United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
Francis Lange filed a motion to sever his trial from that of
his codefendant Matthew Dubray. (Docket 41). The government
filed its response resisting Lange's motion. (Docket 46).
Lange did not submit a reply brief. Dubray did not join or
oppose the severance motion.
superseding indictment naming Lange and Dubray includes three
counts. (Docket 10). Count one alleges Lange stole a pistol
from a federally licensed pawn shop in Rapid City, South
Dakota, on February 9, 2016. Id. at p. 1. Count two
claims in July 2016 Dubray unlawfully possessed the pistol
Lange allegedly stole. Id. at pp. 1-2. Count three
asserts in August 2016 Dubray unlawfully possessed a
different pistol from the gun in the other counts.
Id. at p. 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 Cir. 1966).
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) (“An indictment must reveal on its face
a proper basis for joinder.”).
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(b).
argues Rule 8 is not met because “there is no evidence
or allegation of a plan or scheme.” (Docket 41 at p.
3). He claims any “series of acts” connecting the
defendants must be a series of criminal acts. Id.
The government contends the indictment satisfies Rule 8.
(Docket 46). In the government's view, Lange's
“actions as alleged are tied together with those of the
codefendant.” Id. at p. 3. The government
takes this position because it asserts Lange sold Dubray the
firearms in counts two and three. Id. at pp. 2-3.
Rule of Criminal Procedure 8(b) permits joinder of defendants
‘if they are alleged to have participated . . . in the
same series of acts or transactions constituting an offense
or offenses.' ” United States v. Gravatt,
280 F.3d 1189, 1191 (8th Cir. 2002) (quoting Fed. R. Crim. P.
8(b)). “Rule 8(b) is construed liberally.”
Id. (citing United States v. Jones, 880
F.2d 55, 62 (8th Cir. 1989)). “Rule 8(b) has been
interpreted to require some common activity involving all the
defendants which embraces all the charged offenses, but it is
not necessary that every defendant have participated in or be
charged with each offense.” United States v.
O'Connell, 841 F.2d 1408, 1432-33 (8th Cir. 1988).
“Although a conspiracy count is not always essential
for joinder of counts which do not all include every joined
defendant, in the absence of such an allegation, other facts
must be alleged which at least suggest the existence of an
overall scheme encompassing all the defendants and all the
charged offenses.” United States v. Bledsoe,
674 F.2d 647, 656-57 (8th Cir. 1982); see United States
v. Bradley, No. CR. 09-50029-02, 2010 WL 346384, at *2
(D.S.D. Jan. 22, 2010) (quoting this holding from
court finds Rule 8 is met with respect to Lange and Dubray on
counts one and two. Count one describes Lange's theft of
a firearm from a pawn shop, and count two covers Dubray's
subsequent illegal possession of that precise gun. (Docket 10
at pp. 1-2). These counts track a particular firearm's
transition from a piece of property unlawfully taken from a
store by one person and five months later unlawfully
possessed by another person. Id. Whether the firearm
made its way from Lange's theft to Dubray's
possession for Lange's monetary benefit or to conceal
Lange's crime, the underlying facts “at least
suggest the existence of an overall scheme
encompassing” the defendants. See Bledsoe, 674
F.2d at 656; United States v. Shangreaux, CR.
16-50100, 2017 WL 4075164, at *2 (D.S.D. Sept. 13, 2017).
Lange and Dubray on counts one and three, the court finds
Rule 8 is not met. Count three claims in August 2016 Dubray
unlawfully possessed a completely different gun from the one
Lange allegedly stole. (Docket 10 at p. 2). Lange is not
mentioned in count three. Id. Count three's
allegations occurred one month after count two's and six
months after count one's. Id. The face of the
indictment does not show any connection between Dubray in
count three and Lange. Id. The government argues
there is a sufficient connection because in an interview
Dubray stated Lange sold him the pistols in counts two and
three. (Docket 46 at pp. 2-3). But the indictment does not
present this information, and the court must find the basis
for joinder from the indictment's face. See
Wadena, 152 F.3d at 848; United States v.
Condon, No. 3:14-CR-30083, 2014 WL 6694782, at *4-5
(D.S.D. Nov. 26, 2014). Lange's trial on count one must
be severed from Dubray's trial on count three. Because