United States District Court, D. South Dakota, Western Division
Ann Wisecarver, Defendant, represented by Erin Bolinger,
Federal Public Defender's Office.
Mitchell Lee Wisecarver, Defendant, represented by Ellery
Grey, Grey and Eisenbraun Law.
Plaintiff, represented by Sarah Boensch Collins, U.S.
Attorney's Office & Eric D. Kelderman, U.S.
JEFFREY L. VIKEN, Chief District Judge.
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.
Â§Â§ 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. Â§Â§ 2 and 1153 and SDCL Â§ 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. Â§Â§ 1153 and
3559(f)(3) and SDCL Â§Â§ 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.
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
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.
Crim. P. 8.
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 ...