Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Curry

United States District Court, D. South Dakota, Western Division

July 13, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
ARROW LYNN CURRY, Defendant.

          ORDER

          JEFFREY L. VIKEN, CHIEF JUDGE.

         INTRODUCTION

         The government filed a superseding indictment against defendant Arrow Lynn Curry charging one count of use of a firearm during a drug trafficking crime in violation of 18 U.S.C. §§ 924(c)(l)(A)(iii); one count of conspiracy to distribute a controlled substance in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(C); and one count of possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(9). (Docket 21). Mr. Curry pled not guilty to the charges. (Docket 26). Mr. Curry moves the court to sever count 3 from counts 1 and 2 of the superseding indictment and to order separate trials. (Docket 42). The government opposes the motion. (Docket 47). For the reasons set forth below, the court grants Mr. Curry's motion to sever.

         DISCUSSION

         Count 1 of the superseding indictment alleges "[o]n or about January 5, 2015, " Mr. Curry used, carried and discharged a firearm during and in relation to a drug trafficking crime. (Docket 21 at p. 1). Count 2 alleges "[beginning at a time unknown to the Grand Jury, but no later than December of 2014, " Mr. Curry participated in a conspiracy to distribute methamphetamine. Id. at 1-2.

         The indictment does not identify an end date of the alleged conspiracy. Id. Count 3 alleges "[o]n or about June 16, 2015, " Mr. Curry knowingly possessed a .40 caliber rifle after having previously been convicted of a misdemeanor crime of domestic violence. Id. at 2.

         I. Federal Rule of Criminal Procedure 8

         When a defendant moves for severance, the court first must determine whether joinder is proper under Fed. R. Crim. P. 8. United States v. Ruiz, 412 F.3d 871, 886 (8th Cir. 2005). Subsection (a) governs the joinder of offenses and states as follows:

The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged-whether felonies or misdemeanors or both-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).

         "Joinder is proper if any one of these three standards is met." United States v. Kirk, 528 F.3d 1102, 1107 (8th Cir. 2008). " 'In applying the 'same or similar character' standard, [the United States Court of Appeals for the Eighth Circuit] found joinder of offenses to be proper when the two counts refer to the same type of offenses occurring over a relatively short period of time, and the evidence as to each count overlaps.' " United States v. Garrett, 648 F.3d 618, 625 (8th Cir. 2011) (quoting United States v. Robaina, 39 F.3d 858, 861 (8th Cir.1994)). "Rule 8(a) allows joinder not only of crimes of the 'same' character but also those of a 'similar' character, which means '[n]early corresponding; resembling in many respects; somewhat alike; having a general likeness.' " United States v. Tvndall, 263 F.3d 848, 850 (8th Cir. 2001) (quoting United States v. Lindsey, 782 F.2d 116, 117 (8th Cir. 1986) (per curiam) (internal quotation marks and further citations omitted).

         Courts should broadly construe Rule 8 in favor of joinder to promote the important interest of judicial efficiency. United States v. McCarther, 596 F.3d 438, 441-42 (8th Cir. 2010). The Eighth Circuit explained the rationale behind this policy:

Joint trials, on all counts of an indictment, are generally preferable for several reasons. First, separate trials necessarily involve a certain degree of "inconvenience and expense." Second, trying all counts together serves the important function of giving "the jury the best perspective on all of the evidence, " thereby increasing the likelihood that the jury will reach "a correct outcome."

Kirk, 528 F.3d at 1107 (citations omitted). The Eighth Circuit also instructs "[j]oinder must be viewed on a case by case basis, " Haggard v. United States, 369 F.2d 968, 974 (8th Cir. 1966), and the "indictment must reveal on its face a proper basis for joinder." United States v. Wadena, 152 F.3d 831, 848 (8th Cir. 1998) (citing United ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.