United States District Court, D. Nebraska
THOMAS D. THALKEN, Magistrate Judge.
This matter is before the court on the defendant Timothy DeFoggi's (DeFoggi) Motion to Sever (Filing No. 102). DeFoggi filed a brief (Filing No. 103) in support of the motion. The government filed a brief (Filing No. 125) in opposition to the motion. The court held a hearing on the matter on March 25, 2014. See Filing No. 128 - Minutes; Filing No. 133 - Transcript (TR.).
DeFoggi is charged in the Indictment with knowingly engaging in a child exploitation enterprise, in violation of 18 U.S.C. § 2252A(g) (Count I); conspiracy to advertise child pornography, in violation of 18 U.S.C. § 2251(d)(1) and (e) (Count II); conspiracy to distribute child pornography, in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1) (Count III); and knowingly accessing a means or facility of interstate commerce to view child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) (Counts IV-VII). The Indictment alleges an internet website, designated "Website A" for the purposes of the Indictment, was established for the primary purpose of the advertisement and distribution of child pornography and a bulletin board for the discussion of matters pertinent to the sexual abuse of children, including the facilitation of anonymous communications and prevention of detection by law enforcement. "Website A" is alleged to have operated from March of 2012 until December of 2012. Law enforcement seized the computer server hosting "Website A" from a web-hosting facility in Bellevue, Nebraska, on November 18, 2012. It is alleged while "Website A" remained operational from November 19, 2012, through December 9, 2012, law enforcement officers armed with court authorized orders, monitored the electronic communications of users of "Website A, " resulting in the charges set forth in the Indictment. DeFoggi is alleged to have accessed "Website A" during the monitoring period and viewed and received child pornography on the dates alleged in Counts IV through VII of the Indictment.
On November 6, 2013, DeFoggi filed a motion to sever (Filing No. 66), which the government opposed (Filing No. 74). On December 2, 2013, the court denied DeFoggi's motion. See Filing No. 75. DeFoggi did not timely object to the court's order. On January 27, 2014, the court allowed DeFoggi's original legal counsel leave to withdraw and appointed new representation. See Filing Nos. 87, 89, and 90. Subsequently, the court granted DeFoggi thirty additional days to file pretrial motions. See Filing No. 91. On March 6, 2014, DeFoggi timely filed several pretrial motions, including the instant motion to sever. See Filing No. 102. In filing the successive motion, counsel sought to preserve the issue because DeFoggi's original counsel did not object to the December 2, 2013, order denying severance. See TR. 3-4.
DeFoggi argues the government has not produced evidence indicating there was interaction between DeFoggi and the co-defendant so as to merit joinder under Fed. R. Crim. P. 8, so joinder is prejudicial. See Filing No. 103 - Brief p. 2. Additionally, DeFoggi argues he will suffer unfair prejudice by being associated with someone who allegedly has an interest in child pornography and has received child pornography, but who has no personal relationship with DeFoggi. See id. at 2-3; TR. 4.
Rule 8(b) provides:
The indictment or information 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. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count.
Fed. R. Crim. P. 8(b) (emphasis added). "[I]t is not necessary that every defendant have participated in or be charged with each offense." United States v. Jones, 880 F.2d 55, 62-63 (8th Cir. 1989); see also United States v. Morris, 723 F.3d 934, 941 (8th Cir. 2013). The propriety of joinder, pursuant to Fed. R. Crim. P. 8, is determined primarily on the face of the indictment. See United States v. Wadena, 152 F.3d 831, 848 (8th Cir. 1998). Furthermore, Rule 8(b) is to be liberally construed in favor of joinder. See United States v. Thompson, 690 F.3d 977, 989 (8th Cir. 2012); United States v. Ruiz, 412 F.3d 871, 886 (8th Cir. 2005); United States v. Rimell, 21 F.3d 281, 288 (8th Cir. 1994); United States v. O'Connell, 841 F.2d 1408, 1432 (8th Cir. 1988).
Rule 14 of the Federal Rules of Criminal Procedure provides in part:
If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.
Fed. R. Civ. P. 14.
Under Rule 8(b), mere similarity of offenses committed by two or more individuals is not a sufficient predicate for joinder. See King v. United States, 355 F.2d 700, 703 (1st Cir. 1966). Nevertheless, "there is no requirement that each defendant have participated in the same act or acts." United States v. McRae, 702 F.3d 806, 820 (5th Cir. 2012) (internal quotations and citation omitted). "Generally, the same series of acts or transactions' means acts or transactions that are pursuant to a common plan or a common scheme." United States v. Mann, 701 F.3d 274, 289 (8th Cir. 2012); United States v. Attanasio, 870 F.2d 809, 815 (2d Cir. 1989). "[S]ome substantial identity of facts or participants between the offenses" provides support for proper joinder. McRae, 702 F.3d at 820 cited by United States v. Grey Bear, 863 F.2d 572, 584-85 & n.9 (8th Cir. 1988) (noting "when the indictment invites joint proof, the prima facie validity of joinder is shown"). "[I]n conspiracy cases... the refrain is that defendants charged with a common conspiracy ...