United States District Court, D. Nebraska
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge
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.
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
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
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)).
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.
Bruton, where one codefendant implicates another
codefendant in a pretrial confession and that confession is
admissible at trial, the codefendants’ trials must be
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
United States v. Melina, 101 F.3d 567, 569-70 (8th
Cir. 1996) (abrogated on other grounds).
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. This court cannot ...