United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE.
government filed a motion for joinder of the above-captioned
cases. (CR. 16-50118, Docket 75; CR. 16-50149, Docket 88).
Defendant Wicahpe Milk filed a response indicating that he
did not oppose joinder. (CR. 16-50118, Docket 77). Defendants
Julissa Poor Bear and Harold Brewer did not file a response
to the government's motion and the time for doing so has
November 16, 2016, defendants Julissa Poor Bear and Harold
Brewer were changed in a single-count indictment with
conspiracy to distribute methamphetamine in violation of 21
U.S.C. §§ 846, 841(a) and 841(b)(1)(A). (CR.
16-50149, Docket 2). On April 18, 2017, defendant Wicahpe
Milk was charged in a two-count superseding indictment with
the following offenses: count I, conspiracy to distribute
methamphetamine in violation of 21 U.S.C. §§ 846,
841(a) and 841(b)(1)(A); and count II: possession of a
firearm by a prohibited person in violation of 18 U.S.C.
§ 922(g)(1). (CR. 16-50118, Docket 35). Both indictments
indicate the alleged conspiracies began on or about January
2, 2015, and continued to on or about the date of the
indictments. (CR. 16-50118, Docket 35 at p. 1; CR. 16-50149,
government asserts joinder is proper under Fed. R. Crim. P.
8(b) and 13 because the defendants are alleged to be
participants in the same drug conspiracy. (CR. 16-50149,
Docket 88 at p. 3). The government submits the evidence will
show Mr. Milk and Ms. Poor Bear “were heavily involved
in the conspiracy at comparable levels” and that none
of the three defendants “made admissible statements to
law enforcement.” Id. at p. 4. The government
contends “the prosecution of each case will involve
extensive overlap of witnesses, including numerous
cooperating [witnesses].” Id. at p. 3. The
prosecution says there are 70 to 80 potential witnesses with
significant overlap if the cases are tried separately. The
government argues “joint trials of these offenses will
‘conserve funds, diminish inconvenience to witnesses
and public authorities, and avoid delays in bringing those
accused of crime to trial.' ” Id. at p. 4
(citing United States v. Lane, 474 U.S. 438, 449
(1986) (quoting Bruton v. United States,
391 U.S. 123, 134 (1968)).
Crim. P. 8 permits the joinder of defendants. That rule
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). Rule 13 similarly permits the court to
conduct a joint trial of separate cases. “The court may
order that separate cases be tried together as though brought
in a single indictment . . . if all of the offenses and all
of the defendants could have been joined in a single
indictment . . . .” Fed. R. Crim. P. 13.
is a clear preference for a joint trial of persons charged in
a conspiracy. United States v. Ruiz, 446 F.3d 762,
772 (8th Cir. 2006); see also United States v.
Kime, 99 F.3d 870, 880 (8th Cir. 1996) (“Persons
charged with a conspiracy will generally be tried together,
especially where proof of the charges against each of the
defendants is based on the same evidence and acts. Rarely, if
ever, will it be improper for co-conspirators to be tried
together.”) (citations and internal quotation marks
omitted). This clear preference for joinder may be overcome
if the party moving to sever “can show that the
benefits [of joinder] are outweighed by a clear likelihood of
prejudice.” United States v. Clay, 579 F.3d
919, 927 (8th Cir. 2009) (citation and internal quotation
marks omitted); see also United States v. Pherigo,
327 F.3d 690, 693 (8th Cir. 2003) (In “ruling on a
motion for severance, a court must weigh the inconvenience
and expense of separate trials against the prejudice
resulting from a joint trial of codefendants. To grant a
motion for severance, the necessary prejudice must be severe
or compelling.”) (citations and internal quotation
guides the court as to whether the government's motion
for joinder should be denied. The rule provides: “[i]f
the joinder of offenses or defendants in an indictment . . .
appears to prejudice a defendant . . . the court may order
separate trials of counts, sever the defendants' trials,
or provide any other relief that justice requires.”
Fed. R. Crim. P. 14(a). “A court will permit severance
only upon a showing of real prejudice to an individual
defendant.” United States v. Payton, 636 F.3d
1027, 1037 (8th Cir. 2011) (internal quotation marks and
citation omitted). “Prejudice to the defendant must be
both ‘real' and ‘clear' . . . . To
satisfy the real prejudice standard, a defendant may show
that his defense is irreconcilable with the defense of his
codefendant or that the jury will be unable to
compartmentalize the evidence as it relates to separate
defendants. . . . The defendant carries a heavy burden in
making this showing.” Id. (internal quotation
marks and citations omitted).
defenses require severance only when there is a danger that
the jury will unjustifiably infer that this conflict
alone demonstrates that both are guilty. . . . Severance
is not mandated whenever codefendants have conflicting
defenses.” Id. (internal quotation marks and
citation omitted) (emphasis in original). Defendants have not
disclosed antagonistic defenses in this case.
court finds the inconvenience and expense of separate trials
clearly outweigh any prejudice to defendants in joinder.
on the above analysis, it is hereby
that the government's motions for joinder (CR. 16-50118,
Docket 75; ...