MEMORANDUM OPINION AND ORDER
JOSEPH M. HOOD, Senior District Judge.
This matter is before the Court on Defendant Seth Johnston's Motion to Produce alleged Co-Conspirator Hearsay Statements and conduct an Enright, pretrial evidentiary hearing [DE 197], which is ripe for review following the government's Response [DE 208] and Johnston's Reply [DE 210].
Also pending before the Court is Johnston's Motion pursuant to Fed. R. Crim. P. 14(a) to sever Count 6, charging that Johnston knowingly attempted to corruptly persuade a potential witness a violation of 18 U.S.C. § 1512(b)(3), from the remaining charges at trial [DE 198]. The government has responded [DE 207], and Johnston timely filed a reply [DE 209]. This matter is also ripe.
I. Factual Background
Zafar Nasir, Asim Malik, and Nawaz Khan, allegedly acquired and distributed controlled substance analogues, specifically, two brands of synthetic marijuana, containing JWH-122, a controlled substance analogue of the Schedule I controlled substance JWH-018, from Hosam Saad Al-Baderi, Victor Manuel Collindres Hernandez, and Soha Aljeanabi, who allegedly manufactured and distributed the product from Las Vegas, Nevada. Once the synthetic marijuana was in Lexington, Nasir, Malik, and Khan allegedly distributed the product in their gas stations, convenience stores, and "smoke shops." The government alleges that, in early 2012, Johnston financed the acquisition of the two types of synthetic marijuana.
After Malik had been arraigned on the charges contained in the indictment, Johnston and Malik engaged in a conversation, the substance of which formed the basis, at least in part, for Count 6 in the indictment. A recording of this conversation was obtained by law enforcement.
During the recording, Johnston asked Malik, "What did you tell them about the $100, 000 that went to JABN?" Malik responded, "I told them that we did it for the incense." [DE 170 at 549.] Johnston then stated, "If you tell them the same thing, then they are going to indict me." [DE 170 at 549.] According to the Government's brief, Malik, during the recording, made a comment that he wanted to tell his lawyer what their intention was. Johnston stated, "How are they going to find out what our intention was?" [Government's Brief, DE 207 at 4.] Johnston continued, "If everybody's story is the same... I am not asking you take the fall for me here." [DE 170 at 549.] Malik said he told his attorney truthfully what the relationship was. Johnston said he had to stand trial on that, and "If they charge me, I have to say that I didn't know." [DE 170 at 549-50.] Later, Johnston stated, "They are going to ask if I had any connection with the incense. What are you going to do then?" Malik said he would tell them that Johnston provided the money. [DE 170 at 550.] Johnston then said, "They know I invested in your gas stations and tided you guys over in some of those things." Khan suggested that "we all just tell the truth and fight it together, " to which Johnston responded, "that just puts us all in a worse position." [DE 170 at 550.]
As reflected on the recording, a short time later, Johnston stated, "If they ask you if I had anything to do with it, just say nothing. They are going to ask you about incense, they are going to call it synthetic marijuana." [DE 170 at 550.] Johnston continued, "The only way they can get me is with you guys." [DE 170 at 550-51.] Johnston later said, "So what, I moved $100, 000 into an account." [DE 170 at 551.] The government alleges that this statement was made in the context of what he would say when asked about the $100, 000 investment for the "incense." [Government's Brief, DE 207 at 4-5] Johnston continued, "If you guys say what you said in here, they will... that's what they are waiting for. Somebody to say that I knew, that I had knowledge that the money was going for a certain purpose, and the intent that it go for that purpose." [DE 170 at 551.] Johnston concluded that "They don't know anything yet, " about the $100, 000 for the synthetic marijuana.
In addressing how to answer questions about the $100, 000 for the synthetic marijuana, Johnston stated, "The only thing I am asking you is my knowledge. If I didn't know what it was for, if I was just doing it as a loan and I trusted you guys, it would put me in a much better position." He continued, "It doesn't hurt you guys." [DE 170 at 551.] Later, Johnston stated, "The only way they can put me with knowledge is if you guys say I had knowledge and intent." [DE 170 at 551.] "If you guys don't testify... there is no way for the jury to infer intent or knowledge that it is an illegal product without somebody saying we intended to go buy incense." [DE 170 at 551-52.]
Johnston further stated in referring to himself, "Look, if I had my way 100 percent, you guys would go say that he didn't know what it was for, that he was just funding a gas station." [DE 170 at 552.] Johnston reiterated to "just say nothing." [DE 170 at 552.] Johnston also asked "do you want me to do something for the $100, 000?" According to the Government, given the context of this conversation, this statement to mean that Johnston would create a false document regarding the $100, 000. Toward the end of the conversation, Johnston stated, "They can put you on the witness stand and say that Seth knew what this money was for." [DE 170 at 551.] "The only way they get the knowledge and intent is by what you tell them." [Government's Brief, DE 207 at 5-6] "Will you trade your life for mine?" [DE 170 at 552.] In response, Malik stated, "Look, I'd rather answer truthfully what I know, but since you are saying that, I won't answer that question." [DE 170 at 551.]
Additionally, there are a series of text messages between Malik and Johnston that were obtained. One conversation on January 6, 2012 at 10:39 is reported as follows:
Johnston: Why is Sammy asking me about spice.
Malik: He does not know anything about your involvement. Probably just ...