United States v. Smith

MEMORANDUM *

Kennith Smith appeals his conviction and sentence for conspiracy to defraud the United States, in violation of 18 U.S.C. § 371 .

1. Denial of Motion to Sever

The district court did not abuse its discretion in denying Smith’s motion to sever. See United States v. Mayfield, 189 F.3d 895, 899 (9th Cir.1999). Smith has not established that his joint trial with co-defendants Helen Smith and Leroy Sbrusch compromised a specific trial right or prevented the jury from making a reliable judgment about his guilt or innocence. See Zafiro v. United States, 506 U.S. 534, 539 , 113 S.Ct. 933 , 122 L.Ed.2d 317 (1993).

First, Smith has failed to establish that there was a prejudicial spill-over effect from being tried alongside Helen Smith and Sbrusch. Even if there was a potential for prejudice, this potential was cured by *589 the district court’s diligence in providing numerous cautionary and limiting instructions before trial, during trial, at the close of trial, and in the jury instructions. See United States v. Cuozzo, 962 F.2d 945, 950 (9th Cir.1992).

Second, Smith has not established that he suffered prejudice by not being able to call co-defendant Helen Smith to…