Jose Luis Cepeda-Cortes v. United States

Twenty-five years ago, in Zafiro v. United States, 506 U.S. 534 (1993), this Court gave its only guidance to lower federal courts and federal criminal practitioners concerning the proper application of Rule 14(a), Federal Rules of Criminal Procedure, in determining if a criminal defendant was entitled to a separate trial due to prejudice accruing from the “spill-over” effect of evidence concerning a co-defendant’s extraneous bad acts that would not have been admissible in an individual trial. The standard annunciated in Zafiro was whether “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.” However, this Court failed to elaborate on the circumstances in which there might be such a “serious risk” that “evidence of a codefendant’s wrongdoing . . . erroneously could lead a jury to conclude that a defendant was guilty” as to require severance or the factors and considerations lower courts should take into account in making such a decision. In light of the amorphous standard, lower courts are untethered to any particular factors or considerations in determining when a Rule 14(a) severance is required and when it is not. This has resulted in unpredictability in lower court rulings and inconsistency in application of Rule 14(a) to similarly situated federal criminal defendants. Does a fair and consistent application of Rule 14(a) require this Court to re-examine its decision in Zafiro and clarify the factors to be considered in