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United States v. Elder

United States District Court, D. Nebraska

June 7, 2016

SHARON A. ELDER; Defendants.


          Cheryl R. Zwart United States Magistrate Judge

         This matter is before the court on Defendant Sharon Elder’s Motion to Sever her trial from that of her co-defendants. (Filing No. 89). For the reasons set forth below the motion will be denied.


         Elder and co-defendants Allen Peithman, Jacie Sanne, Cornerstone Plaza Inc., and AEP Properties L.L.C. are charged with conspiracy to distribute controlled substances in violation of Title 21, USC §§ 841(a)(1), 841(b)(1), and 846. Defendant Sanne has pleaded guilty to the charges filed against her and will not be a part of the trial. This case has been pending since August of 2015 and is currently set for a four-week jury trial to begin on August 1, 2016.


         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). But 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. Lewis, 557 F.3d at 609; 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.

Fed.R.Crim.P. 14.

         When defendants are properly joined, a strong presumption exists in favor of trying the defendants together because a joint trial affords the jury the best perspective on all of the evidence, thereby increasing the likelihood of a correct outcome. Lewis, 557 F.3d at 6099. 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). The defendant seeking severance carries a heavy burden and "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)).

         In her motion to sever, Elder argues "[a] fair trial cannot be had without severance." (Filing No. 89 at CM/ECF p. 4). Elder asserts her co-defendants "may have given statements which either directly or indirectly incriminate [her], " (Id. at CM/ECF p. 3), and admission of those potential statements at a joint trial will prejudice Elder and create a problem under Bruton v. United States, 391 U.S. 123 (1968). (Id. at CM/ECF pp. 3-4).

         Under Bruton, where one codefendant implicates another codefendant in a pretrial confession and that confession is admissible at trial, the codefendants’ trials must be severed.

However, "[i]f a codefendant's confession does not incriminate the defendant on its face, but does so only when linked to additional evidence, it may be admitted if a limiting instruction is given to the jury and the defendant's name is redacted from the confession." Flaherty, 76 F.3d at 9722 (citing Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 1709, 95 L.Ed.2d 176 (1987)). Furthermore, Bruton does not apply at all when a codefendant's statements do not incriminate the defendant either on their face or when considered with other evidence. Escobar, 50 F.3d at 14222.

United States v. Melina, 101 F.3d 567, 569-70 (8th Cir. 1996) (abrogated on other grounds).

         Elder asserts it is very likely that the government will try to introduce one or more of the codefendants’ statements against her at trial. However, Elder raises only a conclusory allegation that the codefendants’ statements will either directly or indirectly incriminate her. She does not describe those alleged statements and cannot even state with certainty that such statements exist.[1] This court cannot ...

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