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United States v. Peithman

United States District Court, D. Nebraska

September 15, 2016

UNITED STATES OF AMERICA, Plaintiffs,
v.
ALLEN E. PEITHMAN JR., SHARON A. ELDER, JACIE L. SANNE, CORNERSTONE PLAZA, AND Inc.; and AEP PROPERTIES, L.L.C.; Defendants.

          MEMORANDUM AND ORDER

          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 is denied.

         BACKGROUND

         Sharon Elder and co-defendants Jacie Sanne, Allen Peithman, AEP Properties LLC, and Cornerstone Plaza, Inc., are charged with conspiracy to distribute various controlled substances in violation of 21 USC § 846. (Filing No. 1). Peithman and Elder, a son and mother, are further charged with conspiracy to distribute controlled substances, conspiracy to distribute misbranded drugs with intent to defraud or mislead, and conspiracy to structure, among other charges. (Id.) The indictment alleges Elder and Peithman were engaged in a scheme to sell synthetic drugs containing multiple illegal substances misbranded as “potpourri.” (Filing No. 1 at CM/ECF pp. 9-10). According to the indictment, Elder and Peithman then engaged in illegal schemes such as structuring and the purchasing of investment property with the proceeds from the illegal sales.

         Defendant Sanne has pleaded guilty to the charges she faced. The trial for Peithman and Elder was most recently set for October 24, 2016 but has been postponed for the resolution of several pending motions. (Filing No. 133). Elder brings this motion to sever her trial from the trial of Peithman. She argues that a fair trial is impossible without severance.

         The undersigned previously denied Elder's motion to sever finding that Elder failed to meet the high burden required for severance. (Filing No. 93). Elder appealed this denial and based upon additional facts provided within Elder's objection, Judge Kopf determined the motion warranted a second review and remanded the motion for further determination. (Filing No. 99).

         As ordered by the court, the government has provided the following for in camera review: 1) All evidence of statements which the government intends to use at trial that were made by a codefendant being tried and may implicate Defendant Elder; and 2) all exhibits and evidence which the government intends to offer at the trial of Elder's codefendants that will be inadmissible against Elder. (Filing No. 132). The undersigned has reviewed the exhibits and evidence produced for the determination of this motion.

         LEGAL ANALYSIS

         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). 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, there is a strong presumption for a joint trial because it affords the jury the best perspective on all of the evidence, thereby increasing the likelihood of a correct outcome. Lewis, 557 F.3d at 609. 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). “[A] defendant 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) (citations omitted).

         A defendant seeking severance has the heavy burden of demonstrating that the joint trial will impermissibly infringe on her right to a fair trial. United States v. Baker, 98 F.3d 330, 340 (8th Cir. 1996).

Joint trials of defendants indicted together are generally conducted because they promote efficiency and the interests of justice, Zafiro v. United States,506 U.S. 534, 538, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993), but Rule 14 permits severance if “it appears that a defendant or the government is prejudiced by the joinder.” Fed.R.Crim.P. 14. Severance is appropriate “only if there is a serious risk that joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro, 506 U.S. at 539, 113 S.Ct. 933. It is not an abuse of discretion to deny a severance motion when not every joined defendant has participated in every offense charged, Delpit, 94 F.3d at 1143-44, when evidence which is ...

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