LEONARD T. STRAND, Magistrate Judge.
This case is before me on a motion to sever (Doc. No. 38) filed by defendant Trey Michael Boykin (Boykin). Plaintiff (the Government) has filed a partial resistance (Doc. No. 42). Boykin's co-defendant, Gerry Alan Patterson (Patterson) has not filed a response. No party has requested oral argument and, in any event, I find that oral argument is not necessary. See Local Rule 7(c). The motion is now fully submitted.
On May 21, 2013, the Grand Jury returned an indictment against Boykin and Patterson. The indictment contains a total of six counts, some naming both defendants and others naming only one:
Count Offense Charged and Date(s) Alleged Against 1 Conspiracy to distribute marijuana, June 2012 through February Boykin only 25, 2013 2 Kidnapping, February 25, 2013 Both 3 Possession of a firearm in furtherance of a crime of violence, Both February 25, 2013 4 Prohibited person in possession of a firearm, January 6, 2012 Patterson only 5 Possession of a stolen firearm, January 6, 2012 Patterson only 6 Prohibited person in possession of a firearm, February 25, 2013 Both
See Doc. No. 3. Trial is currently scheduled to begin November 18, 2013.
In his motion for severance, Boykin seeks to both (a) sever his trial from Patterson's and (b) sever the four counts charged against him into two separate trials, one for Count 1 and one for counts 2, 3 and 6. In its resistance, the Government states that it does not object to severing Boykin from Patterson for trial. However, the Government does object to severing the counts against Boykin into two separate trials.
1. Joinder of Defendants
An indictment may "charge 2 or more defendants 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." Fed. R. Crim. P. 8(b). However, the court may sever defendants if it appears that a defendant or the Government is prejudiced by a joinder. Fed. R. Crim. P. 14(a). The grant or denial of a motion to sever is left to the court's discretion. See, e.g., United States v. Mickelson, 378 F.3d 810, 817 (8th Cir. 2004). The Supreme Court has held that the joinder and severance rules "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." Zafiro v. United States, 506 U.S. 534, 540 (1993) (internal quotations omitted).
A defendant seeking severance must show "real prejudice, " that is, "something more than the mere fact that he would have had a better chance for acquittal had he been tried separately." United States v. Blaylock, 421 F.3d 758, 766 (8th Cir. 2005) (quoting United States v. Oakie, 12 F.3d 1436, 1441 (8th Cir. 1993)). A defendant can demonstrate real prejudice by showing either (a) his defense is irreconcilable with that of his co-defendant(s) or (b) the jury will be unable to compartmentalize the evidence as it relates to the separate defendants. Mickelson, 378 F.3d at 818; see also United States v. Washington, 318 F.3d 845, 858 (8th Cir. 2003); United States v. Jackson, 64 F.3d 1213, 1217 (8th Cir. 1995). In addition, the Supreme Court has recognized that a defendant is deprived of his rights under the Confrontation Clause when a codefendant's confession that incriminates both defendants is introduced at their joint trial, even if the jury is instructed to consider that confession only against the nontestifying codefendant. Bruton v. United States, 391 U.S. 123 (1968).
Here, Boykin contends that evidence pertaining to Patterson would have a spillover effect, creating prejudice to Boykin in the form of a "guilt by association" inference. Boykin also contends that Patterson has given statements in which he purports to implicate Boykin, thus creating a situation in which the two defendants have irreconcilable defenses. Based on Boykin's arguments, and the Government's consent to separate trials, I find that Boykin would suffer "real prejudice" if tried ...