June 11, 2013
UNITED STATES OF AMERICA, Plaintiff,
JOSHUA EWING, Defendant.
MEMORANDUM OPINION AND ORDER
JOHN G. HEYBURN, II, District Judge.
Defendant, Joshua Ewing, has moved for a separate trial in two separate motions based upon his improper joinder with other Defendants. Ewing first argues that some of the crimes charged against the other Defendants are completely unrelated to him. ECF No. 38. Second, he argues that a statement by co-Defendant Wojciechowski is inadmissible as to Ewing and cannot be fairly redacted or abridged. ECF No. 48.
As to the first motion, the Second Superceding Indictment names Ewing in three of its nine counts: Counts I and VII for bank robbery and Count IX for brandishing a firearm in connection with a robbery. Count I, in fact, alleges a conspiracy among all the Defendants to rob the same bank on two separate occasions. Such an allegation provides a strong basis for trying those Defendants together. Having the other counts pertaining to the other Defendants does not inherently prejudice Ewing. Accordingly, the Court will deny the motion.
Nevertheless, Ewing makes a strong argument in his second motion to sever that Wojciechowski's statement cannot be used against him and is not subject to fair redaction. The Government argues to the contrary. As yet, the Court has not reviewed the statement. However, for the time being, the Court will assume that either redaction or suppression of the statement will suffice to protect Ewing. The Government, of course, bears the risk of suppression given its advocacy as to the severance motion.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendant's motions to sever, ECF No. 38 and ECF No. 48, are DENIED.
IT IS FURTHER ORDERED that Defendant's motion to suppress Wojciechowski's statement, ECF No. 48, is DENIED WITHOUT PREJUDICE for a later consideration.
IT IS FURTHER ORDERED that the Government will provide the appropriate 404(b) disclosures at a reasonable time. Defendant's motion for notice as to 404(B) evidence, ECF NO. 36, is DENIED.