United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE.
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.
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
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.
Federal Rule of Criminal Procedure 8
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).
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).
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
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
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 ...