United States District Court, D. Nebraska
GOSSETT, III UNITED STATES MAGISTRATE JUDGE.
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
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.
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
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.
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 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
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 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,
Defendant's Motion to Sever Counts (#18) is granted.
Count 3 is severed from Counts 1 and 2 for trial.
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 ...