United States District Court, D. Nebraska
MEMORANDUM AND ORDER
CHERYL R. ZWART, Magistrate Judge.
This matter is before the court on Defendant Robin Usher's Motion to Sever her trial from that of her co-defendant, Scott Usher, (Filing No. 34). For the reasons set forth below the motion is denied.
Defendants Scott and Robin Usher, husband and wife, are named in a five-count indictment charging each with one count of conspiracy to commit wire fraud and four substantive counts of wire fraud. (Filing No. 1). The indictment alleges Scott Usher held himself out as an inventor who had designed valuable pieces of technology capable of, among other things, operating center pivot irrigation systems with solar power and inexpensively desalinating sea water.
The indictment alleges that Scott Usher solicited money from investors and lenders through intentional misrepresentations. Specifically, Scott Usher allegedly represented to potential investors and lenders that certain individuals, companies, and governments were interested in purchasing the right to use certain technologies. Further, he allegedly represented that investors and lenders would receive significant profits. The indictment alleges Scott Usher's representations about meeting with government leaders, foreign dignitaries, and other well-known individuals were entirely fabricated.
The indictment also charges Robin Usher with conspiracy, alleging she executed documents establishing a number of businesses that were purportedly created to market Scott Usher's technologies, represented that Scott Usher was attending or did attend meetings with foreign officials, and participated in the conversion of alleged victims' money to purposes unrelated to the Ushers' businesses.
As part of the government's investigation, law enforcement officers conducted a noncustodial interview of Scott Usher. An attorney was present for Scott Usher. Robin Usher was also present. Robin Usher only minimally participated in the interview and she did not answer any questions directly. During the interview, Scott Usher admitted he did not meet with, or even know, many of the individuals he had previously represented were interested in his technologies. Scott Usher also admitted to using funds from investors for his personal expenses.
Scott and Robin Usher initially appeared before the court on June 6, 2013 and based upon the Final Progression Order, (Filing No. 26), were originally scheduled for a joint trial on March 21, 2014. The trial was later continued pending the resolution of several pretrial motions, including Robin Usher's motion to sever her trial from Scott Usher's trial. (Filing No. 34).
An evidentiary hearing on Robin Usher's Motion to Sever was held on May 15, 2014. At that hearing, counsel for Robin Usher proffered a statement reflecting the substance of Scott Usher's anticipated testimony if the trials were severed and he testified on her behalf. Robin Usher offered a CD recording of the police interview of Scott Usher.
At the hearing, the United States elicited testimony from Special Agent Michael W. Maseth, who was present during the interview. He confirmed that none of the admissions made by Scott Usher included or mentioned Robin Usher. And Robin Usher made no incriminating statements.
Generally, persons charged in a conspiracy or jointly indicted on similar evidence should be tried together. U.S. v. Lewis , 557 F.3d 601, 609 (8th Cir. 2009); United States v. Brown , 331 F.3d 591, 595 (8th Cir. 2003). Even when joinder is proper under Rule 8, pursuant to Rule 14 of the Federal Rules of Criminal Procedure, a judge may order severance if joinder at trial will prejudice the defendant. U.S. v. Lewis , 557 F.3d 601, 609 (8th Cir. 2009); United States v. Wadena , 152 F.3d 831, 849 (8th Cir. 1998). Rule 14 provides:
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. In ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.
When defendants are properly joined, there is a strong presumption for a joint trial because it affords the jury the best perspective on all of the evidence, thereby increasing the likelihood of a correct outcome. Lewis , 557 F.3d at 609. This presumption can only be overcome if the prejudice is "severe or compelling." United States v. Crumley , 528 F.3d 1053, 1063 (8th Cir.2008). "[A] defendant must show real prejudice, ' that is, something more than the mere fact that [s]he would have had a better chance for acquittal had [s]he been tried separately.'" United States v. Mickelson , 378 F.3d 810, 817 (8th Cir. 2004) (quoting United States v. Oakie , 12 F.3d 1436, 1441 (8th Cir. 1993) (citing United States v. Adkins , 842 F.2d 210, 211-12 (8th Cir.1988)).
A defendant seeking severance has the heavy burden of demonstrating that a joint trial will impermissibly infringe on her right to a fair trial. United States v. Baker , 98 F.3d 330, 340 (8th Cir. 1996).
Joint trials of defendants indicted together are generally conducted because they promote efficiency and the interests of justice, Zafiro v. United States , 506 U.S. 534, 538, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993), but Rule 14 permits severance if "it appears that a defendant or the government is prejudiced by the joinder." Fed.R.Crim.P. 14. Severance is appropriate "only if there is a serious risk that 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." Zafiro , 506 U.S. at 539, 113 S.Ct. 933. It is not an abuse of discretion to deny a severance motion when not every joined defendant has participated in every offense charged, Delpit, 94 F.3d at 1143-44, when evidence which is ...