United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, Chief District Judge.
On July 8, 2014, defendants Wesley Running Shield ("Wesley" or "Mr. Running Shield") and Michael Alford ("Michael" or "Mr. Alford") were charged in a three-count indictment. (CR. 14-50058, Docket 1). The offenses charged were: count 1, robbery; count 2, assault with a dangerous weapon; and count 3, assault resulting in serious bodily injury, all alleged to have occurred on June 12, 2014. Id . The indictment identified Johnse Donovan as the alleged victim in all three counts. Id.
On July 8, 2014, defendants Running Shield and Alford were also charged in a second, three-count indictment. (CR. 14-50059, Docket 1). The offenses charged in this second indictment were: count 1, robbery; count 2, assault with a dangerous weapon; and count 3, abusive sexual contact, all alleged to have occurred on June 10, 2014. Id . This indictment identified Arviso Alston and Misty Garnier as the alleged victims in count 1, Mr. Alston as the alleged victim in count 2, and Ms. Garnier as the alleged victim in count 3. Id.
On October 7, 2014, the government filed motions for joinder in both cases. (CR. 14-50058, Docket 30; CR. 14-50059, Docket 57). The government also filed notices of intent to present Rule 404(b) evidence is both cases. (CR. 14-50058, Docket 28; CR. 14-50059, Docket 52). Defendants filed a joint brief opposing the government's motion for joinder and admission of Rule 404(b) evidence. (CR. 14-50058, Docket 48; CR. 14-50059, Docket 79). Because the government's motions and notices of intent to use Rule 404(b) evidence are nearly identical in both cases, all references will be to CR. 14-50058 unless otherwise indicated.
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 motions for joinder, the government's case summaries go beyond the factual allegations of the indictments. While the defendants have not acknowledged the accuracy of the government's summary of the facts in both cases, they do not argue the summaries would be inappropriate for the court's consideration in addressing either the motion for joinder or use of Rule 404(b) evidence. For purposes of this order, the court will consider the following summary of the alleged offense conduct.
On June 10, 2014, Ms. Garnier and Mr. Alston were at Lesley Running Shield's ("Lesley") home in the Northridge Housing Community in Pine Ridge, South Dakota, visiting Tiffany Garnier. After departing, Mr. Alston realized he forgot his smart phone at Lesley's home. Mr. Alston and Ms. Garnier returned to retrieve the phone. While at Lesley's home the second time, Wesley demanded Mr. Alston give Wesley the phone. When Mr. Alston refused, Wesley and Michael began to beat Mr. Alston. While Mr. Alston was on the ground, Wesley and Michael repeatedly kicked him while wearing shoes. Wesley and Michael then took the phone from Mr. Alston.
During the assault on Mr. Alston, Ms. Garnier remained in his pickup. Following the assault on Mr. Alston, Wesley opened the pickup door and climbed in next to Ms. Garnier. Michael did likewise through the other door. Michael began strangling Ms. Garnier and Wesley groped Ms. Garnier on the outside of her clothing. Michael and Wesley then left the area.
On June 12, 2014, Johnse Donovan was drinking in the living room of Jessica Maldonado's home in the old Indian Health Services trailer court in Pine Ridge, South Dakota. Michael and Wesley came from a back room of the trailer, grabbed Mr. Donovan, threatened him and demanded money. Mr. Donovan told them he had no money. Michael and Wesley took Mr. Donovan to the ground and began beating him. Wesley struck him several times with a metal bar and broke Mr. Donovan's leg. Wesley and Michael then forced Mr. Donovan to go to his own home to get money.
At Mr. Donovan's home, he indicated there was money out in a shed. At the shed, Mr. Donovan grabbed a glass jar and struck Michael in the face. Michael and Wesley assaulted Mr. Donovan and while they had him on the ground kicked him multiple times. Michael and Wesley then fled the scene in a car Mr. Donovan borrowed from a friend. Mr. Donovan suffered a severe laceration to the top of his head, a broken leg and broken arm.
Federal Rule of Criminal Procedure 8 is the beginning point for the analysis of the government's motions ...