United States District Court, S.D. West Virginia
MEMORANDUM OPINION AND ORDER
A. Faber Senior United States District Judge.
the court are a number of pretrial motions. At the
parties' first pretrial motions hearing on April 18,
2018, the court heard arguments as to defendants' motions
to sever and motions for production of documents pursuant to
Federal Rule of Criminal Procedure 17(c). The court reviews
these motions and the government's motion for a Rule
17(c) subpoena. ECF No. 229.
rehashing the 53-page Second Superseding Indictment
(“Indictment”), the government represents the
facts as follows: Windel Lester, James Lester, Georgetta
Kenney, Greg Lester, James Keith Browning, Dudley Bledsoe,
Ricky Gleason, and others purchased homes located in Matoaka,
Huntington, and Ikes Fork, West Virginia. They applied for
and received insurance coverage for these homes (Liberty
Mutual Insurance for the Matoaka and Huntington properties,
Homesite Insurance Company for the Ikes Fork property). After
obtaining coverage, they set fire to the homes, filed false
insurance claims, and received insurance proceeds. ECF No.
142 at pp. 3-5.
1-3 charge all defendants in general wire fraud, arson, and
money laundering conspiracies. Id. at pp. 5-8.
Counts 4-19 relate to the Matoaka property fire and include
charges against Windel Lester, James Lester, and Georgetta
Kenney. Id. at pp. 11-20. Counts 20-33 relate to the
Huntington property fire and include charges against Windel
Lester, James Lester, Georgetta Kenney, and Greg Lester.
Id. at pp. 21-39. Significant to this Memorandum
Opinion and Order, Count 25 charges James Lester with evading
currency transaction reports through his cash deposits of $9,
500, $9, 000, and $9, 200 between May 8 and May 14, 2013.
Id. at p.27. Lester allegedly used these deposits to
obtain a $27, 500 cashier's check, which Ricky Gleason
used as partial payment towards the purchase of the
Huntington property. See id. at pp. 21-23, 27.
Counts 34-40 relate to the Ikes Fork property fire and
include charges against James Lester and James Browning.
Id. at pp. 40-44.
government makes the following allegations regarding the
participation of unindicted co-conspirator, Dudley Bledsoe.
As to the Matoaka conspiracy, at the solicitation of James
Lester and with the financial assistance of Windel Lester,
Georgetta Kenney, and James Lester, Bledsoe purchased, filed
the deed in his name, and obtained insurance coverage for the
Matoaka property. Id. at pp. 11-12. With James
Lester's assistance, Bledsoe obtained unscented candle
oil and set fire to the Matoaka property. Id. at
p.13. After the fire, Bledsoe reported the fire to Liberty
Mutual and participated in submitting fraudulent insurance
claims. Id. at pp. 12-16. Upon receipt of the
insurance proceeds, Bledsoe withdrew at least some of the
proceeds from his Pioneer Bank account at the direction of
Windel Lester, James Lester, and Georgetta Kenney.
Id. at p.20. Bledsoe, Windel Lester, James Lester,
and Georgetta Kenney divided these insurance proceeds.
Id. at p.14.
the Ikes Fork conspiracy, Bledsoe allegedly met with James
Browning and James Lester and agreed to purchase and set fire
to the property to collect insurance proceeds. Bledsoe
contributed $5, 000, half of the purchase price for the Ikes
Fork property. Id. at p.41. With the assistance of
James Lester and Browning, Bledsoe obtained the necessary
materials and prepared the Ikes Fork property to be burned
(he is not alleged to have actually set the fire).
Id. at pp. 41-42. Bledsoe received approximately
$30, 000 of the insurance proceeds. Id. at pp.
named as an unindicted co-conspirator in this case, on March
14, 2018, Dudley Bledsoe came before this court and pled
guilty to an Information which charged him with one count of
engaging in unlawful monetary transactions in violation of 18
U.S.C. §§ 1957 and 2. See United States v.
Bledsoe, 1:18-cr-00035, ECF No. 11. This charge related
to the receipt of insurance proceeds resulting from the
Matoaka property fire. At the hearing, the court found
Bledsoe competent and accepted his plea of guilty.
DEFENDANTS' MOTIONS TO SEVER
the court are four (4) motions to sever: (1) Georgetta
Kenney's Motion to Sever (ECF No. 196), (2) Greg
Lester's Motion to Sever, (ECF No. 197), (3) Windel
Lester's Motion to Sever Defendants James Lester and Greg
Lester, (ECF No. 203), and (4) Windel Lester's Motion to
Preclude Evidence of/ Sever Claims Against James Keith
Browning, (ECF No. 204). For the reasons that follow, each
motion is DENIED.
is the rule rather than the exception.” United
States v. Hawkins, 776 F.3d 200, 206 (4th Cir. 2015)
(internal quotation marks omitted). Rule 8(b) of the Federal
Rules of Criminal Procedure provides that the government may
charge multiple defendants together “if 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.” “Absent special
circumstances, defendants indicted together should be tried
together, and this presumption is especially strong in
conspiracy cases.” United States v. Harris,
498 F.3d 278, 290 (4th Cir. 2007) (internal quotations
is governed by Rule 14 of the Federal Rules of Criminal
Procedure and states in part: “If the joinder of
offenses or defendants in an indictment . . . 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.”
prejudice necessary to require severance is not whether the
evidence is greater against one defendant or whether a
defendant may have a better chance of acquittal in a separate
trial. See Zafiro v. United States, 506 U.S. 534,
540 (1993). Instead, severance is required only upon a
showing that a jury is unable to make a reliable decision
concerning guilt, or upon a showing that there is
“a serious risk that a joint trial will compromise a
specific trial right of one of the defendants.”
United States v. Min, 704 F.3d 314, 319 (4th Cir.
2013) (quoting Zafiro v. United States, 506 U.S.
534, 538 (1993)).
Bruton v. United States, the Supreme Court
annunciated that a defendant's Sixth Amendment right to
confrontation may be compromised when the government seeks to
introduce an out-of-court confession of one co-defendant (who
may not refuse to testify) which 1) incriminates another
co-defendant and 2) the confession is inadmissible against
that co-defendant. See 391 U.S. 123, 135-37 (1968).
In this situation, the Court explained:
[T]here are some contexts in which the risk that the jury
will not, or cannot, follow instructions is so great, and the
consequences of failure so vital to the defendant, that the
practical and human limitations of the jury system cannot be
ignored. . . . Such a context is presented here, where the
powerfully incriminating extrajudicial statements of a
codefendant, who stands accused side-by-side with the
defendant, are deliberately spread before the jury in a joint
trial. . . . It was against such threats to a fair trial that
the Confrontation Clause was directed.
Id. at 135-36. Accordingly, the Bruton
Court determined that the co-defendant's confession
resulted in a “powerfully incriminating extrajudicial
statemen[t], ” and that its introduction violated
Bruton's Sixth Amendment Rights. Id. at 135.