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 is denied.
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.
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.
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).
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
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
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
Fed. R. Crim.P. 14.
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).
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 ...