United States District Court, D. South Dakota, Central Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR
MISJOINDER OR SEVERANCE
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE
superseding indictment charged Defendant Tyrone Steven
Andrews with aggravated sexual abuse (Count I), abusive
sexual contact (Count II), and abusive sexual contact of a
minor (Count III). Doc. 33. Count I alleges that Andrews used
force to cause Selena Chief Eagle to engage in a sexual act
on or between May 23, 2015 and June 7, 2015, in Okreek, South
Dakota. Doc. 33. Count II alleges that Andrews engaged in
sexual contact with E.Z. when she was incapable of declining
participation in the contact on or between February 22, 2013
and February 25, 2013, in Rosebud, South Dakota. Doc. 33.
Count III alleges that Andrews engaged in sexual contact with
E.Z. when she was at least twelve but not yet sixteen years
of age on the same dates and in the same place alleged in
Count II. Doc. 33. Andrews moved for an order of misjoinder
under Federal Rule of Criminal Procedure 8(a) or,
alternatively, severance of Count I from Counts II and III
under Federal Rule of Criminal Procedure 14(a). Doc. 56.
Andrews also seeks a ruling that the evidence concerning
Count I is inadmissible at a separate trial on Counts II and
III, and vice versa. Doc. 56. For the reasons explained
below, Andrews's motion is denied.
Joinder under Rule 8(a)
8(a) provides that a single indictment may charge a defendant
in separate counts with multiple offenses if the offenses
"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). Rule 8(a) is broadly construed in favor of
joinder to promote judicial efficiency. United States v.
McCarther. 596 F.3d 438, 441-2 (8th Cir. 2010); see
also United States V. Two Hearts. No. CR 12-30108-RAL,
2013 WL 175780, at *1 (D.S.D. Jan. 16, 2013). This Court
previously held that Eighth Circuit precedent required that
the propriety of joinder of defendants under Rule 8(b) be
determined by the face of the indictment alone. United
States v. Condon. No. 3:14-CR-30083-01-02-RAL, 2014 WL
6694782, at *4-5 (D.S.D. Nov. 26, 2014). Other judges within
the Eighth Circuit have concluded that the same precedent
this Court relied on in Condon restricts courts to
the allegations in the indictment when considering whether
offenses are properly joined under Rule 8(a). United
States v. Recker. No. 12-CR-2027-LRR, 2013 WL 785643, at
*3 (N.D. Iowa Mar. 1, 2013); United States v.
Robinson. 903 F.Supp.2d 766, 794 (E.D. Mo. 2012);
United States v. Delgado. No. CR 11-30162-RAL, 2012
WL 1493756, at *1 (D.S.D. Apr. 26, 2012) (Moreno, J.);
see also lA Charles Alan Wright et al., Federal
Practice and Procedure § 143 (4th ed.) ("As
with joinder of defendants, the propriety of joining offenses
in a single instrument is typically determined by examining
the allegations in the indictment.").
argues that joinder is improper in this case because all of
the counts are not "of the same or similar
character." Offenses are of the "same or similar
character" when "the two counts refer to the same
type of offenses occurring over a relatively short period of
time, and the evidence to each count overlaps."
United States v. Rodgers. 732 F.2d 625, 629 (8th
Cir. 1984) (quoting United States v. Shearer. 606
F.2d 819, 820 (8th Cir. 1979)). "Similar character"
means "[n] early corresponding; resembling in many
respects; somewhat alike; having a general likeness."
United States v. Tyndall. 263 F.3d 848, 850 (8th
Cir. 2001) (alteration in original) (quoting United
States v. Lindsev. 782 F.2d 116, 117 (8th Cir. 1986)
of the superseding indictment is properly joined with Counts
II and III. To begin with, all three counts concern
allegations that Andrews engaged in nonconsensual sexual
conduct with postpubescent females for the purpose of
gratifying his own sexual desire. Doc. 33. Although Andrews
argues that there are several differences between Count I and
Counts II and III, the three counts share enough in common to
be considered of "similar character" under Rule
8(a). See Tyndall, 263 F.3d at 850 (upholding
joinder of attempted aggravated sexual abuse of
thirteen-year-old girl that occurred in a car and involved
the use of a knife with attempted aggravated sexual abuse of
a sixty-seven-year-old woman that occurred in a house and
involved defendant grabbing the woman's arm because both
offenses were "impulsive crimes of opportunity where it
was alleged that [defendant] had managed to isolate his
intended victims"); United States v. Bruguier.
No. 11-40012-01-KES, 2011 WL 1833008, at *1 (D.S.D. May 13,
2011) (finding that joinder was proper in multiple-victim
case involving charges of aggravated sexual abuse of an
adult, incest, and sexual abuse of a minor).
the evidence of all three counts seemingly overlaps because
Rule 413 of the Federal Rules of Evidence makes evidence that
a defendant committed a similar sexual assault admissible in
a sexual assault prosecution such as this one. Rule 413
allows the jury to consider other sexual assault evidence
"on any matter to which it is relevant, "
Fed.R.Evid. 413(a), including the defendant's propensity
to commit sexual assault, United States v. Holy
Bull, 613 F.3d 871, 873 (8th Cir. 2010); see also
United States v. Crow Eagle, 705 F.3d 325, 327 (8th Cir.
2013) (per curiam) (explaining that the purpose of evidence
admitted under Rule 413 "is to show the defendant's
propensity to commit a similar act of sexual assault").
Evidence offered under Rule 413 is subject to Rule 403, but
courts must conduct the Rule 403 balancing test in a manner
that allows Rule 413 to have its "intended effect."
United States v. Withom, 204 F.3d 790, 794 (8th Cir.
2000) (quoting United States v. Mound. 149 F.3d 799,
800 (8th Cir. 1998)). Without hearing any evidence concerning
Counts I through III, this Court is unable to make a
definitive ruling under Rule 413. However, given the
above-mentioned similarities between all counts, as well as
the "strong legislative judgment" that evidence of
other sexual assaults "should ordinarily be admissible,
" United States v. LeCompte. 131 F.3d 767, 769
(8th Cir. 1997), evidence concerning Count I probably would
be admissible in a trial on Counts II and III (and vice
the twenty-seven month time period between the alleged sexual
abuse of E.Z. in February 2013 and the alleged sexual abuse
of Chief Eagle in May or June of 2015 is not so great that
joinder is improper. The time period between offenses is
considered not in isolation but in relation to the similarity
of offenses and the possibility of evidentiary overlap.
Rodgers, 732 F.2d at 629-30. Because Counts I, II,
and III are of similar character and evidence of each offense
will likely be admissible to prove the other offenses, the
twenty-seven months between Count I and Counts II and III is
short enough to justify joinder. See United States v.
Davila, No. 12-3579, 2013 U.S. App. Lexis 13476, at *7-9
(8th Cir. May 17, 2013) (unpublished per curiam opinion)
(upholding joinder of offenses occurring nearly nine years
apart where offenses were of the same character and the
evidence of each offense would be admissible in a trial on
the other); Bruguier, 2011 WL 1833008, at *2
(holding that charge for sexual abuse of a minor could be
joined with sex offenses occurring five years later because
all charges were similar and evidentiary overlap was likely).
Severance under Rule 14(a)
argues that joinder of all the offenses is prejudicial under
Rule 14(a) and that Count I should therefore be severed from
Counts II and III. Rule 14(a) allows courts to sever counts
joined in the same indictment if joinder of the counts
appears to prejudice the defendant. Fed. R. Crim. P. 14(a).
As the Eighth Circuit has repeatedly recognized, however,
"[n]o prejudice results from the reflisal to sever when
evidence of one charge would be admissible in a separate
trial on the other." McCarther. 596 F.3d at
442; see also United States v. Steele. 550 F.3d 693,
702 (8th Cir. 2008). Because the evidence concerning Count I
would likely be admissible at a separate trial on Counts II
and III, Andrews cannot show the requisite prejudice under
reasons explained above, it is hereby
that Andrews Motion for Ruling of Misjoinder or ...