United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
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
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).
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.”).
Federal Rule of Criminal Procedure 8
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.
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)).
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).
Federal Rule of Criminal Procedure 14
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 ...