United States District Court, D. Nebraska
Gossett, III United States Magistrate Judge.
matter is before the court on Defendant Silas Kitto's
Motion to Sever Counts and Request for Evidentiary Hearing
and Oral Argument (Filing No. 21). Defendant seeks to sever
all three counts charged in the Indictment from one another
because they are not based upon the same act or transaction,
are not factually related, and joinder would cause unfair
prejudice. (Filing No. 21). For the reasons explained below,
the motion will be denied.
is charged in a three-count Indictment with: on or about
September 2015, sexual abuse of an Indian female, W.W., by
threat, in violation of 18 U.S.C. §§ 2242(1) and
1153 (Count I); on or about April 2015 and July 2015, abusive
sexual contact with R.K., a child under twelve years of age,
in violation of 18 U.S.C. §§ 2244(a)(5) and 1153
(Count II); and, on or about April 16, 2016, abusive sexual
contact with K.D., a child between twelve and sixteen years
of age, in violation of 18 U.S.C. §§ 2244(a)(3) and
1153 (Count III). (Filing No. 1). Each offense is alleged to
have taken place within the boundaries of the Santee Sioux
Nation Indian Reservation. Defendant filed the instant motion
to sever Counts I, II, and III of the Indictment.
8(a) of the Federal Rules of Criminal Procedure permits the
government to charge multiple counts in a single indictment
if the offenses “are of the same or similar character,
or are based on the same act or transaction, or are connected
with or constitute parts of a common scheme or plan.”
Fed. R. Crim. P. 8(a). Rule 8 “is broadly construed in
favor of joinder to promote the efficient administration of
justice.” United States v. Taken Alive, 513
F.3d 899, 902 (8th Cir. 2008). “[W]here the offenses
are similar in character and occurred over a relatively short
period of time and the evidence overlaps, joinder is
ordinarily appropriate.” United States v.
Robinson, 781 F.3d 453, 460 (8th Cir. 2015), cert.
denied, 136 S.Ct. 596 (2015).
initial matter, the Court finds that the three counts of the
Indictment were properly joined pursuant to Fed. R. Crim. P.
8(a). All of the charged offenses are similar in nature in
that they involve Defendant's alleged sexual contact or
sexual acts with young girls within the boundaries of the
Santee Sioux Nation Indian Reservation. The Indictment
alleges the offenses occurred during a relatively short
one-year period of time between April 2015 and July 2015,
September 2015, and April 16, 2016. The Court disagrees with
Defendant's argument that the one-year time frame is not
a relatively short period of time. (Filing No. 22 at p. 3).
Although “there is no per se rule on when the time
period between similar offenses is so great that they may not
be joined, ” the Eighth Circuit Court of Appeals has
found joinder was appropriate where two offenses of attempted
aggravated sexual abuse occurred one year apart. United
States v. Rodgers, 732 F.2d 625, 629 (8th Cir. 1984);
see United States v. Tyndall, 263 F.3d 848, 850 (8th
Cir. 2001). Moreover, the Eighth Circuit has upheld joinder
of charges for offenses based on events separated by
substantially longer periods of time than one year. See
id. (citing United States v. Lindsey, 782 F.2d 116,
117 (8th Cir. 1986) (17 month time period); and
Rodgers, 732 F.2d at 629 (20 month time period)).
Finally, joinder is appropriate because the evidence as to
each offense overlaps. The evidence supporting each offense
will likely be admissible under Federal Rule of Evidence 413,
which permits evidence of defendant's other sexual
assaults to be used in the another sexual assault case
against the defendant. See Tyndall, 263 F.3d at 850.
the court determines that the offenses are properly joined
under Rule 8, Rule 14 specifies that the district court may
nevertheless order separate trials if a joint trial would
“prejudice a defendant or the government.” Fed.
R. Crim. P. 14. “If joinder is proper under Rule 8, the
defendant seeking severance has a heavy burden of
demonstrating that a joint trial will impermissibly infringe
[upon] his right to a fair trial.” United States v.
McCarther, 596 F.3d 438, 442 (8th Cir. 2010).
“[T]here is a strong presumption against severing
properly joined counts.” Id. Only in an
unusual case will the prejudice resulting from a joint trial
be substantial enough to outweigh the “general
efficiency of joinder.” Taken Alive, 513 F.3d
at 903. Therefore, separate trials are required only where
prejudice caused by a joint trial is “severe or
compelling.” United States v. Kirk, 528 F.3d
1102, 1108 (8th Cir. 2008).
has failed to show that this is one of the rare cases where a
joint trial will cause severe or compelling prejudice. The
Eighth Circuit has made clear that “[n]o prejudice
results from the refusal to sever when evidence of one charge
would be admissible in a separate trial on the other.”
McCarther, 596 F.3d at 442; see also, United
States v. Steele, 550 F.3d 693, 702 (8th Cir. 2008)
(“A joint trial does not result in additional prejudice
where evidence of one charge would have been admissible in a
separate trial on another.”). “Although Federal
Rule of Evidence 404(b) generally excludes the admission of
evidence of other crimes to show the propensity to commit a
particular crime, Congress excepted sexual assault cases from
this rule when it enacted Federal Rule of Evidence
413.” Tyndall, 263 F.3d at 850. As noted
above, Federal Rule of Evidence 413(a) provides, “In a
criminal case in which a defendant is accused of a sexual
assault, the court may admit evidence that the defendant
committed any other sexual assault.” The evidence of
the offenses charged in each count of the Indictment would
likely be admissible in separate trials against Defendant
under the preceding rule.
Defendant cannot show severe or compelling prejudice
warranting severance of the charges. See McCarther,
596 F.3d at 442; Steele, 550 F.3d at 702.
Accordingly, IT IS ORDERED: Defendant Silas Kitto's
Motion to Sever Counts and ...