The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge
ORDER DENYING DEFENDANT'S SECOND MOTION FOR SEVERANCE
Defendant Ben Stockman moved this court to sever the three charges against him from those against his two co-defendants, and to sever the trial of the three charges he is facing in the indictment from the trial(s) of his two co-defendants. See Docket No. 144. The government resists the motion. See Docket No. 158. This motion was referred for decision to this magistrate judge by the Chief District Court Judge, the Honorable Karen E. Schreier pursuant to 28 U.S.C. § 636(b)(1)(A). See Docket No. 164.
Mr. Stockman is charged in a second superseding indictment filed with the court on November 18, 2009, with the crimes of conspiracy to distribute cocaine (Count I), possession of cocaine with the intent to distribute (Count II), and distribution of cocaine (Count III).*fn1 See Docket No. 135. The cocaine conspiracy count is alleged to have been joined in by Mr. Stockman and his two co-defendants, Joe Bradley and Lindsey Potratz, a/k/a Nate Tchida, as well as other unnamed co-conspirators. The conspiracy is alleged to have taken place in the District of South Dakota and elsewhere. Docket No. 135.
The time frames alleged in the indictment for the conspiracy count are from no later than October, 2005, through the date of the indictment. The distribution count, as well as the possession with intent to distribute count, are alleged to have taken place in August, 2008, in Rapid City, South Dakota. Mr. Stockman thereafter filed this motion for severance, seeking severance of Count I from Counts II and III, and seeking a separate trial from that of his co-defendants Joe Bradley and Lindsey Potratz.*fn2 See Docket No. 144. The government filed a written response in resistance to Mr. Stockman's motion. See Docket No. 158.
A. Severance of the Offenses is Not Warranted
Federal Rule of Criminal Procedure 8(a) provides as follows: Joinder of Offenses. The 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.
See Fed. R. Crim. P. 8(a); United States v. Taken Alive, 513 F.3d 899, 902 (8th Cir. 2008) (quoting Fed. R. Crim. P. 8(a)). Rule 8(a) "is broadly construed in favor of joinder to promote the efficient administration of justice." Id. at 902-903 (citing United States v. Little Dog, 398 F.3d 1032, 1037 (8th Cir. 2005); United States v. Rock, 282 F.3d 548, 552 (8th Cir. 2002)).
" ' "Where evidence that a defendant had committed one crime would be probative and thus admissible at the defendant's separate trial for another crime, the defendant does not suffer any additional prejudice if the two crimes are tried together." Taken Alive, 513 F.3d at 903 (quoting United States v. Rodgers, 732 F.2d 625, 630 (8th Cir. 1984) (quoting United States v. Dennis, 625 F.2d 782, 802 (8th Cir. 1980)).
In the Taken Alive case, the defendant was accused of committing one assault on February 9, and a second assault that resulted in the death of the victim on March 9. Id. at 901-02. Both assaults occurred after the defendant and the victims had been drinking alcohol heavily. Id. Both assaults were carried out in similar fashion. Id. On appeal, the Eighth Circuit affirmed the district court's decision to try Taken Alive on both assaults in the same trial. Id. at 902-04. Relying on Fed. R. Evid. 404(b), the court reasoned that "the evidence of one assault would be admissible in the separate trial of the other assault if admitted to prove something other than character." Id. at 903. Thus, even in separate trials, each jury would inevitably know about the other assault. Id. Under such circumstances, there was no prejudice in trying the two charges together. Id.
Here, the court reaches the same conclusion. Mr. Stockman is charged in Counts II with cocaine possession with intent to distribute, and in Count III with distribution of cocaine. Counts II and III are predicate acts for the conspiracy charged in Count I. Thus, a trial of Count I would almost certainly involve introduction of the evidence as to Counts II and III. A separate trial of Count II or III would involve the introduction of Stockman's participation in the conspiracy charged in Count I under Rule 404(b), if not under other theories of ...