United States District Court, D. Nebraska
Gossett United States Magistrate Judge
matter is before the court on the motions to sever filed by
defendants Dionte Dortch (Filing No. 205), Gregory
Bahati (Filing No. 212), Brandon Heard (Filing
No. 220), Julio Arias (Filing No. Filing No.
229) and Jerell Haynie (Filing No. 240). The
court will deny the motions.
defendants are jointly charged in Count One of the
Superseding Indictment with a conspiracy to violate the
Racketeer Influenced and Corrupt Organizations Act
(“RICO”), in violation of 18 U.S.C. 1962(d),
arising out of their alleged criminal activities in
connection with the 40th and 44th Ave.
Crips street gangs. The Superseding Indictment alleges that
between 2008 and 2015, the 40th Ave. and
44th Ave. Crips street gangs “cliqued
up” to form an enterprise under 18 U.S.C. §
1961(4). The Superseding Indictment alleges the enterprise
engaged in a pattern of racketeering activity under 18 U.S.C.
§ 1962(c), including murder, attempted murder, witness
tampering, and the manufacture and distribution of controlled
substances. (Filing No. 20 at pp. 3-7). Count One
lists approximately 37 Overt Acts allegedly committed by the
defendants or other co-conspirators during the course of the
conspiracy. (Filing No. 33 at pp. 7-12).
addition to the RICO conspiracy charged in Count One, each
defendant is charged individually with separate crimes
alleged to have been committed in furtherance of the
• Arias is charged in Counts Thirteen, Fourteen, and
Fifteen with distribution of cocaine base on three occasions
in 2015, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(C). (Filing No. 33 at pp. 18-19).
• Bahati is charged with making threats in aid of
racketeering, in violation of 18 U.S.C. § 1959(a)(4)
(Count Eight), and brandishing a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii)
• Dortch is charged with being a felon in possession of
a firearm, in violation of 18 U.S.C. §§ 922(g)(2)
and 924(a)(2) (Count Ten); witness tampering, in violation of
18 U.S.C. §§ 1512(b)(1), 1512(b)(2)(A), and
1512(b)(3) (Count Eleven); and attempted obstruction of
justice, in violation of 18 U.S.C. § 1512(c)(2) (Count
• Haynie is charged with attempted murder in aid of
racketeering, in violation of 18 U.S.C. § 1959 (a)(5)
(Count Two); attempt to commit assault with a dangerous
weapon in aid of racketeering, in violation of 18 U.S.C.
§ 1959(a)(6) (Count Three); and discharging a firearm
during a crime of violence, in violation of 18 U.S.C.
§§ 924(c)(1)(A)(ii) and (iii) (Count Four).
• Heard is charged in Counts Five, Six, and Seven with
distribution of cocaine base on three occasions in 2014, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).
(Filing No. 33 at pp. 15-16).
defendants have filed the present motions to sever their
individual charges from the other defendants, arguing that
joinder presents the risk of undue prejudice.
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(a) “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).
8(b) permits the government to “charge 2 or more
defendants if they are alleged to have participated in the
same act or transaction, or in the same series of acts or
transactions, constituting an offense or offenses.”
Fed. R. Crim. P. 8(b). “Generally, ‘persons
charged in a conspiracy or jointly indicted on similar
evidence from the same or related events should be tried
together.'” United States v. Lewis, 557
F.3d 601, 609 (8th Cir. 2009) (quoting United States v.
Adkins, 842 F.2d 210, 211 (8th Cir. 1988). Other
circuits have held that when defendants are charged with a
RICO conspiracy, seemingly unrelated offenses satisfy Rule
8(b)'s “same series of acts or transactions”
requirement as long as “the criminal acts charged . . .
were charged either as predicates for the racketeering
charge, or as acts undertaken in furtherance of a commonly
charged RICO enterprise.” See United States v.
Irizarry, 341 F.3d 273, 289-90 (3d Cir. 2003). See also,
United States v. Eufrasio, 935 F.2d 553, 567 (3d
Cir. 1991) (“Rule 8(b) provides substantial leeway to
prosecutors who would join racketeering defendants in a
single trial. The rule permits joinder of defendants charged
with participating in the same racketeering enterprise or
conspiracy, even when different defendants are charged with
different acts, so long as indictments indicate all the acts
charged against each joined defendant . . . are charged as
racketeering predicates or as acts undertaken in furtherance
of, or in association with, a commonly charged RICO