United States District Court, D. Nevada
C. W. HOFFMAN, Jr., Magistrate Judge.
This matter is before the Court on Defendant Francisco Alcaraz's Motion to Sever Counts for Trial (#42), filed on December 15, 2013. The Court also considered the Government's Response (#52), filed on January 27, 2014, and Defendant's Reply (#57), filed on February 5, 2014.
On May 22, 2013, a Federal Grand Jury returned a criminal indictment charging Defendant Francisco Alcaraz ("Alcaraz") with one count of Possession of a Firearm by a Convicted Felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). See Indictment #1. On August 7, 2013, a Federal Grand Jury returned a superseding criminal indictment, charging the defendant with three separate counts of Possession of a Firearm by a Convicted Felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). See Superseding Indictment #20.
By way of this motion, Alcaraz requests that the Court sever the counts and conduct three different trials. According to Alcaraz, the counts are unrelated transactions, each alleged to have occurred on a different day, involving different factual situations, and different evidence. Alcaraz also contends that a single trial would be prejudicial because the jury may draw improper negative inferences due the cumulative effect of repetition of allegations of assaultive behavior. In response, the Government claims that severance is not warranted because all three counts have the same statutory elements, at least one witness is common to Count One and Count Two, and Alcaraz failed to demonstrate a serious risk of prejudice.
I. Rule 8 Joinder of Offenses
Federal Rule of Criminal Procedure 8 allows the joinder of two or more offenses in one indictment if the offenses charged "are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan." Fed. R. Crim. P. 8(a). As a result, at least one of the three conditions specified in Rule 8 must be satisfied for a proper joinder. The Ninth Circuit has upheld joinder on the basis of "similar character" in a case involving two counts of felon in possession of a firearm, with different dates and surrounding circumstances. United States v. Rousseau, 257 F.3d 925, 932 (9th Cir. 2001). As for guidance on determine whether two or more counts against a defendant are the "same acts" under Rule 8(a), the Ninth Circuit has considered several factors including: the elements of the statutory offense, the temporal proximity of the acts, the likelihood and extent of evidentiary overlap, the physical location of the acts, the modus operandi of the crimes, and the identity of the victims. United States v. Jawara, 474 F.3d 565, 578 (9th Cir. 2007). Finally, the Ninth Circuit generally permits joinder of counts for a "common scheme or plan" when they grow out of related transactions. Id. at 574.
Rule 8 is construed broadly in favor of initial joinder. See United States v. Friedman, 445 F.2d 1076, 1082 (9th Cir. 1971). Joinder is favored to conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial. See Bruton v. United States, 391 U.S. 123, 134 (1968). In determining the propriety of joining offenses in the indictment, the court must examine only the allegations in the indictment meaning that a valid basis for joinder should be discernible from the face of the indictment. See Jawara, 474 F.3d at 572-73.
Here, Alcaraz concedes that the three counts are similar in that they allege that the same defendant was a felon in possession of a firearm. However, Alcaraz argues that severance of the offenses into separate trials is justified because the actual transactions are of different scenarios on different dates. Specifically, Count One involves a reported altercation outside of an apartment, Count Two involves an investigatory automobile stop, and Count Three concerns an alleged street altercation. Accordingly, Alcaraz contends that the evidence related to the three counts does not overlap. In contrast, the Government argues that all three counts have the same statutory elements and therefore, are of similar character. The Government also indicates that at least one witness overlaps between Counts One and Two of the Superseding Criminal Indictment - Las Vegas Metropolitan Police Department Detective Orth. After careful examination of the allegations in the indictment, the Court finds that the three counts "are of the same or similar character" and that initial joinder under Rule 8 is appropriate. Fed. R. Crim. P. 8. The three counts have the same statutory elements, and except for the dates and surrounding circumstances, are the same. Alcaraz's contention that the three counts are not similar due to the differing dates and differing fact scenarios is unavailing because the Court is required to only examine the allegations in the indictment. See Jawara, 474 F.3d at 572-73.
II. Rule 14 Severance of Offenses
Federal Rule of Criminal Procedure 14 provides relief from joinder of offenses under Rule 8(a) through ordering "separate trials of counts" if joinder of the offenses for trial "appears to prejudice a defendant." Fed. R. Crim. P. 14(a). Thus, "[e]ven if joinder is permissible under Rule 8, a party who feels prejudiced by joinder may move to sever pursuant to [Rule] 14." United States v. Smith, 795 F.2d 841, 850 (9th Cir. 1986). Joinder of offenses may prejudice a defendant in that:
(1) he may become embarrassed or confounded in presenting separate defenses; (2) the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime or crimes charged; or (3) the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not so find.
United States v. Johnson,
820 F.2d 1065, 1070 (9th Cir. 1987) (quoting Drew v. United States, ...