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United States v. Archer

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

July 26, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES HENDERSON ARCHER, Defendant.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE

         INTRODUCTION

         On June 8, 2016, defendant James Archer filed a motion to sever his trial from that of his codefendant Ronald Swallow. (Docket 33). The government resists Mr. Archer’s motion. (Docket 35). Mr. Archer filed a reply brief on June 15, 2016. (Docket 36). At the time Mr. Archer filed his motion to sever, he was charged with one count of aiding and abetting in the interference with commerce by robbery in violation of 18 U.S.C. §§ 1951 & 2. (Docket 2 at p. 4) (count VI). The remaining six counts of the seven-count indictment were against Mr. Swallow only. (Docket 2). On June 21, 2016, a seven-count superseding indictment was filed against Mr. Archer and Mr. Swallow in this case. (Docket 38). Mr. Archer was charged again with aiding and abetting in the interference with commerce by robbery in violation of 18 U.S.C. §§ 1951 & 2 and also with aiding and abetting in the use and brandishing of a firearm during the commission of a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. (Docket 38 at pp. 4-5) (counts VI and VII). Magistrate Judge Daneta Wollmann held an initial appearance, arraignment and detention hearing for Mr. Archer after the filing of the superseding indictment. (Docket 45). The court resolves Mr. Archer’s motion to sever based on the charges contained in the superseding indictment.

         DISCUSSION

         “When a defendant moves for a severance, a district court must first determine whether joinder is proper under Federal Rule of Criminal Procedure 8.” United States v. Darden, 70 F.3d 1507, 1526 (8th Cir. 1995). “If joinder is proper, the court still has discretion to order a severance under Federal Rule of Criminal Procedure 14.” These rules are to be ‘liberally construed in favor of joinder.’ ” Id. (quoting United States v. Rimell, 21 F.3d 281, 288 (8th Cir. 1994)). The United States Court of Appeals for the Eighth Circuit instructs “[j]oinder must be viewed on a case by case basis.” Haggard v. United States, 369 F.2d 968, 974 (8th Cir. 1966).

         “The propriety of joinder is to be determined from the face of the indictment. . . . The factual allegations in the indictment must be accepted as true.” United States v. Massa, 740 F.2d 629, 644 (8th Cir. 1984), (internal citations omitted), overruled on other grounds by United States v. Gardner, 447 F.3d 558, 560-61 (8th Cir. 2006); see also United States v. Wadena, 152 F.3d 831, 848 (8th Cir. 1998) (The “indictment must reveal on its face a proper basis for joinder.”).

         1. Federal Rule of Criminal Procedure 8

         Federal Rule of Criminal Procedure 8 provides:

(b) Joinder of Defendants. The indictment . . . may charge 2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count.

Fed. R. Crim. P. 8.

         “Defendants who are jointly indicted on similar evidence from the same or related events should normally be tried together.” United States v. Doyle, 60 F.3d 396, 398 (8th Cir. 1995) (internal quotation marks, citations and brackets omitted). “Rule 8(b) requires that there be some common activity involving all of the defendants which embraces all the charged offenses even though every defendant need not have participated in or be charged with each offense.” United States v. Bledsoe, 674 F.2d 647, 656 (8th Cir. 1982); see also United States v. Andrade, 788 F.2d 521, 528-29 (8th Cir. 1986); Darden, 70 F.3d at 1527 (8th Cir. 1995) (“It is not necessary that every defendant have participated in or be charged with each offense.”) (internal quotation marks, citations and brackets omitted). “In order to be part of the ‘same series of acts or transactions, ’ [the] acts must be part of one overall scheme about which all joined defendants knew and in which they all participated.” Bledsoe, 674 F.2d at 656 (quoting United States v. McKuin, 434 F.2d 391, 395-96 (8th Cir. 1970)).

         Accepting the allegations in the superseding indictment as true, Mr. Archer and Mr. Swallow were involved in the same series of acts or transactions. The indictment alleges that during the six-week period from approximately August 10, 2015, to September 21, 2015, Mr. Swallow robbed three separate casinos in Rapid City, South Dakota, and he did so by brandishing a firearm and demanding money at gunpoint. (Docket 38). Count VI alleges that on September 21, 2015, Mr. Archer and Mr. Swallow aided and abetted each other in robbing Uncle Sam’s casino at gunpoint. Id. at 4. Count VII alleges Mr. Archer and Mr. Swallow aided and abetted each other in carrying and brandishing a firearm during the commission of a crime of violence. Id. at 4-5. All of the charged offenses occurred during a six-week period and stem from three separate casino robberies perpetuated by the brandishing of a firearm and demanding money at gunpoint. All involved Mr. Swallow. The court finds Mr. Archer and Mr. Swallow are properly joined as codefendants under Fed. R. Crim. P. 8(b).

         2. Federal Rule of Criminal Procedure 14

         “Under Rule 14, a district court may sever a defendant’s trial from the trial of co-defendants if it appears that a defendant . . . is prejudiced by a joinder of offenses or of defendants in an indictment . . . or by such joinder for trial together.” Darden, 70 F.3d at 1527 (internal quotation marks and brackets omitted). “When joinder is proper under Rule 8, the defendant seeking a severance has the burden to demonstrate how the joint trial prejudiced his or her right to a fair trial.” Id. (citations omitted). The preference for joinder may be overcome only if a defendant “can show that the benefits [of ...


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