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United States v. Nida

United States District Court, S.D. West Virginia, Charleston Division

January 30, 2019

UNITED STATES OF AMERICA
v.
JOSHUA STEPHEN NIDA JORDAN BETH NIDA

          MEMORANDUM OPINION AND ORDER

          JOSEPR R. GOODWIN /UNITED STATES DISTRICT JUDGE

         I. Introduction

         Pending before the court is the defendants' Joint Motion to Sever Trial [ECF No. 38]. For the following reasons, the Motion is DENIED.

         II. Background

         Defendants Jordan Beth Nida (“Ms. Nida”) and Joshua Stephen Nida (“Mr. Nida”) are charged in a three-count Indictment [ECF No. 1]. Count One alleges that both defendants possessed a stolen firearm in violation of 18 U.S.C. §§ 922(j) and 924(a)(2). Count Two alleges that Mr. Nida possessed a firearm after having been convicted of a felony offense, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Count Three alleges that Ms. Nida possessed a firearm after having been convicted of a felony offense, in violation of the same statutory provisions. The defendants in this matter were married at the time of the offense but are now divorced.

         On January 22, 2019, the defendants filed a Joint Motion to Sever Trial [ECF No. 38], contending that the trial in this matter should be severed because of concerns relating to (1) the marital communications privilege; (2) the defendants' antagonistic defenses; and (3) Bruton v. United States, 391 U.S. 123 (1968). The court held a motions hearing on January 28, 2019.

         III. Legal Standard

         Under Federal Rule of Criminal Procedure 14, the court may grant a severance if it appears that a defendant is “prejudiced” by a joinder of offenses or of defendants. Fed. R. Crim. P. 14(a). However, the Fourth Circuit has made clear that, “[b]arring special circumstances, individuals indicted together should be tried together.” United States v. Brugman, 655 F.2d 540, 542 (4th Cir. 1981). There is a presumptive expectation that co-defendants will be tried together unless the joinder “deprives the defendants of a fair trial and results in a miscarriage of justice.” United States v. Becker, 585 F.2d 703, 706 (4th Cir. 1978). The party moving for severance must demonstrate that actual prejudice would result from the joinder; a mere showing that a separate trial would offer a better chance of acquittal is insufficient. United States v. Reavis, 48 F.3d 763, 767 (4th Cir. 1995).

         IV. Discussion

         The defendants' Motion to Sever is based primarily on concerns relating to the marital communications privilege. To this end, the Motion states: “[S]hould either party wish to exercise their constitutional right to testify in their own defense, and such testimony involves a communication made during the course of their marriage, the other party could invoke the martial communications privilege, thus creating an irresolvable impasse between the rights of the parties.” Defs.' Mot. Sever 2.

         The marital communications privilege protects “information disclosed between husband and wife in the confidence of the marital relationship.” United States v. Hall, 989 F.2d 711, 716 n.8 (4th Cir. 1993). This privilege is held by either spouse. Id. But, the Fourth Circuit has held that “where marital communications have to do with the commission of a crime in which both spouses are participants, the conversation does not fall within the marital privilege.” United States v. Broome, 732 F.2d 363, 365 (4th Cir. 1984).

         The court finds the defendants' arguments regarding the potential assertion of the marital communications privilege fail to meet the heavy burden of showing that a joint trial would be prejudicial. The Fourth Circuit has held that “speculative allegations” are insufficient to require severance. United States v. Najjar, 300 F.3d 466, 473 (4th Cir. 2002). Here, neither defendant has stated whether he or she will testify. Thus, the defendants' theory “is based on a hypothetical situation in which one of the defendants in this matter testifies at trial.” United States v. Manfredi, 628 F.Supp.2d 608, 645 (W.D. Pa. 2009) (denying the defendants' motion for severance under the marital communications privilege); see United States v. Yim, No. CR11-131MJP, 2012 WL 162350, at *4 (W.D. Wash. Jan. 19, 2012) (reserving ruling on motions to sever where the defendant did not state “definitively” that she would testify, “as the marital privilege issue remain[ed] only a hypothetical problem”). Moreover, even if one of the defendants was to testify at trial, the contents of such testimony have not been disclosed.[1] As such, “the court can only speculate as to the application” of the marital communications privilege or an exception thereto. United States v. Coffman, No. 09-CR-181-KKC, 2010 WL 4102266, at *2 (E.D. Ky. Oct. 5, 2010) (denying as premature the defendant's motion to sever, which was based on the defendant's right to assert the marital communications privilege); see United States v. Paulin, No. 2:11-cr-0381-JCM-GWF, 2015 WL 139388, at *4 (D. Nev. Jan. 12, 2015) (denying the defendant's motion to sever where the defendant did not provide the court “with the specific marital communications” to be introduced at trial). Ultimately, the defendants' argument is premised on a series of hypotheticals: The “irresolvable impasse” between the rights of the parties could only result if one of the defendants testifies at trial and if such testimony involves a marital communication covered by the marital communications privilege. Therefore, under this theory, the defendants have failed to meet their burden of showing that they will be unfairly prejudiced by a joint trial.

         The defendants also state that the trial in this case should be severed because of the parties' antagonistic defenses and concerns related to Bruton v. United States, 391 U.S. 123 (1968).[2] At the motions hearing, counsel for Ms. Nida stated as follows:

[T]here's also a host of sort of Bruton issues that I think Mr. Nida recently made a statement and it might be hard to redact that in a way that it is sensible to a jury with respect to Ms. Nida. If all the references to Ms. Nida ...

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