United States District Court, D. South Dakota, Central Division
OPINION AND ORDER DENYING MOTION FOR RULING OF
MISJOINDER OR SEVERANCE
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.
Martin Rezac was indicted on three counts on April 13, 2016.
Doc. 1. Count I alleges that on December 11, 2014, Rezac used
a telephone to willfully threaten to damage and destroy a
building on the Hot Springs Campus of the Veteran Affairs
(VA) Black Hills Health Care System by means of an explosive
device in violation of 18 U.S.C. § 844(e). Doc. 1 at 1.
Count II alleges that between June 1, 2015, and November 26,
2015, Rezac used a telephone to threaten to kill, injure, and
intimidate a registered nurse at the VA Medical Center in
Sioux Falls, and to damage and destroy a building on the
Sioux Falls Campus of the VA Sioux Falls Health Care System
by means of an explosive device in violation of 18 U.S.C.
§ 844(e). Doc. 1 at 1-2. Count III alleges that on
November 27, 2015, Rezac made false statements and
representations to Federal Bureau of Investigation Special
Agents Bradley R. Murkins and Gina M. Palokangas regarding
the nature of explosive and dangerous items at his residence,
in violation ofl8U.S.C. §1101. Doc. 1 at 2.
15, 2017, Rezac filed a Motion for Ruling of Misjoinder or
Severance. Doc. 51. Rezac argues that Count III was wrongly
joined with Counts I and II under Rule 8(a) of the Federal
Rules of Criminal Procedure because (1) Count III is not of
the same or similar character to the first two counts, (2)
Count III did not occur within a relatively short period of
time of the first two counts, and (3) Counts I and II would
not be admissible as overlapping evidence in a trial on Count
III under Federal Rules of Evidence 402, 403, and 404. Doc.
52 at 3. Rezac argues that even if Rule 8(a) were to permit
joinder of the count, joinder of Counts I and II with Count
III would result in prejudice to Rezac and should be severed
under Federal Rule of Criminal Procedure 14. Doc. 52 at 3.
The Government resisted this motion, and provided evidence
that the alleged false statements made on November 27, 2015
occurred after an explosive device detonated in Rezac's
residence. Doc. 53 at 1- 2.
of alleged offenses for trial is governed by Rule 8(a) of the
Federal Rules of Criminal Procedure. Rule 8(a) of the Federal
Rules of Criminal Procedure provides:
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). The promotion of judicial economy is
often used in construing Rule 8(a) in favor of joinder.
United States v. McCarther, 596 F.3d 438, 441-42
(8th Cir. 2010).
first argues that Count III, which alleges that Rezac made
false statements and representations to two FBI Special
Agents on November 27, 2015 about the nature of explosive and
dangerous items at his residence, should be separated from
Counts I and II, which allege in part that Rezac used a
telephone to threaten to destroy buildings on two separate VA
health care campuses, one on December 11, 2014, and the other
between June 1, 2015, and November 26, 2015. Doc. 52 at 2-3.
An indictment may charge a defendant with multiple offenses
in separate counts if the offenses 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).
Counts I and II were properly joined with Count III. Offenses
are considered to be of the "same or similar
character" when "the two counts refer to the same
type of offenses occurring over a relatively short period of
time, and the evidence to each count overlaps."
United States v. Rodeers, 732 F.2d 625, 629 (8th
Cir. 1984) (quoting United States v. Shearer. 606
F.2d 819, 820 (8th Cir. 1979)). Whether events occurred
within a "relatively short time period, " is
determined on a case-by-case basis, and the length of time
between the offenses is evaluated "relative to the
similarity of the offenses, and the possible overlapping of
evidence." Id. Counts I and II allege making a
threatening communication by telephone, one count in December
11, 2014, and one count between June 1, 2015 and November 26,
2015. Doc. 1. Count III alleges making a false statement on
November 27, 2015. Doc. 1. Occurring between one day and
seven months after Count II, and approximately eleven months
after Count I, joinder of Count III with Counts I and II does
not appear to violate the relatively short period of time
consideration. The Eighth Circuit routinely upholds joinder
of offenses occurring much further apart. See United
States v. Tyndall, 263 F.3d 848, 850 (8th Cir. 2001)
("[A]lthough they occurred a year apart, we have upheld
the joinder of charges based on events separated by
substantially longer periods."); Rodgers, 732
F.2d at 629 (upholding joinder of offenses twenty months
apart where they were of the same type and had overlapping
evidence); United States v. Hastings, 577 F.2d 38,
40 (8th Cir. 1978) (upholding joinder of offense of
counterfeiting over two years); see also United States v.
Brown Thunder, No. CR 11-30113-RAL, 2012 WL 5833557, at
*2 (D.S.D. Nov. 16, 2012) (upholding joinder of sexual
assault offenses that occurred between 23 and 35 months
while the offenses of making false statements, as charged in
Count III, and making threatening communications in Counts I
and II, may not be exactly of the "same or similar
character, " the alleged false statements were connected
to the threatening statements in Counts I and II, and thus
"connected with or constitute parts of a common scheme
or plan" under Rule 8(a). See Doc. 53 at 2. The two
counts of making threatening statements involve Rezac
allegedly threatening to destroy two buildings on VA health
care campuses using a bomb, and threatening to harm a nurse
working at a VA hospital. Doc. 1 at 1-2. Count III involves
Rezac allegedly making false statements when the FBI
interviewed him after an explosive device detonated in his
residence, particularly when Rezac denied having certain
types of explosives within his home. Doc. 1; Doc. 53 at 1.
The counts charged in the indictment were properly joined
under Rule 8(a).
Rezac argues that even if the counts were properly joined
under Rule 8(a), they must be severed because the joining of
charges will "appear to prejudice [the]
defendant." Fed. R. Crim. P. 14(a). To prevail on such
an argument, the defendant must show "severe prejudice,
" which "occurs when a defendant is deprived of an
appreciable chance for an acquittal, a chance that the
defendant would have had in a severed trial." United
States v. Geddes, 844 F.3d 983, 988 (8th Cir. 2017)
(internal marks removed) (quoting United States v.
Scott, 732 F.3d 910, 916 (8th Cir. 2013)). However,
"[w]here evidence that a defendant had committed one
crime would be probative and thus admissible at the
defendant's separate trial for another crime, the
defendant does not suffer any additional prejudice if the two
crimes are tried together." United States v. Taken
Alive, 513 F.3d 899, 903 (8th Cir. 2008) (quoting
Rodgers, 732 F.2d at 630). This analysis may involve
considering whether the evidence in a count desired to be
severed for a separate trial would come in so it
"completes the story of the crime, or as evidence of a
prior bad act of a similar nature admissible under Rule
404(b) of the Federal Rules of Evidence."
Geddes, 844 F.3d at 988 (quoting United States
v. Brown, 653 F.3d 656, 662 (8th Cir. 2011)). Under the
Federal Rules of Evidence 404(b), while "[e]vidence of a
crime, wrong, or other act is not admissible to prove a
person's character, " it is admissible in a criminal
case to prove "motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of
accident." Evidence relating to the alleged false
statements made to the FBI agents, and circumstances around
those false statements-that they involved explosives found at
Rezac's residence-would be relevant on whether the
defendant was making a "true threat" in Counts I
and II. See United States v. Williams, 690 F.3d
1056, 1062 (8th Cir. 2012) (recognizing the Eighth
Circuit's objective test to determine whether a
communication is a true threat). Proof of this nature would
likely be admissible for several of the permissible 404(b)
reasons. See, e.g., United States v.
Engleman, 648 F.2d 473, 483 (8th Cir. 1981) (evidence of
alleged prior bombing admissible in fatal bombing case under
Rule 404(b) because it tended to show motive, identity,
intent, and common plan). Because there are only three counts
and one defendant in this case, there also does not appear to
be any "serious risk that a joint trial would . . .
prevent the jury from making a reliable judgment about guilt
or innocence." Zafiro v. United States, 506
U.S. 534, 539(1993).
for the reasons discussed above, it is hereby
that the Motion for Ruling of Misjoinder or ...