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. Wisecarver

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

August 9, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
LORI ANN WISECARVER, a/k/a LORI VOCU, and MITCHELL LEE WISECARVER, Defendants.

          Lori Ann Wisecarver, Defendant, represented by Erin Bolinger, Federal Public Defender's Office.

          Mitchell Lee Wisecarver, Defendant, represented by Ellery Grey, Grey and Eisenbraun Law.

          USA, Plaintiff, represented by Sarah Boensch Collins, U.S. Attorney's Office & Eric D. Kelderman, U.S. Attorney's Office.

          ORDER

          JEFFREY L. VIKEN, Chief District Judge.

         INTRODUCTION

         On May 25, 2016, defendant Lori Wisecarver ("Lori") filed a motion to sever her trial from that of her codefendant and husband, Mitch Wisecarver ("Mitch"). (Docket 55). The government filed its response resisting Lori's motion on June 15, 2016. (Docket 71). Lori did not file a reply brief. Lori and Mitch are both charged in all three counts of the indictment pending against them. (Docket 2). Count 1 charges Lori and Mitch with aiding and abetting one another in committing first degree murder in violation of 18 U.S.C. §§ 2, 1111 and 1153. Id. at 1. Count 2 charges Lori and Mitch with aiding and abetting one another in committing felony child abuse-aggravated battery of an infant in violation of 18 U.S.C. §§ 2 and 1153 and SDCL § 22-18-1.4. Id. at 2. Count 3 charges Lori and Mitch with felony child abuse and neglect in violation of 18 U.S.C. §§ 1153 and 3559(f)(3) and SDCL §§ 26-10-1 and 26-8A-2(3) & (6). Id . J.L., a minor, is the alleged victim in all of the counts. Id. at 1-2.

         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.

         Lori does not assert she is improperly joined with Mitch in the indictment under Fed. R. Crim. P. 8, claiming only that joinder is improper under Rule 14(a). (Docket 55). The court agrees. Accepting the allegations in the indictment as true, the court finds Lori and Mitch ...


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.