The opinion of the court was delivered by: Karen E. Schreier Chief Judge
DEFENDANTS' MOTIONS TO SEVER
Defendants, Viengxay Chantharath and Patricio Guzman-Ortiz, separately moved to vacate the court's order granting a continuance and to sever their cases from their co-defendants for trial. Dockets 484, 485, 520. The court denied the motions to vacate the order granting a continuance and reserved ruling on the motions to sever. Dockets 493, 494. The government resists both Guzman-Ortiz's and Chantharath's motions to sever. The motions are denied.
The pertinent facts to this order are as follows: The original indictment in this case, dated January 5, 2010, charged Chantharath and Vang Somsawat with conspiracy to distribute methamphetamine. Docket 1. A second superseding indictment, dated April 7, 2010, added Guzman-Ortiz, Jeffrey Arthur Kriz, Mario Maldonado, and Aurelio Angel Solorio as co-defendants in the same conspiracy. Docket 54.
The third superseding indictment, dated May 4, 2010, added Jason Leach, Daniel Navarrette, and Kevin Boxdorfer as additional co-defendants in the conspiracy. Docket 111. The fourth superseding indictment, dated August 3, 2010, added Bruce Ross as a co-defendant in the conspiracy. Docket 194.
The fifth superseding indictment, dated March 2, 2011, added Rosendo Garcia-Navarro and one person not yet arrested as co-defendants in the conspiracy. Docket 366. The sixth superseding indictment, dated June 7, 2011, added as co-defendants in the same conspiracy Felicia Ann Omara, Michelle Cherie Feiss, Rodney James Newcomb, and two persons who have not had their initial appearances in South Dakota. Docket 408. The seventh superseding indictment, dated September 7, 2011, did not charge any new defendants with conspiracy but did contain a forfeiture allegation against Garcia-Navarro. Docket 98.
Many of the co-defendants charged in this conspiracy have already pleaded guilty and some have already been sentenced. The remaining co-defendants are Chantharath, Guzman-Ortiz, Garcia-Navarro, Newcomb, and the three persons not yet arrested. This case is currently scheduled for a jury trial to begin on Tuesday, October 25, 2011, with co-defendants Chantharath, Guzman-Ortiz, Garcia-Navarro, and Newcomb.
In determining whether a defendant is entitled to a separate trial from his co-defendants, the court must decide (1) whether joinder was proper under Federal Rule of Criminal Procedure 8, and (2) whether severance is proper under Rule 14. See, e.g., United States v. Payton, 636 F.3d 1027, 1036-37 (8th Cir. 2011) (analyzing first whether joinder was proper under Rule 8 and then whether severance was proper under Rule 14); United States v. Wadena, 152 F.3d 831, 848 (8th Cir. 1998) (same); United States v. Andrade, 788 F.2d 521, 529 (8th Cir. 1986) (same).
Federal Rule of Criminal Procedure 8(b) states that an "indictment . .. may 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." The propriety of a Rule 8(b) joinder must appear on the face of the indictment. Wadena, 152 F.3d at 848; Andrade, 788 F.2d at 529. "Generally, the 'same series of acts or transactions' means acts or transactions that are pursuant to a common plan or a common scheme." Wadena, 152 F.3d at 848 (citing United States v. Jones, 880 F.2d 55, 61 (8th Cir. 1989)). There must "be some common activity involving all the defendants which embraces all the charged offenses, but it is not necessary that each defendant have participated in each act or transaction of the series." Andrade, 788 F.2d at 529 (citing United States v. Wofford, 562 F.2d 582, 585 (8th Cir. 1977)). The prerequisites for Rule 8(b) joinder are liberally construed. United States v. Gravatt, 280 F.3d 1189, 1191 (8th Cir. 2002) (citing Jones, 880 F.2d at 62).
" 'In general, persons charged in a conspiracy or jointly indicted on similar evidence from the same or related events should be tried together.' " United States v. Donnell, 596 F.3d 913, 923 (8th Cir. 2010) (quoting Jones, 880 F.2d at 63); see also Andrade, 788 F.2d at 529 (reasoning that "persons charged with having been involved in a single conspiracy should ordinarily be tried together." (citing United States v. Rochon, 575 F.2d 191, 197 (8th Cir. 1978))). Thus, if the indictment charges a conspiracy and alleges the existence of a scheme or links the co-defendants together in a common plan, then joinder is usually appropriate. See, e.g., Donnell, 596 F.3d at 923 ("Thus, the various defendants, all of whom were alleged to be members of the same overarching conspiracy, were properly joined."); United States v. Jenkins-Watts, 574 F.3d 950, 967 (8th Cir. 2009) (finding that joinder of co-defendants in a conspiracy was proper even though some of the defendants did not participate in every stage of the conspiracy).
In the seventh superseding indictment, the grand jury charged that the co-defendants conspired together to distribute 500 grams or more of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846. Docket 498.*fn1 The single count in the seventh superseding indictment charges that the co-defendants "did knowingly and intentionally combine, conspire, confederate, and agree together" to distribute methamphetamine. Docket 498 at 2. Rule 8(b)'s requirement of the "same series of acts or transactions" is met here because, according to the face of the indictment, each co-defendant has been charged with the same, single conspiracy. Thus, joinder is proper under Rule 8(b).
Even if joinder is proper under Rule 8(b), Rule 14 allows the court to sever the joinder if it "appears to prejudice a defendant or the government . . . ." Fed. R. Crim. P. 14(a). " 'Once defendants are properly joined under Rule 8, there is a strong presumption for their joint trial.' " Jenkins-Watts, 574 F.3d at 967 (citing United States v. Crumley, 528 F.3d 1053, 1063 (8th Cir. 2008)).
"A court will permit severance only 'upon a showing of real prejudice to an individual defendant.' " Payton, 636 F.3d at 1037 (quoting United States v. Sandstrom, 594 F.3d 634, 644 (8th Cir. 2010)); see also Wadena, 152 F.3d at 850 (reasoning that the district court retains discretion to determine a motion to sever and is only reversed if the court abuses its discretion and that abuse" 'resulted in severe prejudice.' " (quoting United States v. ...