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United States v. Crowe

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

October 29, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MOSES CROWE, Defendant.

          ORDER

          JEFFREY L. VIKEN, CHIEF JUDGE

         INTRODUCTION

         A grand 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 defendant's motion.

         I. Legal Standards

         “When 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)).

         “Under 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).

         II. Analysis

         A. Joinder

         The 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. 3.

         Defendant 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.[1] (Docket 129 at pp. 2-3).

         “In 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.

         B. Severance

         Having 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 ...

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