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United States v. Brannon

United States District Court, D. Nebraska

June 17, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT M. BRANNON, Defendant.

          ORDER

          F.A. GOSSETT, III UNITED STATES MAGISTRATE JUDGE.

         This case is before the court on defendant Robert M. Brannon's Motion to Sever Counts (#18). The defendant alleges that the joinder of Count 3 with Counts 1 and 2 is improper under Fed. R. Crim. P. 8(a) because the offenses are not of the same or similar character, are not based upon the same act or transaction, and are not connected with a constituting part of a common scheme or plan. Additionally, the defendant alleges joinder of Count 3 is prejudicial under Fed. R. Crim. P. 14 because a joint trial will put the element of the defendant's prior felony conviction before the jury when it would not otherwise be put before the jury as to Counts 1 and 2.

         The Government counters that the charges are “factually inter-related” under Rule 8, that the evidence would be admissible under Fed.R.Evid. 404(b), and that the defendant has not presented a clear showing of prejudice under Rule 14.

         The defendant is charged in an indictment with:

Count 1: interference with commerce by robbery, punishable by up to twenty years in prison, a possible $250, 000 fine, three years of supervised release, and a $100 special assessment;
Count 2, brandishing a firearm during a crime of violence, and Count 3, felon in possession of a firearm, punishable by up to life imprisonment, a $250, 000 fine, three years of supervised release, and a $100 special assessment; and
Count 3, felon in possession of a firearm, punishable by up to ten years imprisonment, a $250, 000 fine, three years of supervised release, and a $100 special assessment.

         Both Counts 1 and 2 involve a January 10, 2016, robbery at a Dunkin Donuts shop wherein it is alleged the defendant displayed a black semiautomatic handgun[1] and demanded money. Count 3 is a charge of possession of a firearm by a felon on January 12, 2016, wherein during the service of an arrest warrant, the defendant was found to have a firearm in his waistband.

         Rule 8(a) permits the Government to charge multiple counts in a single indictment, provided the offenses charged are (1) of the same or similar character, (2) are based on the same act or transaction, or (3) constitute parts of a common scheme or plan. Joinder is proper if any one of these three standards is met. Thus, Rule 8 generally favors joinder “to promote the efficient administration of justice.” United States v. Taken Alive, 513 F.3d 899, 902 (8th Cir. 2008). Joint trials, on all counts of an indictment, are generally preferable for several reasons. First, separate trials necessarily involve a certain degree of “inconvenience and expense.” United States v. Pherigo, 327 F.3d 690, 693 (8th Cir. 2003). Second, trying all counts together serves the important function of giving “the jury the best perspective on all of the evidence, ” thereby increasing the likelihood that the jury will reach “a correct outcome.” Id. In this case, I find that Count 3, the felon in possession of a firearm charge factually is not of similar character, is not based on the same act, and is not part of a common scheme or plan. Joinder is, therefore, not proper under Rule 8. Additionally, regarding the government's claim of admissibility under Rule 404(b), the cases cited by the government are clearly distinguishable from the facts in this case. The government has not made a clear showing[2] that the defendant's possession of a firearm on January 12, 2016, would be admissible under 404(b) in the trial of Counts 1 and 2 which occurred on January 10, 2016.

         IT IS ORDERED:

         1. Defendant's Motion to Sever Counts (#18) is granted.

         2. Count 3 is severed from Counts 1 and 2 for trial.

         A party may object to a magistrate judge's order by filing a "Statement of Objections to Magistrate Judge's Order" within 14 days after being served with the order. The objecting party ...


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