, the goverment agrees in an "abundance of caution" to sever the trials. The government suggests severing the trial of defendants Beydoun and Pelfrey from the trial of the remaining defendants, Conception-Ledesma, Yaffai and Al-Haj.
Despite the government's agreement to severance, the court takes this motion under advisement until a date much closer to trial, at which time it will know whether the defendants actually made the statements and whether they will likely appear at trial or plea, which may obviate the need for severance.
Discovery-type motions
The following discovery-type motions are not opposed by the government: defendant Yaffai's motions for disclosure of Jenks Act materials (Dk. 54), for 404(b) evidence (Dk. 55), and for disclosure of expert testimony (Dk. 56).
The court denies defendant Yaffai's motions as moot, and binds the government to the representations regarding such motions set forth in its brief.
IT IS THEREFORE ORDERED that defendant Yaffai's motion for disclosure of Jenks Act materials (Dk. 54) is denied as moot, that defendant Yaffai's motion for 404(b) evidence (Dk. 55) is denied as moot, and that defendant Yaffai's motion for disclosure of expert testimony (Dk. 56) is denied as moot.
IT IS FURTHER ORDERED that defendant Al-Haj's motion to sever trial or redact statements (Dk. 48), is taken under advisement, and that all motions to suppress (Dk. 49, 53, 58) are denied.