United States District Court, District of South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE.
On October 21, 2014, defendant Casey Godfrey was charged by superseding indictment in CR. 14-50005. (CR. 14-50005, Docket 44). The three counts of the superseding indictment charge: count 1, attempted enticement of a minor using the internet; count 2, attempted transfer of obscene material to a minor; and count 3, receipt of child pornography. Id.
On October 21, 2014, Mr. Godfrey was charged by indictment in CR. 14-50099. (CR. 14-50099, Docket 2). The two counts of the indictment charge: count 1, enticement of a minor using the internet; and count 2, receipt of child pornography.
On December 3, 2014, the government filed motions for joinder of the cases and notices pursuant to Fed.R.Evid. 404(b) in both cases. (CR. 14-50005, Dockets 57 & 58; CR. 14-50099, Dockets 11 & 12). On December 8, 2014, Mr. Godfrey filed responses in opposition to the joinder motions and the Rule 404(b) notices. (CR. 14-50005, Dockets 62 & 63; 14-50099, Dockets 14 & 15). Because the pleadings of the parties are nearly identical in both cases, the court will focus on the factual summary and arguments of counsel in CR. 14-50005 unless otherwise indicated.
SUMMARY OF FACTS
Resolution of a motion for joinder must be determined from the factual allegations of the indictment and those allegations are to be considered as true. United States v. Massa, 740 F.2d 629, 644 (8th Cir. 1984) (overturned on other grounds). See also United States v. Willis, 940 F.2d 1136, 1138 (8th Cir. 1991) (“the indictment on its face revealed a proper basis for joinder”); United States v. Jones, 880 F.2d 55, 62 (8th Cir. 1989) (“the superseding indictment reveals on its face a proper basis for joinder”).
In the present cases, the government’s case summaries go beyond the factual allegations of the indictments. But, for purposes of consideration of the pending motions and Rule 404(b) notices, Mr. Godfrey “has no objection to the case background and relevant facts” submitted by the government. (Docket 63 at p. 1). With the defendant’s concession, the government’s statement of the case background and relevant facts are adopted and incorporated by reference. See Docket 57 at pp. 2-6.
Federal Rule of Criminal Procedure 8 permits the joinder of charges against a defendant. That rule provides:
(a) Joinder of Offenses. The indictment . . . may charge a defendant in separate counts with 2 or more offenses if the offenses charged . . . 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.
Fed. R. Crim. P. 8(a). Mr. Godfrey “concedes that the counts in files CR. 14-50005 and CR. 14-50099 may lawfully be joined under Federal Rule 8(a) given that the counts contain allegations that are of similar character.” (Docket 63 at p. 1). Mr. Godfrey objects to joinder under Fed. R. Crim. P. 14. Id. at p. 2.
That rule provides:
If the joinder of offenses . . . or a consolidation for trial appears to prejudice a defendant . . . the court may order separate trials of counts . . . or ...