United States District Court, D. Hawaii
ORDER DENYING DEFENDANT MICHAEL H. HIGA'S RENEWED
MOTION TO SEVER DEFENDANTS (ECF NO. 104)
Gillmor United States District Judge.
Defendant Michael H. Higa's First Motion to Sever
on August 28, 2018, Defendant Higa filed DEFENDANT MICHAEL H.
HIGA'S MOTION TO SEVER DEFENDANTS. (ECF No. 47).
Higa made three arguments: (1) his defense strategy was
mutually antagonistic to the defense strategy of his
codefendant Wagdy A. Guirguis; (2) he would be prejudiced by
spillover evidence; and (3) he would lose his codefendant
Guirguis' exculpatory testimony.
September 26, 2018, the Court issued ORDER DENYING DEFENDANT
MICHAEL H. HIGA'S MOTION TO SEVER DEFENDANTS. (ECF No.
69). The Court explained that Defendant Higa failed to meet
the burden required to warrant severance based on mutually
antagonistic defenses because merely blaming a codefendant
did not rise to the level of antagonistic defenses. The Court
also determined that Defendant Higa had failed to establish,
with particularity, how he would be prejudiced by spillover
evidence. Lastly, the Court found that Defendant Higa did not
describe how Defendant Guirguis' testimony would assist
him. Defendant Higa did not provide the Court with an
affidavit indicating that Defendant Guirguis would provide
The Renewed Motion to Sever Defendants Before the
October 11, 2018, Defendant Higa filed DEFENDANT MICHAEL H.
HIGA'S RENEWED MOTION TO SEVER DEFENDANTS. (ECF No. 104).
October 12, 2018, the Government filed GOVERNMENT'S
RESPONSE TO DEFENDANT MICHAEL HIGA'S RENEWED MOTION FOR
SEVERANCE. (ECF No. 105).
Higa once again said: (1) Defendant Higa and his codefendant
Guirguis have mutually antagonistic defenses; (2) claimed, in
general language, that exculpatory testimony would be
available at a severed trial; and (3) Defendant Higa would
suffer prejudice from spillover evidence.
the reason for severance is based on the desire for a
codefendant's testimony, the defendant must establish (1)
that he would call the codefendant at a severed trial; (2)
that the codefendant would in fact testify at a severed
trial, and (3) that the testimony would be substantially
exculpatory. United States v. Pitner, 307 F.3d 1178,
1181 (9th Cir. 2002) (citing United States v. Reese,
2 F.3d 870, 892 (9th Cir. 1993)). The district court must
consider the weight and credibility of the proposed testimony
and the judicial economy of severance. Id. (citing
United States v. Castro, 887 F.2d 988, 998 (9th Cir.
Higa argues that exculpatory testimony may be available if
the trial is severed. In his renewed motion, Higa erroneously
relies on a case from this District, United States v.
Pflueger, Cr. No. 10-00631-02 LEK, 2012 WL 1033573 (D.
Haw. March 27, 2012). Unlike the circumstances here, the
codefendant in Pflueger provided a declaration
attesting that he will testify. Id. at *1. In
Pflueger, the district court granted defendant James
Henry Pflueger's motion to sever because his codefendant
submitted a declaration indicating his agreement to testify
in Pflueger's defense and provide exculpatory testimony.
Id. at *1-*2. Further, Pflueger's attorney
submitted a declaration attesting that he would call
Pflueger's codefendant to testify. Id.
Higa has not provided this Court with declarations from
Defendant Guirguis attesting that Defendant Guirguis would
provide exculpatory testimony on Higa's behalf.
Pflueger, defendant Pflueger was charged with
various tax crimes, including conspiracy. Pflueger,
2012 WL 1033573, at *1. Pflueger sought an order severing his
trial from his codefendant Dennis L. Duban. Id.
Pflueger argued that Duban would testify in Pflueger's
defense and provide exculpatory testimony if their trials
were severed but that Duban would not do so in a joint trial
because doing so would waive his Fifth Amendment privilege
against self-incrimination pursuant to the United States
Constitution. Id. at *1-*2. Pflueger's attorney
submitted a declaration stating that he would call
codefendant Duban as a defense witness if the trials were
severed. Id. at *1. Duban submitted a declaration
in camera attesting that he would testify in
Pflueger's defense if their trials were severed.
Id. Duban was Pflueger's Certified Public
Accountant and tax preparer and he was responsible for all of
Pflueger's tax filings during the years relevant to the
indictment. Duban provided that he directly communicated with
Pflueger about his tax documents and would be in the unique
position of being able to testify as to Pflueger's
knowledge, state of mind, and role in the preparation of his
tax documents. Id. The ...