United States District Court, D. South Carolina, Columbia Division
ORDER AND OPINION
matter is before the court on Defendant Vance Edward Volius,
Jr.'s Motion to Sever (ECF No. 214), filed on January 19,
2018. For the following reasons, the court
DENIES Defendant's Motion.
20, 2017, Defendant was indicted by a Grand Jury for (1)
conspiracy to violate federal law; (2) the transport and
receipt of explosives with intent to kill; (3) the mailing of
a nonmailable item with intent to kill; and (4) carrying
explosives during the commission of another crime. (ECF No.
23.) In this Motion, Defendant requests to be severed from
his co-Defendant, Michael Young. (ECF No. 214.) The
Government filed an Omnibus Response opposing Defendant's
Motion on February 3, 2018 (ECF No. 234), and Defendant filed
a reply on February 6, 2018 (ECF No. 238).
Rule of Criminal Procedure 8(b) allows defendants to be
charged in the same indictment where “they are alleged
to have participated in the same act or transaction, or in
the same series of acts or transactions, constituting an
offense or offenses.” Fed. R. Crim. P. 8(b). Generally,
defendants who are indicted together should be tried together
because it aids in judicial efficiency and “serve[s]
the interests of justice by avoiding the . . . inequity of
inconsistent verdicts.” United States v.
Dinkins, 691 F.3d 358, 368 (4th Cir. 2012) (internal
citations and quotation marks omitted).
relief from joinder is proper under Rule 14(a). “If the
joinder of offenses or defendants in an indictment . . . for
trial appears to prejudice a defendant . . . the court may
order separate trials of counts, sever the defendant's
trials, or provide any other relief that justice
requires.” Fed. R. Crim. P. 14(a). A defendant seeking
a severance has a high burden and must “establish that
actual prejudice would result from a joint trial . . . not
merely that a separate trial would offer a better chance of
acquittal.” United States v. Reavis, 48 F.3d
763, 767 (4th Cir.1995) (internal citations and quotation
marks omitted). Additionally, “[a] defendant is not
entitled to severance merely . . . because the evidence
against one defendant is not as strong as that against the
other.” United States v. Strickland, 245 F.3d
368, 384 (4th Cir. 2001).
argues that this case should be severed under Rule 14. (ECF
No. 214.) Defendant cites four reasons that a joint trial
with co-Defendant Young would prejudice him. (Id.)
First, Defendant asserts the government intends to
“offer evidence that Young has been convicted of
killing the alleged victim's father and previously
convicted of attempting to kill the same alleged victim in
the current indictment.” (Id.) Defendant is
concerned that the Government will offer the evidence of this
prior wrongdoing against him and co-Defendant Young.
(Id.) Secondly, Defendant states that the Government
appears through its production of discovery that co-Defendant
Young, a prisoner in the South Carolina correctional
facility, was using the dark web to engage in the purpose of
buying weapons and bombs, and such evidence would have a
prejudicial effect on Defendant. (Id.) Thirdly,
Defendant posits that co-Defendant Young has given statements
to his attorney and an investigator that was provided to the
Government as reciprocal discovery and possibly other
statements to police officers that implicate or refer to
Defendant. (Id.) Lastly, Defendant espouses that a
joint trial will hamper his right to remain silent and his
right to confront witnesses against him. (Id.)
fails to meet the burden of establishing actual prejudice
required to justify a severance under Rule 14. United
States v. Collins, 372 F.3d 629, 634 n.2 (4th Cir. 2004)
(finding severance of co-conspirator was properly denied when
the defendant “utterly failed to establish that actual
prejudice would result from a joint trial”); United
States v. Najjar, 300 F.3d 466, 473 (4th Cir. 2002)
(defendant's conclusory speculation that there might be
reasons that would justify severance was inadequate);
United States v. Becker, 585 F.2d 703, 707 (4th Cir.
1978) (“Speculative allegations as to possible
prejudice do not meet the burden.”). Without strong
evidence of a “miscarriage of justice, ”
co-defendants should be tried in the same trial.
Richardson v. Marsh, 481 U.S. 200, 206-11 (1987);
United States v. Samuels, 970 F.2d 1312, 1314 (4th
Cir. 1992). This “presumption [of a joint trial] is
especially strong in conspiracy cases.” United
States v. Harris, 498 F.3d 278, 291 (4th Cir. 2007);
United States v. Dinkins, 691 F.3d 358, 368 (4th
Cir. 2012) (quoting United States v. Tedder, 801
F.2d 1437, 1450 (4th Cir. 1986)) (“Joinder is highly
favored in conspiracy cases, over and above the general
disposition supporting joinder for reasons of efficiency and
judicial economy.”). Thus, while Rule 14(a) permits the
court to consider severance due to prejudice to the
defendant, “a district court should grant a severance
under Rule 14 only if there is a serious risk that a joint
trial would . . . prevent the jury from making a reliable
judgment about guilt or innocence.” Zafiro v.
United States, 506 U.S. 534 (1993); accord
Harris, 498 F.3d at 291-92.
particular, no right to severance exists because the evidence
against one defendant is stronger or more inflammatory than
the evidence against the other defendant. See, e.g.
United States v. Lighty, 616 F.3d 321, 350-51;
United States v. Johnson, 219 F.3d 349, 357 (4th
Cir. 2000); United States v. Akinkoye, 185 F.3d 192,
197 (4th Cir. 1999). Defendant's generalized claim that
“Young has been convicted of killing the alleged
victim's father and previously convicted of attempting to
kill the same alleged victim in the current indictment”
fails to show undue prejudice to him and does not justify
severance. See United States v. Hall, 93 F.3d 126,
125 (4th Cir. 1996) (rejecting defendant's argument
“that evidence brought against his co-defendant . . .
on [a related] murder charge” required severance).
Further, the same evidence of co-defendant Young's prior
attempted murder would be admissible against Defendant in a
separate trial as it would be in a joint trial. See
United States v. Najjar, 300 F.3d 466, 473 (4th Cir.
2002) (noting that speculation that there “would be
evidence admitted against his co-defendants that would be
inadmissible against him” was too speculative to
addition, even if there were inconsistencies in Defendant and
co-Defendant Young's defenses, general
“hostility” or “finger-pointing”
between defendants is insufficient to require severance.
Lighty, 616 F.3d 321, 348 (4th Cir. 2010); see
also United States v. Spitler, 800 F.2d 1267, 1271 (4th
Cir. 1986) (“The mere presence of hostility among
defendants . . . or a desire of one to exculpate himself by
inculpating another [are] insufficient grounds to require
separate trials.”). In so far as Defendant suggests
that severance is required because Defendant desires for
co-Defendant Young to offer exculpatory testimony for
Defendant, such a claim also fails. The United Stated Court
of Appeals for the Fourth Circuit has explained that an
attempt to sever a trial based on the asserted need for a
co-defendant's testimony is unlikely to succeed.
United States v. Reavis, 48 F.3d 763, 767 (4th Cir.
1995). When the motion to sever is based on prospective
co-defendant testimony, the defendant must affirmatively
establish: (1) a bona fide need for the co-defendant's
testimony; (2) the likelihood the co-defendant would waive
his Fifth Amendment privilege and testify; (3) the substance
of the co-defendant's testimony; and (4) the exculpatory
nature and effect of the testimony. Id. Defendant
fails to provide the court with any evidence that would
suggest that the four required factors have been met to
overcome the strong presumption for a joint trial of
on the aforementioned reasons, the court
DENIES Defendant's Motion to Sever (ECF