United States District Court, D. Nevada
OMNIBUS ORDER RE
VARIOUS PRETRIAL MOTIONS 141, 144, 145 & 146
JENNIFER A. DORSEY, District Judge.
Defendants Julio De Armas Diaz and Alex Torres Simon are accused of running an organized retail theft crew that carried out a series of large-scale thefts of luxury purses, high-end jeans, shoes, and other items between October 2012 and April 2013. During this alleged crime spree, Diaz and Simon also stole medical supplies from two pharmaceutical vans whose drivers had left the doors unlocked. Simon formulated a plan to rob another pharmaceutical delivery van from the same company and kidnap its driver, and he recruited a confidential human source ("CHS"), along with Diaz and Alexander Del Valle Garcia to join him in the heist planned for the early morning of April 8, 2013.
That morning, Diaz and Simon drove together to a school parking lot near the intended victim's home. Garcia and the CHS arrived together in a separate vehicle at the planned meeting place. Before they could proceed to the target van, federal agents descended upon them, arrested them, and found a gun in Simon's car and a roll of duct tape and three pairs of gloves in Garcia's. Diaz, Simon, and Garcia were indicted for various conspiracy and theft-related offenses, and their joint trial is scheduled to begin on April 28, 2014.
In anticipation of trial, the parties filed numerous motions, including:
Defendant Del Valle Garcia's Motion to Strike Count Three of the Indictment [Doc. 141];
Objections re LR IB 3-1 for District Judge to Reconsider Order re 131 Order on Motion for Joinder and Order on Motion to Sever Defendant [Doc. 144];
Defendant Torres Simon's Motion to Strike Counts Three and Five of the Superseding Indictment [Doc. 145]; and
Motion for Judicial Notice of Times Zones [Doc. 146].
The Court addresses these four motions as follows:
A. Garcia's Objections re LR IB 3-1 for District Judge to Reconsider Order re 131 Order on Motion for Joinder and Order on Motion to Sever Defendant [Doc. 144]
The Second Superseding Indictment charges Garcia, Simon, and Diaz for conspiracy to interfere with commerce by robbery (Count 1), attempted interference with commerce by robbery (Count 2), possession of a firearm in furtherance of a crime of violence (Count 3), and conspiracy to commit theft from interstate shipment (Count 7). Doc. 77. Garcia moved to sever his trial from that of his co-defendant, Diaz, citing concerns that "spillover" evidence from Diaz's trial will prejudice him. He claimed that while Diaz allegedly operated an "organized retail theft crew" that committed a series of large-scale robberies, Garcia's involvement in the conspiracy began and ended in having the misfortune to make a detour while driving the CHS to his purported job interview. See id. Garcia pointed to the fact his name "never appears once in the hundreds of pages of evidence that the FBI has accumulated regarding both Simon and Diaz." Id. at 8. He claimed he would be exposed to a considerable risk of prejudice if his trial is consolidated with that of Diaz and Simon, as the jury may improperly impute Diaz and Simon's activities to him. Id. at 2-3. In response, the government argued that Garcia's broad invocations of prejudice do not meet the standard for severance of joint trials and because many witnesses will overlap, judicial efficiency compels a joint trial here. Doc. 83 at 9-11.
After briefing was complete, Magistrate Judge Foley issued a 15-page denying Garcia's severance request, finding that the "spillover" evidence from Diaz and Simon would not unfairly prejudice Garcia. Doc. 131 at 1-3, 6-8. Garcia objects that Judge Foley erred in relying on United States v. Douglass as the basis for denying severance. He argues that Douglass charged a marginal defendant with participation in conspiracy that occurred over a two-day period, which is not the same sort of "open-ended conspiracy" alleged in the Second Superseding Indictment. See id. Instead, Garcia requests that the Court rely on United States v. Donoway, a Ninth Circuit case in which the panel found that the trial court erred in not severing a trial as to defendant Donaway where "less than 50 of the 2300 transcript pages in the government's case were relevant to Donaway." See id. He then claims that a similarly "great disparity" in the evidence the government has against Garcia, Diaz, and Simon makes a joint trial unduly prejudicial, thus justifying severance. Id. 
Criminal Rule 59(a) requires district judges to review timely objections to nondispositive pretrial orders issued by magistrate judges and to "modify or set aside any part of the order that is contrary to law or clearly erroneous." The Court must consider all properly filed objections and either "modify or set aside any part of the order that is contrary to law or clearly erroneous."
Under Rule 8(b), defendants may be joined in an indictment where "they are alleged to have participation in the same act or transaction, or in the same series of acts of acts or transactions, constituting an offense or offenses." Even if joinder is proper, Rule 14 permits the Court to order separate trials or provide other relief that justice requires if joinder "appears to prejudice a defendant or the government." Because there is some prejudice inherent in any joinder, however,  "[a] defendant must show clear, manifest or undue prejudice and violation of a substantive right resulting from the failure to sever." Rule 14 does not require severance even if prejudice is ...