United States District Court, D. South Dakota, Central Division
OPINION AND ORDER GRANTING MOTIONS TO SEVER
ROBERTO A. LANG, District Judge.
The Government indicted Defendants Eugene Condon and Robert McLane together on charges of possession and sale of a stolen firearm. Doc. 46. Both Condon and McLane filed motions to sever, which this Court now grants.
I. Indictment and Facts Surrounding Indictment
The charge against Eugene Condon, contained in Count I of the superseding indictment, alleges that, on or about October 9, 2013, at Eagle Butte, Condon knowingly and unlawfully received, possessed, sold and disposed of a stolen firearm that had been shipped and transported in interstate commerce in violation of 18 U.S.C. §§ 922(j) and 924(a)(2). The stolen firearm that Condon allegedly possessed and sold was a Remington Model 7400 30-06 caliber rifle. Doc. 46.
The charge against Robert McLane, contained in Count II of the superseding indictment, alleges that, on or about between October 9 and October 18, 2013, at Eagle Butte and elsewhere, McLane knowingly and unlawfully received, possessed, sold and disposed of two stolen firearms that had been shipped and transported in interstate commerce. The firearms that McLane allegedly possessed and sold were a Benelli.270 caliber rifle and a Beretta 12-gauge shotgun. McLane likewise is alleged to have violated 18 U.S.C. §§ 922(j) and 924(a)(2). Doc. 46. The superseding indictment does not charge either Condon or McLane with conspiracy or aiding and abetting one another and does not suggest how the alleged crimes are connected, other than occurring in the same town during the same time frame.
Condon filed a motion for severance of trial, Doc. 56, on October 29, 2014, together with a support memorandum, Doc. 57. On November 3, 2014, McLane filed a nearly identical motion for severance of trial, Doc. 59, with a substantially similar memorandum in support thereof, Doc. 60. Condon provided additional facts, explaining that he is alleged to have been involved in brokering the sale of a firearm from some juveniles to an individual named Jerry Taylor, and that he had nothing to do with McLane. Condon asserts that the "sole nexus between these two individuals [McLane and Condon] is that they dealt with the same juveniles in the juveniles' attempts to liquidate these firearms." Doc. 57 at 2. McLane's memorandum contains the same language quoted above. Doc. 60 at 2.
The Government responded in opposition to the motions for severance of trial. Doc. 61. The Government's response proffered additional facts that the Government intends to prove. According to the Government, on October 9, 2013, three juveniles-A.M., S.D., and N.B.- broke into the Eagle Butte home of Larry Keller and stole four firearms from his residence. Doc. 61 at 1. The three juveniles allegedly enlisted the help of a fourth juvenile-R.B.-and Condon to sell the 30-06 caliber rifle to Jerry Taylor. Doc. 61 at 1. McLane allegedly possessed and attempted to sell some of the remaining firearms for the juveniles. Thus, the Government has the same witnesses-the robbery victim Larry Keller and the juveniles A.M., S.D., and N.B.- against Condon and McLane, although presumably Jerry Taylor and other witnesses might testify strictly about Condon or McLane. There appears to be no evidence that Condon and McLane aided and abetted each other in their alleged handling of the various firearms.
A. Rule 8(b) Issue
Rule 8 of the Federal Rules of Criminal Procedure governs joinder of offenses or defendants. Condon and McLane are each charged with a separate count of possession and sale of a stolen firearm and seek to sever the two counts for separate and individual trials of each Defendant. Thus, Rule 8(b) concerning joinder of defendants controls. Rule 8(b) states:
The indictment or information 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 defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count.
Fed. R. Crim. P. 8(b).
The Supreme Court of the United States has adopted a broad approach favoring joinder of defendants under Rule 8(b). Zafiro v. United States, 506 U.S. 534 (1993). In Zafiro, the Supreme Court, in upholding a joint trial of defendants, stated:
There is a preference in the federal system for joint trials of defendants who are indicted together. Joint trials "play a vital role in the criminal justice system." Richardson v. Marsh, 481 U.S. 200, 209 (1987). They promote efficiency and "serve the interests of justice by avoiding the scandal and inequity of inconsistent ...