United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
20, 2014, an indictment charged defendant Colby Haggerty with
receipt of child pornography, count I, and possession of
child pornography, count II. (CR. 14-50046, Docket 1).
November 3, 2015, an indictment relating to subsequent acts
charged Mr. Haggerty with receipt of child pornography, count
I, and possession of child pornography, count II. (CR.
15-50138, Docket 1). On July 25, 2016, the government filed a
motion to dismiss count II. (CR. 15-50138, Docket 30). The
court dismissed count II without prejudice on July 26, 2016.
(CR. 15-50138, Docket 31).
August 16, 2016, defendant filed a motion to sever counts I
and II in CR. 14-50046. (CR. 14-50046, Docket 104). On the
same day defendant also filed a motion in limine
regarding the government's presentation of child
pornography images to the jury. (CR. 14-50046, Docket 106).
The government filed its response to both motions on
September 6, 2016. (CR. 14-50046, Dockets 120 & 121).
August 17, 2016, the government filed motions for joinder of
the cases and notices pursuant to Fed.R.Evid. 404(b) in both
cases. (CR. 14-50046, Dockets 108 & 110; CR. 15-50138,
Dockets 33 & 35). On August 24, 2016, defendant filed
responses in opposition to the joinder motions and the Rule
404(b) notices. (CR. 14-50046, Dockets 116 & 118; CR.
15-50138, Dockets 38 & 40). Because the pleadings of the
parties are nearly identical in both cases, the court will
focus on the arguments of counsel in CR. 14-50046 unless
court determines the propriety of joinder based on the
indictment's allegations and those allegations are to be
considered as true. United States v. Massa, 740 F.2d
629, 644 (8th Cir. 1984) (overturned on other grounds). In
CR. 14-50046, the court ordered the government to file a bill
of particulars describing the evidence and alleged conduct
supporting each count of the indictment. (CR. 14-50046,
Docket 97 at pp. 8-9). The government filed a bill of
particulars on July 25, 2016. (CR. 14-50046, Docket 101). The
same occurred in CR. 15-50138. (CR. 15-50138, Dockets 26
& 29). The bill of particulars in each case is part of
the record the court considers in determining severance and
following facts come from the indictment and bill of
particulars in CR. 14-50046. On April 16, 2014, Detective
Russ Eisenbraun, Investigator Jonathan Kirk,  and Investigator
Benjamin Tallman went to defendant's residence at
Ellsworth, AFB, South Dakota. (CR. 14-50046, Docket 101 at p.
1). They knocked on defendant's door and defendant
allowed them inside his residence. Id. at p. 2. The
agents spoke with defendant in his residence and eventually
conducted an interview in the dormitory's common area.
Id. Defendant stated he downloaded child pornography
and used at least one computer in his residence to view child
pornography. Id. The agents seized several of
defendant's electronic devices and hundreds of child
pornography images on those devices. Id.
following facts come from the indictment and bill of
particulars in CR. 15-50138. On October 14, 2015, defendant
resided at Community Alternatives of the Black Hills
(“CABH”) while on pretrial release. (CR.
15-50138, Docket 29 at pp. 1-2). On that day, a CABH employee
discovered defendant had an unauthorized cell phone.
Id. Upon searching the phone, the employee found
internet searches on the phone suggesting the user sought
child pornography, which an ICAC agent later confirmed.
Id. at pp. 3-4. An ICAC agent conducted a forensic
evaluation of the cell phone and found images of child
pornography. Id. at p. 4.
MOTION TO SEVER CHARGES
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). “Joinder is proper if any one of
these three standards is met.” United States v.
Kirk, 528 F.3d 1102, 1107 (8th Cir. 2008). Courts 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
United States Court of Appeals for the Eighth Circuit
explained the rationale behind this policy:
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
Kirk, 528 F.3d at 1107.
argues the government did not properly join counts I and II
of the indictment under Rule 8. (Docket 105 at pp.
1-3). He claims there “is no requirement
that the counts be tried together; [t]he [c]ourt has
discretion in this case as to which counts should be tried
together; [t]he counts of the indictment violate Double
Jeopardy[;] [t]he counts are multiplicitous and duplicitous;
and, [t]he jury instructions in this case will confuse the
jury” and prejudice him. Id. at p. 5.
government claims joinder is proper under Rule 8. (Docket 120
at p. 2). The government asserts the counts are properly
joined because they relate to child pornography and are
established by evidence on the same electronic devices, which
heightens the likelihood the conduct occurred during the same
time period. Id.
Rule 8's “same or similar character”
standard, three factors must be shown. See United States
v. Boyd, 180 F.3d 967, 981 (8th Cir. 1999) (internal
quotation marks and citations omitted). First, “the two
counts [must] refer to the same type of offenses . . .
.” See id. Second, they must occur “over
a relatively short period of time . . . .” See
id. And third, the evidence for the counts must overlap.
respect to the first factor, counts I and II are the same
type of offense because both of them relate to similar child
pornography crimes. See 18 U.S.C. §§
2252A(a)(2)(A), 2252A(a)(5)(B); see also United States v.
Lindsey, 782 F.2d 116, 117 (8th Cir. 1986) (per curiam)
(explaining “same” under Rule 8 as including
crimes of “similar” character, “which means
“[n]early corresponding; resembling in many respects;
somewhat alike; having a general likeness.”) (internal
quotation marks omitted and citation omitted).
the timeframe, the alleged conduct in count I occurred on or
about between August 1, 2009, and August 16, 2014. (Docket 1
at p. 1). Count II's alleged conduct occurred on or about
April 16, 2014. Id. The counts pertain to conduct
during the same time period. See United States v.
Garrett, 648 F.3d 618, 625 (8th Cir. 2011) (collecting
cases where as much as two years passed between conduct in
offenses and there was no Rule 8 problem).
respect to the third factor, the evidence for counts I and II
overlaps because the electronic device pertinent to count II
is also evidence the government seeks to use in proving count
I. (Docket 101 at pp. 2-4).
court finds the government joined counts I and II of the
indictment consistent with Rule 8. The court also finds the
indictment does not present multiplicity, duplicity, or jury
objects to joinder of counts I and II in the indictment based
on Fed. R. Crim. P. 14. (Docket ...