United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE
jury indicted defendant Moses Crowe on charges of carjacking
resulting in serious bodily injury, discharging a firearm
during and in relation to a crime of violence and possessing
a firearm as a felon. (Docket 2). Defendant now moves to
sever the felon-in-possession count from the other two.
(Docket 123). The government resists the motion. (Docket
129). For the reasons given below, the court denies
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). “Under
Rule 8, multiple counts can be charged in a single indictment
as long as the offenses are (1) of the same or similar
character; (2) based on the same act or transaction; or (3)
constitute parts of a common scheme or plan.”
United States v. Garrett, 648 F.3d 618, 625 (8th
Cir. 2011) (citations omitted). “The 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.
Inadi, 475 U.S. 387 (1986). “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)).
Rule 14, a district court may sever [counts] if it appears
that a defendant is prejudiced by a joinder of
offenses[.]” Darden, 70 F.3d at 1527 (internal
quotation marks and brackets omitted). “When joinder is
proper under Rule 8, the defendant seeking a severance has
the burden to demonstrate how the joint trial prejudiced his
or her right to a fair trial.” Id. (citations
omitted). “Severe prejudice 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. There
is a strong presumption against severing properly joined
counts.” Garrett, 648 F.3d at 625-26 (internal
quotations and citations omitted).
court first finds the indictment properly joined the
felon-in-possession count with the counts stemming from the
alleged carjacking. The carjacking counts allege defendant
and two co-defendants carjacked a vehicle by force, resulting
in serious bodily injury, and discharging a firearm in doing
so. (Docket 2 at pp. 1-2). The indictment alleges the
carjacking occurred on October 13, 2017. Id. The
felon-in-possession count alleges defendant possessed a Smith
& Wesson pistol on October 24, 2017. Id. at p.
did not provide further factual details about the alleged
offenses, other than to state there is no physical evidence
tying him to the carjacking. (Docket 123 at p. 4). The
government asserts its evidence will show the firearm
defendant allegedly possessed on October 24 was the same
firearm used in the carjacking. (Docket 129 at pp. 2-3).
applying the same or similar character standard, the court
permits joinder when the two counts refer to the same type of
offenses occurring over a relatively short period of time,
and the evidence as to each overlaps.” United
States v. Boyd, 180 F.3d 967, 981 (8th Cir. 1999)
(internal quotations omitted). Here, the offenses allegedly
involve the same weapon and occurred over a mere eleven days.
See Id. at 982 (approving joinder of counts
occurring 18 months apart). It appears the counts will
involve common evidence. The court finds joinder of the
counts was proper.
determined the three counts pending against defendant were
properly joined in a single indictment, the court now
concludes defendant has not shown any prejudice which would
merit severing the counts. Defendant asserts prejudice from a
joined trial will result for three reasons:
1. The evidence against him for the carjacking counts is so
minimal that the jury will cumulate the evidence from the
felon-in-possession count ...