throbber
Case 2:13-cr-00014-RMP Document 381 Filed 09/03/14
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`UNITED STATES OF AMERICA,
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF WASHINGTON
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` NO: 13-CR-14-RMP
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` Plaintiff,
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` v.
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`LOUIS DANIEL SMITH, also known
`as Daniel Smith, also known as Daniel
`Votino; KARIS DELONG, also known
`as Karis Copper; TAMMY OLSON;
`and CHRIS OLSON,
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` Defendants.
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`BEFORE THE COURT are Motions to Sever Trial from Defendant Smith
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`filed by Codefendants Tammy Olson and Karis Delong, respectively. ECF Nos.
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`317, 318. Also before the Court is a motion to accept a late-filed declaration in
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`support of the motions to sever, filed by Defendant Louis Daniel Smith, ECF No.
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`361, and a motion to expedite the same, ECF No. 362, which was granted in the
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`Court’s Order Memorializing Court’s Oral Rulings at ECF No. 367.
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`ORDER DENYING MOTIONS TO SEVER TRIAL ~ 1
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`ORDER DENYING MOTIONS TO
`SEVER TRIAL
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`Case 2:13-cr-00014-RMP Document 381 Filed 09/03/14
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`BACKGROUND
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`Codefendants Tammy Olson and Karis Delong were indicted, along with
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`Defendant Smith, on one count of conspiracy to commit an offense against the
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`United States or to defraud the United States in violation of 18 U.S.C. § 371; four
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`counts of delivering misbranded drugs into interstate commerce in violation of 21
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`U.S.C. §§ 331(a) and 333(a)(2); and one count of smuggling in violation of 18
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`U.S.C. § 545. ECF No. 1. The Indictment alleges that the Defendants engaged in
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`a scheme to import, manufacture, and sell hazardous material that was marketed as
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`a health product. Id. Specifically, the Indictment alleges that Defendants,
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`operating through a company called “PGL International,” misbranded sodium
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`chlorite, a harmful chemical, as Miracle Mineral Solution (“MMS”) and marketed
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`it to the public for consumption to cure such ailments as malaria, HIV/AIDS,
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`hepatitis, and various forms of cancer. Id. at 4, 7.
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`With regard to count one of the Indictment, Defendants are accused of
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`conspiring “to obtain the chemicals needed to manufacture the drug MMS without
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`revealing to regulators and suppliers the true purpose of the chemicals; to use those
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`chemicals to manufacture the drug MMS in a facility that was hidden from
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`regulators; to offer MMS for sale on websites they had established; and to enrich
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`themselves by obtaining money from the interstate sales of the misbranded drug
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`MMS.” Id. at 7. The Indictment contains numerous specific allegations as to
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`ORDER DENYING MOTIONS TO SEVER TRIAL ~ 2
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`Case 2:13-cr-00014-RMP Document 381 Filed 09/03/14
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`Codefendants Karis Delong and Tammy Olson’s alleged involvement in the
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`conspiracy, along with Defendant Smith and Codefendant Chris Olson.1
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`Codefendants Tammy Olson and Karis Delong filed motions to sever their
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`trial from the trial of Defendant Smith, contending that they require access to
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`exculpatory testimony that Defendant Smith only can provide at their separate trial.
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`ECF Nos. 317, 318. At the Codefendants’ request, the Court allowed for
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`supplemental briefing on the Codefendants’ motions to sever. ECF No. 337.
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`Codefendants Tammy Olson and Karis Delong filed their supplemental
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`memoranda ex parte. ECF Nos. 354, 355.2 Codefendants explained that they were
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`filing their memorandum ex parte due to their reliance on certain materials to
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`which Defendant Smith has claimed attorney-client privilege and which have not
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`been disclosed to the Government.
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`On July 14, 2014, after the deadline set forth in the Court’s Pretrial Order,
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`Defendant Smith filed a declaration in support of Codefendants Tammy Olson’s
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`and Karis Delong’s motions to sever. ECF No. 357. The Government filed its
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`supplemental response within the time frame set forth in the Court’s Pretrial Order
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`and argued in part that Defendant Smith’s supporting declaration was not timely
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`1 Codefendant Chris Olson has since pleaded guilty to one count of Shipment of
`Misbranded Drugs in violation of 21 U.S.C. §§ 331(a) and 333(a)(1).
`2 Codefendant Delong filed her supplemental memorandum as a separate motion,
`but the Court reviews it as a supplement to her original motion.
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`ORDER DENYING MOTIONS TO SEVER TRIAL ~ 3
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`Case 2:13-cr-00014-RMP Document 381 Filed 09/03/14
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`filed. ECF No. 359. The Court determined at oral argument that it would accept
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`Defendant Smith’s late-filed declaration. ECF No. 367 at 2. The Court
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`additionally will consider a reply brief that Defendant Smith filed in support of
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`Codefendants Tammy Olson’s and Karis Delong’s motions to sever, ECF No. 363.
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`DISCUSSION
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`Codefendants Tammy Olson and Karis Delong both premise their motions to
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`sever on the basis that Defendant Smith would provide exculpatory testimony as to
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`those two Codefendants in a separate trial. See, e.g., United States v. Mariscal,
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`939 F.2d 884, 885 (9th Cir. 1991).
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`There exists a preference in the federal system that codefendants jointly
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`charged should be jointly tried. E.g., United States v. Hernandez-Orellana, 539
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`F.3d 994, 1001 (9th Cir. 2008). Federal Rule of Criminal Procedure 8(b) provides
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`for joinder of two or more defendants if the defendants “are alleged to have
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`participated in the same act or transaction, or in the same series of acts or
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`transactions, constituting an offense or offenses.” However, a court may sever
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`defendants’ trials under Federal Rule of Criminal Procedure 14(a) where joinder
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`“appears to prejudice a defendant.”
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`When joinder was originally proper under Rule 8(b), “a district court should
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`grant a severance under Rule 14 only if there is a serious risk that a joint trial
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`would compromise a specific trial right of one of the defendants, or prevent the
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`ORDER DENYING MOTIONS TO SEVER TRIAL ~ 4
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`Case 2:13-cr-00014-RMP Document 381 Filed 09/03/14
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`jury from making a reliable judgment about guilt or innocence.” Zafiro v. United
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`States, 506 U.S. 534, 539 (1993). “Rules 8(b) and 14 are designed ‘to promote
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`economy and efficiency and to avoid a multiplicity of trials, [so long as] these
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`objects can be achieved without substantial prejudice to the right of the defendants
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`to a fair trial.” Id. at 540 (quoting Bruton v. United States, 391 U.S. 123, 130
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`(1968)) (alteration in Zafiro).
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`One basis for ordering separate trials is when a codefendant will provide
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`exculpatory testimony at another defendant’s separate trial. E.g., Mariscal, 939
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`F.2d at 885. In considering a request for severance on this ground, the court must
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`weigh such factors as “the good faith of the intent to have a codefendant testify, the
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`probability that the testimony will materialize, the economy of a joint trial, the
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`possible weight and credibility of the predicted testimony, and the degree to which
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`the predicted testimony is exculpatory.” United States v. Cuozzo, 962 F.2d 945,
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`950 (9th Cir. 1992) (citing Mariscal, 939 F.2d at 885)). The predicted testimony is
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`not sufficiently exculpatory where it would merely be favorable to the moving
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`defendant; rather, the predicted testimony must instead be “substantially
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`exculpatory.” Mariscal, 939 F.2d at 886 (quoting United States v. Ford, 870 F.2d
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`729, 732 (D.C. Cir. 1989)). “A showing that the testimony would merely
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`contradict portions of the government’s proof is insufficient.” Id. The test for
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`ORDER DENYING MOTIONS TO SEVER TRIAL ~ 5
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`Case 2:13-cr-00014-RMP Document 381 Filed 09/03/14
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`severability on this ground is “stringent.” United States v. Reese, 2 F.3d 870, 892
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`(9th Cir. 1993).
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`Codefendants Tammy Olson and Karis Delong contend that their trials must
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`be severed from that of Defendant Smith because Defendant Smith can provide
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`exculpatory evidence that could not otherwise be presented without his testimony,
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`and that Defendant Smith likely would invoke his Fifth Amendment right to
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`remain silent if called to testify at a joint trial. Specifically, Codefendants Tammy
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`Olson and Karis Delong point to Count One of the Indictment, which charges all
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`Defendants with engaging in a conspiracy “with the intent to defraud or mislead
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`the United States and its agencies,” in violation of 18 U.S.C. § 371. As the
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`Codefendants point out, § 371 criminalizes only willful intent. United States v.
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`Tuohey, 867 F.2d 534, 537 (9th Cir. 1989). Codefendants Tammy Olson and Karis
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`Delong contend that Defendant Smith can testify that they did not act willfully,
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`because they were not privy to the communications that Defendant Smith had with
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`attorneys and consultants, or with the FDA, regarding the continued sale of MMS.
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`In support of their argument, Codefendants point to emails between
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`Defendant Smith and his previous attorney Nancy Lord. Defendant Smith has
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`asserted that he is entitled to attorney-client privilege as to these emails. The
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`emails, which were obtained by a search warrant and screened by the
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`Government’s screening team, were ordered by the Court to be provided to the
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`ORDER DENYING MOTIONS TO SEVER TRIAL ~ 6
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`Case 2:13-cr-00014-RMP Document 381 Filed 09/03/14
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`Codefendants in discovery pursuant to the Government’s Brady obligations. The
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`Court has considered the substance of these emails in ruling on the Codefendants’
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`motions to sever.
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`In addition, Defendant Smith filed a declaration in which he stated that he
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`will provide testimony at the separate trial of his Codefendants “whether such trial
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`may precede or follow” his own. ECF No. 357 at 2. Defendant Smith stated that
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`he would testify that neither Tammy Olson nor Karis Delong was privy to the
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`general business dealings of his company. Id. at 4, 13. Defendant Smith also
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`states that he would testify that Tammy Olson worked remotely and was
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`responsible for dealing with customers and third-party companies fulfilling the
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`packaging and shipping of MMS. Id. at 3-4. According to Defendant Smith, Ms.
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`Olson’s “set duties and responsibilities were extremely limited and did not include
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`regular ordering, purchasing, receiving, manufacturing, bottling, labeling,
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`production inspection, or shipping of materials, nor was [she] involved in any of
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`the technical, legal, or financial affairs of [Smith’s company].” Id. at 4.
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`As to Karis Delong, Defendant Smith would testify that she has spent the
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`last decade tending to and home-schooling the three children whom she has raised
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`with Defendant Smith. Id. at 11. According to Defendant Smith, Ms. Delong “had
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`the least involvement in PGL of any of the co-defendants,” and that where her
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`name does appear in connection with financial transactions, “the transaction was
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`ORDER DENYING MOTIONS TO SEVER TRIAL ~ 7
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`Case 2:13-cr-00014-RMP Document 381 Filed 09/03/14
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`[in almost every instance] made exclusively by [Defendant Smith] without
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`[Codefendant Delong’s] knowledge or involvement.” Id. Defendant Smith would
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`additionally testify that Codefendant Delong did not manage any business finances
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`and “thus had no reason to know what purchases were being made or for what
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`purpose”; that Codefendant Delong “never played any real managerial or decision
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`making role in the [business]”; that Codefendant Delong told Defendant Smith on
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`“numerous occasions” that she was “not interested in being involved in the
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`business”; and that even though Defendant Smith would forward business-related
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`emails to Codefendant Delong, she had told him “on more than one occasion” that
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`“she rarely read what I forwarded” and would admit to him on some occasions that
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`she did not even open an email he had forwarded to her. Id. at 11-13.
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`Defendant Smith also would apparently seek to offer character testimony
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`regarding his Codefendants, including that “they would never do anything to harm
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`another individual and never, knowingly, willfully, or intentionally break the law,
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`let alone defraud the government.” Id. at 10. Defendant Smith offers that in his
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`view that the evidence he has seen in discovery does not support the charges
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`against his codefendants. The Court finds that such testimony is not likely to be
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`admissible at trial.
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`For its part, the Government concedes that the good faith of the intent to
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`have a codefendant testify and the probability that the testimony will materialize
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`ORDER DENYING MOTIONS TO SEVER TRIAL ~ 8
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`Case 2:13-cr-00014-RMP Document 381 Filed 09/03/14
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`are two factors weighing in favor of severance. See Mariscal, 939 F.2d at 885.
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`However, the Government contends that the remaining factors each weigh against
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`severance. The Government argues that severance should not be granted because
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`Defendant Smith plans to testify on largely inadmissible matters; the admissible
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`testimony that Defendant Smith will offer is not credible; and Defendant Smith’s
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`planned testimony is not substantially exculpatory, especially in light of the
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`evidence that the Government will introduce at trial.
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`According to the Government, evidence will be introduced at trial
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`demonstrating that Codefendants Olson and Delong were aware of FDA warnings
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`regarding the safety of MMS; that the FDA had inspected and seized MMS from
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`contractors; that the FDA had provided Defendant Smith with warnings regarding
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`the legality of his actions; that Codefendant Olson was aware of the execution of
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`multiple search warrants including one executed at her then-husband’s company
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`during the course of the criminal investigation; and that Codefendant Olson
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`continued to market and sell MMS through her own website even after the search
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`warrants were executed.
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`The Government further contends that the economy of a joint trial weighs
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`heavily against severance because at least ten government witnesses reside out of
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`district and because witnesses’ memories may fade and evidence may spoil as
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`numerous trials are conducted. Finally, the Government contends that
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`ORDER DENYING MOTIONS TO SEVER TRIAL ~ 9
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`Case 2:13-cr-00014-RMP Document 381 Filed 09/03/14
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`Codefendants could obtain their evidence through other sources, including by
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`subpoenaing attorney Nancy Lord or other persons with whom Defendant Smith
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`consulted, or by testifying on their own behalf.
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`The Government additionally contends that Defendant Smith has placed
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`restrictions on his offer of testimony. See United States v. Gay, 567 F.2d 916, 919-
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`20 (9th Cir. 1978) (holding that the trial court did not abuse its discretion “in
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`refusing to accede to [a codefendant’s] conditional offer to present exculpatory
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`testimony”). The Court notes that although Defendant Smith stated that he would
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`testify regardless of whether his trial or the Codefendants’ trial came first that he
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`could assert a Fifth Amendment privilege if his trial precedes the trial of his
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`Codefendants. ECF No. 357 at 2.
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`In considering all of the relevant factors, the Court concludes that severance
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`on the grounds identified by Coefendants Tammy Olson and Karis Delong is not
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`warranted. To succeed on the grounds identified, the Codefendants must show that
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`Defendant Smith’s planned testimony would be “substantially exculpatory.”
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`Mariscal, 939 F.2d at 886. “A mere assertion of ultimate fact is not substantially
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`exculpatory.” United States v. Taren-Palma, 997 F.2d 525, 533 (9th Cir. 1993)
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`(citing Ford, 870 F.2d at 730-32), overruled on other grounds by United States v.
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`Shabani, 513 U.S. 10, 11 (1994).
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`ORDER DENYING MOTIONS TO SEVER TRIAL ~ 10
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`Case 2:13-cr-00014-RMP Document 381 Filed 09/03/14
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`Although Defendant Smith proffers testimony that Codefendants Tammy
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`Olson and Karis Delong played only limited roles in the MMS distribution scheme
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`and were thus unaware of the possible illegality of their actions, hissupporting
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`affidavit is contradictory on this point. For example, Defendant Smith proffers that
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`“Ms. Olson’s limited duties afforded her no reason or occasion to receive, buy, or
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`conceal Sodium Chlorite, let alone be aware of any such importation,” ECF No.
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`357 at 5, yet Defendant Smith concedes that Tammy Olson dealt with customers
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`purchasing MMS and that her duties “occasionally included speaking with
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`representatives of [third party fulfillment companies who packaged and shipped
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`MMS] in order to locate lost or missing orders.” Id. at 3. Moreover, Defendant
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`Smith concedes that Tammy Olson’s then-husband, Codefendant Chris Olson,
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`bottled MMS for the same company where Tammy Olson was employed as a
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`“member care” representative dealing with purchasers of MMS. Id. at 8.
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`As to Codefendant Karis Delong, Defendant Smith would testify that she
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`“had the least involvement in PGL of any of the co-defendants.” Id. at 11. Yet
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`Defendant Smith also admits that a PayPal account, a web domain, and a bank
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`account, all tied to the selling of MMS, were operated in Karis Delong’s name. Id.
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`Defendant Smith also admits that Karis Delong appeared as a managing member
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`on LLC documentation for a company selling MMS. Id. at 12. According to
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`Defendant Smith, Ms. Delong additionally “reluctantly covered for [him]” when he
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`ORDER DENYING MOTIONS TO SEVER TRIAL ~ 11
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`Case 2:13-cr-00014-RMP Document 381 Filed 09/03/14
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`left town for a business trip and “picked up product for me from the manufacturer
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`once or twice and may have attended [] meeting[s] with [him].” Id. at 12.
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`Defendant Smith additionally concedes that he forwarded numerous “business-
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`related email[s]” to Karis Delong, but contends that she “rarely read what I
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`forwarded.” Id. at 13.
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`Apart from Defendant Smith’s affidavit, the Government also states that it
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`intends to introduce evidence contradicting Defendant Smith’s characterization of
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`Codefendants Tammy Olson’s and Karis Delong’s roles in the company. For
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`example, the Indictment alleges that Karis Delong “was a managing member of
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`PGL who frequently handled financial transactions for PGL,” and used multiple
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`email addresses “to communicate with co-conspirators, suppliers, and other
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`individuals associated with MMS and PGL.” Id. at 4. The Indictment further
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`alleges that Tammy Olson “established the website purestreamhealth.com after
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`federal agents executed search warrants at various locations in Spokane,
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`Washington, related to the production and shipping of MMS,” and that Ms. Olson
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`used the purestreamhealth.com website to “continue[] marketing and selling MMS
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`to consumers.” Id. at 15.3
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`3 Although an Indictment is not evidence, the Government has indicated that it
`intends to introduce evidence backing up these charges at trial, including troves of
`electronic communications obtained through a warrant on the Defendants’
`associated Google accounts.
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`ORDER DENYING MOTIONS TO SEVER TRIAL ~ 12
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`Case 2:13-cr-00014-RMP Document 381 Filed 09/03/14
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`Therefore, Defendant Smith’s mere assertions that Codefendants Tammy
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`Olson and Karis Delong did not have knowledge of the MMS scheme are
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`insufficient to establish that his testimony would be substantially exculpatory,
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`especially in light of his accompanying statements that contradict that proposition.
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`The planned testimony offered by Defendant Smith could be viewed as inculpatory
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`as it is exculpatory, and the exculpatory components of his testimony would
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`merely contradict portions of the Government’s evidence, which is not sufficient to
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`support severance. See United States v. Pitner, 307 F.3d 1178, 1181-82 (testimony
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`is not “substantially exculpatory” where it “refutes only portions of the
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`government’s case, and leaves unaffected other evidence sufficient to convict”)
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`(citing Reese, 2 F.3d at 892).
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`Nor does Codefendants Tammy Olson’s and Karis Delong’s reliance on
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`privileged communications between Mr. Smith and his counsel, Nancy Lord,
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`establish that severance is appropriate or that they would have access to
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`substantially exculpatory evidence at their separate trials. Codefendants Tammy
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`Olson and Karis Delong assert that Defendant Smith had communications with
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`Nancy Lord regarding the legality of PGL’s actions and that Defendant Smith
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`either did not communicate his conversations with Ms. Lord to his Codefendants or
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`that he misrepresented the substance of these communications to his Codefendants.
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`However, in Defendant Smith’s declaration submitted in support of the motions to
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`ORDER DENYING MOTIONS TO SEVER TRIAL ~ 13
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`Case 2:13-cr-00014-RMP Document 381 Filed 09/03/14
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`sever he states that he would testify that he “relayed [his] reliance upon” Ms. Lord
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`and other supposed legal experts “to co-defendants Tammy Olson and Karis
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`Delong.” ECF No. 357 at 21. Defendant Smith has not said that he would testify
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`that he withheld advice given to him by Ms. Lord regarding the legality of PGL’s
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`actions. Similarly, the mere inclusion of any emails by Ms. Lord at separate trials
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`would not be relevant as to whether Codefendants Olson and Delong were aware,
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`or unaware, of their content.
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`The economy of joint trials also weighs heavily against severance. It is
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`apparent that separate trials would be entirely duplicative as the same evidence
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`would be introduced and the same witnesses would testify at separate trials of
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`Defendant Smith and his Codefendants. The concern for judicial economy is “an
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`important factor militating against severance” in this case. Reese, 2 F.3d at 892.
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`The Court additionally notes that Defendant Smith’s planned testimony
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`would not appear to bear substantial weight or credibility. As discussed above,
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`Defendant Smith will seemingly contradict himself as he seeks to portray the
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`Codefendants as having a very limited role in PGL while admitting that they in fact
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`had substantial involvement in at least some areas and instances, including dealing
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`with shippers, bottlers, and suppliers. In addition, Defendant Smith has
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`longstanding personal relationships with both Codefendants Tammy Olson and
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`Karis Delong that may minimize the weight of his testimony. However, the Court
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`ORDER DENYING MOTIONS TO SEVER TRIAL ~ 14
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`Case 2:13-cr-00014-RMP Document 381 Filed 09/03/14
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`does not place much reliance on this factor because it is ultimately the jury’s
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`function to determine the weight and credibility of any testimony given at trial.
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`The Court concludes that Codefendants Tammy Olson and Karis Delong’s
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`motions to sever should be denied because they have not met the necessary
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`condition of showing that Defendant Smith will offer substantially exculpatory
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`testimony if the trials are severed. In addition, judicial economy would not be
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`served by separate trials.
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`Accordingly, IT IS HEREBY ORDERED:
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`1. Defendant Tammy Olson’s Motion to Sever Defendant, ECF No. 317, is
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`DENIED.
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`2. Defendant Karis Delong’s Motion to Sever Defendant, ECF No. 318, is
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`DENIED.
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`3. Defendant Karis Delong’s Ex Parte Motion, ECF No. 355, is DENIED.
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`IT IS SO ORDERED.
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`The District Court Clerk is directed to enter this Order and provide copies to
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`counsel and to pro se Defendant Smith.
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`DATED this 3rd day of September 2014.
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` s/ Rosanna Malouf Peterson
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` ROSANNA MALOUF PETERSON
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` Chief United States District Court Judge
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`ORDER DENYING MOTIONS TO SEVER TRIAL ~ 15

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