United States District Court, D. Nebraska
M. Gerrard Chief United States District Judge
defendant has moved to sever the two charges against him
pursuant to Fed. R. Crim. P. 14(a). Filing 75. That motion
will be denied.
Crim. P. 8(a) provides that an
indictment or information may charge a defendant in separate
counts with 2 or more offenses if the offenses
charged-whether felonies or misdemeanors or both-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.
rule is broadly construed in favor of joinder. United
States v. Reichel, 911 F.3d 910, 915 (8th Cir. 2018).
And there is a strong presumption against severing properly
joined counts. United States v. Robinson, 781 F.3d
453, 461 (8th Cir. 2015).
to Rule 14(a), the Court may order separate trials if the
joinder of offenses appears to prejudice a defendant. See
Robinson, 781 F.3d at 461. But the defendant bears the
burden of proving prejudice. Id. Prejudice may
result from a possibility that the jury might use evidence of
one crime to infer guilt on the other or that the jury might
cumulate the evidence to find guilt on all crimes when it
would not have found guilt if the crimes were considered
separately. United States v. Huggans, 650 F.3d 1210,
1221 (8th Cir. 2011). But a defendant cannot show prejudice
when evidence of the joined offense would be properly
admissible in a separate trial for the other crime.
Robinson, 781 F.3d at 461; see United
States v. Thompson, 690 F.3d 977, 990 (8th Cir. 2012);
Huggans, 650 F.3d at 1221.
the defendant is charged in the operative indictment with one
count of possessing a firearm and ammunition on or about
October 17, 2017, and one count of possessing a different
firearm on or about October 2, 2018. Filing 56. The defendant
merely argues that the counts are based on different acts or
transactions and that "given that the counts are from
incidents a year apart from one another the Court should also
find that the counts are not connected nor are they part of a
common scheme or plan." Filing 75 at 2.
applying the "same or similar character" standard,
joinder of offenses is proper when the two counts refer to
the same type of offenses occurring over a relatively short
period of time, and the evidence as to each count overlaps.
United States v. Garrett, 648 F.3d 618, 625 (8th
Cir. 2011). The Eighth Circuit's decision in
Garrett is highly instructive:
Here, both of [the defendant's] counts were for the same
crime: being a felon in possession of a firearm. The
offenses, occurring approximately fifteen months apart, took
place over a relatively short period of time. Finally, the
evidence as to each count overlapped as the offenses were
predicated on the same felony, and evidence of each offense
would have been admissible under Fed.R.Evid. 404(b) to prove
the other in separate trials. Therefore, we conclude that the
two counts were properly joined under [Rule] 8(a).
Garrett, 648 F.3d at 625 (citations omitted). The
Court of Appeals further rejected the defendant's
argument that the defendant was prejudiced by joinder of the
offenses for trial, because "evidence that [the
defendant] unlawfully possessed a firearm on one occasion was
admissible to prove he knowingly possessed a firearm on
another occasion." Id. at 626.
same is true in this case: the offenses took place only a
year apart and are predicated on the same felony convictions.
Moreover, the government's presentation of the facts
relating to the two offenses is intertwined because the
events giving rise to the second charge occurred while the
defendant was being arrested for the first. And evidence of
each offense would be relevant to show the defendant's
knowledge and intent in committing the other. The offenses
are plainly of the same or similar character, and it is just
as evident that the defendant has shown no prejudice from
defendant's request for oral argument is denied.
See United States v. Hardison, 859 F.3d
585, 589 (8th Cir. 2017).
ORDERED that the motion to sever ...