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United States v. Haggerty

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

February 7, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
COLBY HAGGERTY, Defendant.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE

         INTRODUCTION

         On May 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).

         On 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).

         On 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).

         On 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 otherwise indicated.

         FACTS

         The 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 joinder.

         The following facts come from the indictment and bill of particulars in CR. 14-50046. On April 16, 2014, Detective Russ Eisenbraun, Investigator Jonathan Kirk, [1] and Investigator Benjamin Tallman[2] 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.

         The 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.

         ANALYSIS

         I. MOTION TO SEVER CHARGES

         A. RULE 8

         When a 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 correct outcome.”

Kirk, 528 F.3d at 1107.

         Defendant argues the government did not properly join counts I and II of the indictment under Rule 8. (Docket 105 at pp. 1-3).[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.[4] Id. at p. 5.

         The 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.

         To meet 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. See id.

         With 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).

         As to 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).

         With 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).

         The 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 confusion problems.

         B. RULE 14

         Defendant objects to joinder of counts I and II in the indictment based on Fed. R. Crim. P. 14. (Docket ...


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