United States District Court, D. Nebraska
MICHAEL D. NELSON UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on Defendant Jordan
Derockbraine's Motion to Sever (Filing No. 57)
and Motion for Reconsideration (Filing No. 59). The
government did not file any brief in response to the motions
by the deadline of January 22, 2019, and therefore the
motions are now fully submitted. For the following reasons,
Defendant's motions will be denied.
and his co-defendant, Jesus Pinela-Castillo, are charged in
the Indictment with one count of conspiracy to distribute and
possess with intent to distribute a mixture or substance
containing methamphetamine. (Filing No. 1).
Defendant argues that his trial should be severed from that
of Pinela-Catillo's trial to avoid prejudice. (Filing
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,
based on the same act or transaction, or are parts of a
common scheme or plan.” United States v.
Steele, 550 F.3d 693, 702 (8th Cir. 2008). Rule 8(b)
allows the government to charge two or more defendants in an
indictment if the defendants “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). 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).
“Rarely, if ever, will it be improper for
co-conspirators to be tried together.” United
States v. Drew, 894 F.2d 965, 968 (8th Cir. 1990).
is determined that joinder is appropriate under Rule 8, Rule
14 of the Federal Rules of Criminal Procedure 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. However, severance is
only required when the prejudice caused by a joint trial is
“severe or compelling.” United States v.
Ruiz, 412 F.3d 871, 886 (8th Cir. 2005). A defendant
seeking severance must show that “real prejudice”
would result from a joint trial. United States v.
Davis, 534 F.3d 903, 916 (8th Cir. 2008). To make this
showing, the defendant must establish that “(a) his
defense is irreconcilable with that of his co-defendant or
(b) the jury will be unable to compartmentalize the evidence
as it relates to the separate defendants.” Id.
at 916-17 (quotation omitted).
does not argue that joinder of both defendants in the single
indictment is improper under Rule 8(b), as they are charged
as co-conspirators and the offenses are based on the same
series of acts or transactions constituting an offense.
Instead, Defendant argues that he would be prejudiced by a
joint trial due to the “overwhelming difference in the
evidence against the two defendants.” (Filing No.
58 at page 2). The Eighth Circuit has found that a
properly joined co-defendant was “not entitled to
severance simply because the evidence against him was less
damaging than was the evidence against [his
co-defendant].” United States v. Lewis, 557
F.3d 601, 610-11 (8th Cir. 2009). In doing so, the Eighth
Circuit rejected the defendant's argument that the jury
was unable to compartmentalize the evidence because there was
more evidence of one defendant's guilt when compared to
the co-defendant. See id.; see also United
States v. Hively, 437 F.3d 752, 765 (8th Cir.
2006)(“Severance is never warranted simply because the
evidence against one defendant is more damaging than that
against another, even if the likelihood of the latter's
acquittal is thereby decreased.”). When assessing the
jury's ability to compartmentalize the evidence against
joint defendants, the court should take into consideration
the complexity of the case and whether adequate jury
instructions and admonitions can cure any potential
prejudice. See Lewis, 557 F.3d at 610.
case, Defendant has failed to meet his burden to show a joint
trial would be prejudicial. Defendant merely states, without
support, that the jury will be unable to compartmentalize the
evidence. Even assuming there is more evidence against his
co-defendant than against Defendant, “Disparity in the
weight of the evidence as between . . . parties does not
entitle one to severance.” United States v.
Pecina, 956 F.2d 186, 188 (8th Cir. 1992). Moreover,
this is not a particularly complex case. This is a single
count Indictment for conspiracy to distribute a controlled
substance, and Defendant offers no evidence that any
potential prejudice resulting from a joint trial could not be
cured by proper limiting instructions. See United States
v. Faul, 748 F.2d 1204, 1217 (8th Cir. 1984)(concluding
severance is only necessary “where the proof is such
that a jury could not be expected to compartmentalize the
evidence as it relates to separate defendants.”). Under
the circumstances, Defendant's motion to sever is denied.
undersigned magistrate judge previously denied
Defendant's motion to change venue from Omaha to North
Platte in an order dated June 1, 2018. (Filing No.
33). Defendant did not object to that order. Defendant
has now filed the instant motion to reconsider raising the
same arguments regarding inconvenience to himself, counsel,
and witnesses. (Filing No. 28; Filing No.
29; Filing No. 60). Defendant now adds an
additional argument that he will be deprived of his right to
a jury of his peers if the trial is not transferred to North
Platte. Defendant argues that, as half Lakota Sioux, a jury
pool in western Nebraska will likely contain more of his
peers than those drawn in Omaha. (Filing No. 60).
Eighth Circuit has not set forth the appropriate standard for
“motions for reconsideration raised in criminal cases
outside of the suppression context, ” but recognizes
that other Circuits use the civil standard. United States
v. Luger, 837 F.3d 870, 875 (8th Cir. 2016)(citations
omitted). Generally, a civil motion to reconsider is used to
“‘correct manifest errors of law or fact or . .
. present newly discovered evidence.'” Id.
(quoting Bradley Timberland Res. v. Bradley Lumber
Co., 712 F.3d 401, 407 (8th Cir. 2013).
Defendant has presented no new evidence or demonstrated any
manifest error requiring the court to reconsider its denial
of Defendant's motion to change venue. Defendant's
argument regarding the jury pool could have been raised in
his initial motion. However, even assuming Defendant had
raised his argument in his initial motion, the factors set
forth in Fed. R. Crim. P. 18 still weigh in favor of
keeping trial in Omaha rather than North Platte, for the
reasons stated in the Court's previous order. See
Filing No. 33. Accordingly, ...