United States District Court, D. Nebraska
Michael D. Nelson United States Magistrate Judge
matter is before the Court on the Defendants' Motions to
Sever (Filing Nos. 155, 159, 165,
167, 171, 172, 177,
181, and 184). A hearing was held on
December 5, 2017. All Defendants were present with counsel as
follows: Jessica Webster-Valentino
(“Webster-Valentino”), represented by Matthew
Munderloh; Barbara Freemont (“Freemont”),
represented by Mallory Hughes; Amen Sheridan
(“Sheridan”), represented by David Stickman;
Rodney Morris (“Morris”), represented by Kenneth
Jacobs; Doran Morris, Jr. (“Morris, Jr.”),
represented by Justin Eichmann; Forrest Aldrich (“F.
Aldrich”), represented by William McGinn; Mitchell
Parker (“Parker”), represented by Julie Frank;
Tillie Aldrich (“T. Aldrich”), represented by
Karen Vervaecke; and Jeff Miller (“Miller”),
represented by Terry White. The government was represented by
Court has reviewed the Motions to Sever, Briefs in Support
(Filing Nos. 156, 160, 166, 167-1,
173, 174, 178, and 185),
the government's Brief in Opposition (Filing No.
198), and Sheridan's reply to the government's
brief (Filing No. 200). In addition, the Court has
reviewed the government's supplemental brief and exhibits
submitted to chambers (with copies provided to counsel for
each defendant) in accordance with the text order entered
November 21, 2017. (Filing No. 202). At the hearing, the
Court received into evidence under seal the government's
Exhibits 1 through 12. A transcript (TR.) of the hearing was
prepared and filed on December 10, 2017. (Filing No.
208). Upon consideration of the filings, the severance
and redaction plan proposed by the government, and the
arguments of counsel, the Court finds as follows:
background and facts alleged in the Indictment are set forth
fully in the Findings and Recommendation on the
Defendants' Motions to Dismiss for Lack of Subject Matter
Jurisdiction (Filing No. 209).
of the Indictment charges Webster-Valentino and Freemont with
conspiracy to convert and misapply $5, 000 or more from a
program receiving federal funds in violation of 18 U.S.C.
§ 666(a)(1)(A) and § 371, and conspiracy to convert
and misapply moneys of a health care benefit program in
violation of 18 U.S.C. § 669 and § 371. The other
seven defendants are charged in Count II with the same
conspiracy as in Count I.
III through XI charge each Defendant with one count of
conversion and misapplication of federal program funds in
violation of 18 U.S.C. § 666(a)(1)(A). Webster-Valentino
and Freemont are additionally charged with aiding and
abetting the misapplication and conversion for each other
Defendant as described in Counts V through XI.
XII through XX charge each Defendant with one count of
misapplication of funds of a healthcare benefit program in
violation of 18 U.S.C. § 669. Webster-Valentino and
Freemont are additionally charged with aiding and abetting
the misapplication and conversion of the healthcare funds for
each other Defendant as described in Counts XIV through XX.
Federal Rule of Criminal Procedure 8(b), an
indictment may charge two 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). “There is a preference in the federal system for
joint trials of defendants who are indicted together.”
Zafiro v. United States, 506 U.S. 534, 537 (1993).
The Eighth Circuit Court of Appeals recognizes that
“'persons charged with conspiracy should generally
be tried together.'” United States v.
Henley, 766 F.3d 893, 915 (8th Cir.
2014)(quoting United States v. Kindle, 925
F.2d 272, 277 (8th Cir. 1991). “There is a strong
presumption for a joint trial since it ‘gives the jury
the best perspective on all of the evidence and therefore
increases the likelihood of a just outcome.'”
Id.(quoting United States v. Lewis, 557
F.3d 601, 609 (8th Cir. 2009)). Nevertheless, Fed. R.
Crim. P. 14(a) provides that “[i]f the joinder of
offenses or defendants in an indictment . . . appears to
prejudice a defendant or the government, the court may order
separate trials of counts, sever the defendants' trials,
or provide any other relief that justice requires.”
Fed. R. Crim. P. 14(a). “[W]hen defendants
properly have been joined under Rule 8(b), a district court
should grant a severance under Rule 14 only if there is a
serious risk that a 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. The
defendant seeking severance carries a heavy burden and
“must show ‘real prejudice, ' that is,
‘something more than the mere fact that he would have
had a better chance for acquittal had he been tried
separately.” United States v. Mickelson, 378
F.3d 810, 817 (8th Cir. 2004)) (quoting United States v.
Oakie, 12 F.3d 1436, 1441 (8th Cir. 1993)).
defendant does not challenge joinder under Fed. R. Crim. P.
8(b), but instead argues that a joint trial would be
prejudicial under Fed. R. Crim. P. 14, specifically due to
the inability to confront or cross-examine any non-testifying
co-defendant against whom a statement is offered which also
implicates him or her. In Bruton v. United States,
391 U.S. 123 (1968), the United States Supreme Court held
that a co-defendant's statement that facially
incriminates a defendant violates the Confrontation Clause
despite cautionary instructions. However, Bruton is
inapplicable where a co-defendant's statement does not
incriminate the defendant either on its face or “when
linked with evidence introduced later at trial.”
United States v. Gayekpar, 678 F.3d 629, 637 (8th
Cir. 2012) (citing Richardson v. Marsh, 481 U.S.
200, 208 (1987)). Thus, “[w]here a defendant's
redacted confession does not refer directly to the
codefendant himself, and becomes incriminating only in
combination with other evidence, the Constitution permits the
normal presumption that a jury will follow an instruction to
disregard the confession when considering a verdict for the
codefendant.” Gayekpar, 678 F.3d at 637.
government has agreed to a severance of the case into two
separate trials. The first trial would include the seven
defendants who were members of the Omaha Tribal Council:
Sheridan, Morris, Morris, Jr., F. Aldrich, Parker, T.
Aldrich, and Miller. The second trial would include
Webster-Valentino and Freemont. The government proposes that
this severance, but continued count grouping, takes into
consideration the separate conspiracy counts in the
Indictment, as Webster-Valentino and Freemont are charged in
Count I with one conspiracy, while the remaining seven
defendants are charged in Count II with a separate
conspiracy. The government asserts that this severance
“will also serve to eliminate Bruton concerns
with respect to a substantial amount of evidence while still
maintaining a degree of judicial economy by having only a
minimal number of trials concerning this matter.”
(Government's Supplemental Brief at pp. 1-2). The
government also provided a proposed cautionary jury
compliance with the Court's text order dated November 21,
2017, the government provided the Court and defense counsel
with all potential statements the government may offer at
trial, with proposed redactions. In so doing, the government
cited Supreme Court of the United States and Eighth Circuit
Court of Appeals precedent, as well as to decisions from
other circuits, in support of its redaction proposal.
Essentially, the government points out that prejudice occurs
only if a defendant's statement(s) directly accuses
another co-defendant, Bruton, 391 U.S. at 123, and
that redaction is an otherwise acceptable solution if
additional evidence is needed to link the a co-defendant to
the incriminating statement(s), and with a limiting
instruction if there is no reference to his or her existence,
Richardson, 481 U.S. at 208. Furthermore,
substitution of pronouns may be appropriate. See Gray v.
Maryland, 523 U.S. 185, 197 (1998). Hence, the Court
must determine whether the statement(s) are (a) facially
incriminatory, or (b) lead directly to a specific
co-defendant. See United States v. Edwards, 159 F.3d
1117, 1125 (8th Cir. 1998). If so, redaction may be an
appropriate alternative to severance unless the redacted
statements implicate a co-defendant without the necessity of
other evidence. See United States v. Valdez, 146
F.3d 547, 552 (8th Cir. 1998). In other words, do the
statement(s), when viewed in isolation, implicate another
defendant? See United States v. Logan, 210 F.3d 820,
822 (8th Cir. 2000). Given this backdrop, the Court must
determine whether the proffered statements, as redacted,
reference actual names or implicate another co-defendant
without further evidence. The proffered redacted statements
must appear natural in order to avoid the concern that a jury
will understand that redaction has obviously taken place. See
United States v. Williams, 429 F.3d 767, 774 (8th
Court concludes that the government's proposed severance
of this case into two trials, combined with the redacted
statements and limiting instruction, are sufficient to avoid
prejudice against each of the defendants, with some
revisions: (1) no statement shall refer to a person's
specific title, e.g., Miller would not be referred to as
“Treasurer;” (2) no statement shall use a pronoun
which would lead to only one potential person, e.g., using
“she” or “her” to refer to T.
Aldrich; and (3) the ...