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United States v. Lester

United States District Court, S.D. West Virginia

June 19, 2018

UNITED STATES OF AMERICA
v.
WINDEL LESTER JAMES EDWARD LESTER GEORGETTA KENNEY GREG A. LESTER JAMES KEITH BROWNING CRIMINAL

          MEMORANDUM OPINION AND ORDER

          David A. Faber Senior United States District Judge.

         Before 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.

         I. FACTUAL BACKGROUND

         Without 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.

         Counts 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.

         The 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.

         As to 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. 43-44.

         While 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. Id.

         II. DEFENDANTS' MOTIONS TO SEVER

         Before 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.

         A. Applicable Law

         “[J]oinder 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 omitted).

         Severance 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.”

         The 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)).

         In 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.

         B. ...


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