OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SEVER COUNT FOUR OF THE INDICTMENT AND ORDERING BIFURCATED TRIAL
CHRISTINA REISS, Chief District Judge.
This matter came before the court on Defendant Frank Caraballo's Motion to Sever Count Four of the Second Superseding Indictment. (Doc. 36.) The government opposes the motion. The court heard argument on Defendant's motion on August 20, 2013.
The government is represented by Assistant United States Attorney Joseph R. Perella and Assistant United States Attorney Paul J. Van de Graaf. Defendant is represented by Mark A. Kaplan, Esq. and Natasha Sen, Esq.
I. Procedural Background.
Pursuant to the Second Superseding Indictment of July 31, 2013, Defendant has been indicted on four counts: Count One: conspiring to distribute mixtures or substances containing detectable amounts of cocaine, cocaine base, and heroin, as part of a conspiracy involving 280 grams or more of a mixture or substance containing a detectable amount of cocaine base, in violation of 21 U.S.C. §§ 841(a), (b)(1)(A), 846; Count Two: possession and use of a firearm in furtherance of a drug trafficking crime with an allegation that Defendant discharged the firearm and caused the death of Melissa Barratt by murder, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), (j)(1); Count Three: possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); and Count Four: possession of a firearm by a felon, with an allegation that Defendant has been convicted of four prior drug trafficking felonies, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), (e)(1).
II. Conclusions of Law and Analysis.
Fed. R. Crim. P. 8(a) allows for the joinder of offenses when those offenses "are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan." Fed. R. Crim. P. 14(a), however, provides relief from joinder: "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, ... or provide any other relief that justice requires."
Rule 14(a) "leaves the tailoring of the relief to be granted, if any, to the district court's sound discretion." Zafiro v. United States, 506 U.S. 534, 538-39 (1993). Rules 8 and 14 "are designed to promote economy and efficiency and to avoid a multiplicity of trials, so long as these objectives can be achieved without substantial prejudice to the right of the defendants to a fair trial." Id. at 540 (internal quotation marks and alterations omitted). As such, "less drastic measures [than severance], such as limiting instructions, often will suffice to cure any risk of [prejudicial joinder.]" Id. at 539. To prevail on a Rule 14 motion, it is not enough for a defendant to show that he or she "may have a better chance of acquittal in separate trials." Id. at 540. Instead, "a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Id. at 539.
Pursuant to Rule 14(a), Defendant moves to sever Count Four, contending that trying all four counts "together would inform the Jury of [Defendant's] past criminal record... which [is] highly prejudicial" and that "there is a significant probability that the Jury's knowledge that [Defendant] had committed serious crimes in the past would adversely affect their judgment in considering his guilt or innocence on the remaining counts." (Doc. 36 at 3.) With regard to Count Two, Defendant argues "that once the Jury is informed that [Defendant] is an individual who not only possessed firearms, but illegally possessed them, the Jury's ability to fairly consider his guilt or innocence on [Count Two] of the Indictment would be adversely affected." Id. at 3-4.
The government opposes the motion to sever, arguing that United States v. Page, 657 F.3d 126 (2d Cir. 2011), has "changed the landscape" and imposed a "heavy burden" on a defendant seeking severance. While the government is correct in its characterization of Page,  it does not address a significant factual difference between Page and the present case. In Page, the defendant agreed to a sanitized stipulation with regard to the defendant's prior felony. See id. at 128 ("The defendant has agreed to stipulate that he has a prior felony conviction. The jury will be made aware that he has stipulated to having been convicted of a prior felony, but no description of the facts underlying his prior conviction will be provided and no other mention will be made of his criminal record during the trial unless he chooses to testify."). In this case, Defendant has not agreed to a stipulation of any kind. It is thus unclear how the evidence of his prior drug-related felonies would be presented to the jury. Accordingly, the court must analyze the Page factors without the predicate of a mutually-agreeable sanitized stipulation regarding Defendant's prior felonies.
In Page, the Second Circuit rejected the "contention that a felon-in-possession charge must always be severed from other charges, " so long as "there is a logical connection between the felon-in-possession count and the other charges, there is a similarity in the evidence necessary to prove the different charges, the trial court takes steps to limit the danger of prejudice and gives a proper limiting instruction, and the defendant is not substantially or unfairly prejudiced." Page, 657 F.3d at 132. Page thus directs the trial courts to consider whether there is a "sufficient logical connection" between the counts; whether "separate trials... would have required much of the same evidence;" and whether there are "adequate precautions to limit the danger of unfair prejudice." Id. at 130 (internal citations and quotation marks omitted). However, Page did not purport to alter or limit the mandate of Rule 14(a) or the Supreme Court's acknowledgment that "the tailoring of the relief to be granted [from prejudicial joinder is left] to the district court's sound discretion." Zafiro, 506 U.S. at 538-39; see Page, 657 F.3d at 129. In fact, the Second Circuit in Page unequivocally stated:
Nothing in this opinion should be taken to be a denunciation of the practice of bifurcating a felon-in-possession charge from other charges in a single multi-charge trial [when] doing so would better protect the defendant from prejudice than a limiting instruction, and the district court determines that a limiting instruction cannot adequately protect the defendant from substantial prejudice and bifurcating the trial of that charge would provide such protection.
Page, 657 F.3d at 132; see also United States v. Lee, 549 F.3d 84, 88, 94-95 (2d Cir. 2008) (affirming denial of motion to sever, but sanctioning bifurcation of two counts, which included a count of felon-in-possession of a firearm, into two trial phases).
Based on the government's representation of the evidence to be offered at Defendant's trial, there appears to be a logical connection between the charge of felon-inpossession of a firearm and the charges of conspiracy to distribute, possession of a firearm in furtherance of that conspiracy, and use of a firearm in furtherance of a drug trafficking crime resulting in the death of Melissa Barratt. The government alleges that firearms were used as Defendant's tools of trade, as well as currency in exchange for drugs. When a firearm is an important tool in the trafficking of narcotics, the Second Circuit has concluded there is a logical connection between a narcotics count and a felon-in-possession count. See Page, 657 F.3d at 130 (concluding logical connection when firearm and heroin were found in same location) (citing United States v. Muniz, 60 F.3d 65, 71 (2d Cir. 1995), conviction vacated on other grounds by, 184 F.3d 114 (2d Cir. 1995) ("[T]here are innumerable precedents of this court approving the admission of guns in narcotics cases as tools of the trade."); United ...