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United States v. Blacksmith

United States District Court, D. South Dakota

May 4, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
WESLEY BLACKSMITH, Defendant.

ORDER

JEFFREY L. VIKEN, Chief Distrcit Judge.

PROCEDURAL HISTORY

On January 22, 2014, Wesley Blacksmith was charged in a single-count indictment. (CR. 14-50004, Docket 2). The indictment charged Mr. Blacksmith with aggravated sexual abuse in violation of 18 U.S.C. §§ 1153, 2241(a), 2241(c) and 2246(2). Id. On June 17, 2014, Mr. Blacksmith was charged in a three-count superseding indictment. (CR. 14-50004, Docket 40). The offenses charged in the indictment were: count 1, aggravated sexual abuse in violation of 18 U.S.C. §§ 1153, 2241(c) and 2246(2); count 2, aggravated sexual abuse in violation of 18 U.S.C. §§ 1153, 2241(a) and 2246(2); and count 3, sexual abuse of a minor in violation of 18 U.S.C. §§ 1153, 2243(a) and 2246(2). Id.

On June 17, 2014, Mr. Blacksmith was charged in a second single-count indictment in a separate case. (CR. 14-50053, Docket 2). The indictment charged Mr. Blacksmith with failure to register as a sex offender in violation of 18 U.S.C. § 2250(a) and 42 U.S.C. § 16913. Id.

The government subsequently filed motions for joinder in both cases. (CR. 14-50004, Docket 56; CR. 14-50053, Docket 16). Previously, the government filed a notice of intent to present evidence under Fed.R.Evid. 414. (CR. 14-50004, Docket 26). The government indicates it will seek to offer the same evidence in Mr. Blacksmith's failure to register as a sex offender case. (CR. 14-50053, Docket 17 at p. 3). Mr. Blacksmith filed briefs opposing the government's motion for joinder under both Fed. R. Crim. P. 8(a) and 14. (CR. 14-50004, Docket 59; CR. 14-50053, Docket 18). In Mr. Blacksmith's case charging him with aggravated sexual abuse and sexual abuse of a minor (CR. 14-50004), he noticed his intent to raise an alibi defense. (CR. 14-50004, Docket 31).

On January 27, 2015, the court appointed Dana Hanna as Mr. Blacksmith's new attorney in both CR. 14-50004 and CR. 14-50053. On the same day, this court granted a continuance in Mr. Blacksmith's failure to register as a sex offender case, and his trial is scheduled for June 9, 2015. (CR. 14-50053, Docket 22). On February 12, 2015, the court granted Mr. Blacksmith's motion for a continuance in his aggravated sexual abuse and sexual abuse of a minor case, and his trial is scheduled for June 9, 2015. (CR. 14-50004, Docket 69).

FACTUAL SUMMARY

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 defendant did not acknowledge the accuracy of the government's summary of the facts in either case, he also did not object to the summaries and did not argue the summaries would be inappropriate for the court's consideration in addressing the government's motions for joinder or its use of evidence pursuant to Fed.R.Evid. 414. For purposes of adjudicating the motions only, the court adopts and incorporates the government's statement of the background of the cases.

On January 22, 2014, Mr. Blacksmith was charged by indictment in CR. 14-50004 with one count of aggravated sexual abuse of the alleged victim, C.L., [1] who had attained the age of 12 but not the age of 16 years and who was at least four years younger than Mr. Blacksmith. (CR. 14-50004, Docket 2). On March 21, 2014, Magistrate Judge Duffy placed Mr. Blacksmith on pretrial release. (CR. 14-50004, Docket 25). Around May 16, 2014, Mr. Blacksmith absconded from pretrial release. (CR. 14-50004, Docket 36-2). On June 17, 2014, a superseding indictment was filed charging Mr. Blacksmith with two counts of aggravated sexual abuse and one count of sexual abuse of a minor. (CR. 14-50004, Docket 40). C.L. was the alleged victim in all three counts of the superseding indictment. Id. Also on June 17, 2014, as a result of absconding while on pretrial release, Mr. Blacksmith was charged by indictment with failing to register as a sex offender.[2] (CR. 14-50053, Dockets 2 & 17 at p. 2); see also CR. 14-50004, Docket 57 at p. 2.

Because the government's joinder motions are nearly identical in both cases and because the government filed its motion to present Rule 414 evidence in case CR. 14-50004, all further references are to the court's docket CR. 14-50004 unless indicated otherwise.

ANALYSIS

Federal Rule of Criminal Procedure 8 is the beginning point for the analysis of the government's motions for joinder. 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 ...

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