United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE
the court is defendant Darrin Wilder's motion to sever.
ECF No. 65. The United States filed a response (ECF No. 103),
to which Wilder replied (ECF No. 115). Co-defendants Alisha
Perez and Albert Jones have both moved to join Wilder's
motion. ECF Nos. 66, 67.
a drug-trafficking case involving the alleged shipment of
cocaine through the mail between several of the defendants
for purposes of distribution. Defendants Wilder, Perez,
Jones are charged by superseding indictment, along with other
co-defendants, with conspiracy to distribute a controlled
substance (count 1) and conspiracy to money launder (count
4). ECF No. 31. Perez and co-defendant Hakim Rydell
Branche-Jones, who has not joined this motion, are also
charged with possession of firearms in furtherance of a
drug-trafficking offense (count 2) and possession of a stolen
firearm (count 3).
February 10, 2016, a detective with the Las Vegas
Metropolitan Police Department (“LVMPD”)
conducted a custodial interrogation of defendant Perez. She
provided the detective with details regarding the
drug-trafficking conspiracy and the involvement of
co-defendants Branche-Jones and Wilder. ECF No. 65-1 at 2-7;
ECF No. 63 at 6-86. Perez eventually moved to suppress her
statements (ECF No. 63), which this court denied (ECF No. 99)
after adopting and accepting the magistrate judge's
report and recommendation on the matter (ECF No. 97).
8, 2016, the FBI and LVMPD jointly interrogated defendant
Albert Jones. The court has only received a partial summary
of the interrogation rather than a transcript, but it appears
from this summary that Jones discussed picking up cash from
defendant Branche-Jones on multiple occasions and
transferring these funds. ECF No. 65-2 at 2. Jones has not
moved to suppress his statements.
Wilder, joined by Perez and Jones, now moves to sever several
counts in the indictment. He also moves to sever Perez and
Jones from the trial, arguing that their incriminating
statements would violate the Sixth Amendment's
Severance of counts
argues that the counts of possession of firearms in
furtherance of a drug-trafficking offense and possession of a
stolen firearm should be severed because he is not charged
with either offense. He further contends that the counts of
conspiracy to distribute a controlled substance and
conspiracy to money launder should be severed, arguing that
there is no logical connection between the counts on the face
of the superseding indictment.
multiple defendants are named in an indictment, Federal Rule
of Criminal Procedure 8(b) rather than 8(a) governs the
joinder of both counts and defendants. United States v.
Satterfield, 548 F.2d 1341, 1344 (9th Cir. 1977); 1A
Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 144 (4th ed. 2017) (“The case law
is relatively clear that in cases involving multiple
defendants, the propriety of joinder is tested by Rule 8(b)
alone and that Rule 8(a) has no application.”). Rule
8(b) allows for joinder of charges if the defendants
“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.” Fed. R. Crim. P.
8(b). The rule further specifies that “[t]he defendants
may be charged in one or more counts together or
separately” and that “[a]ll defendants need not
be charged in each count.” Id.
or not multiple offenses joined in an indictment constitute a
‘series of acts or transactions' turns on the
degree to which they are related[, ]” which “is
most often established by showing that substantially the same
facts must be adduced to prove each of the joined
offenses.” Satterfield, 548 F.2d at 1344.
Moreover, “[t]he term ‘transaction' is
interpreted flexibly, and whether a ‘series' exists
depends on whether there is a ‘logical
relationship' between the transactions.” United
States v. Vasquez-Velasco, 15 F.3d 833, 843 (9th Cir.
1994). “A logical relationship is typically shown
‘by the existence of a common plan, scheme, or
conspiracy.'” Id. (quoting United
States v. Felix-Gutierrez, 940 F.2d 1200, 1208 (9th Cir.
joinder is proper under Rule 8, the court may still sever
counts or defendants under Rule 14 if the joinder
“appears to prejudice a defendant or the government . .
. .” Fed. R. Crim. P. 14(a). “The ordering of
separate trials requires unusual circumstances and the power
to do so rests within the broad discretion of the District
Court as an aspect of its inherent right and duty to manage
its own calendar.” United States v. Gay, 567
F.2d 916, 919 (9th Cir. 1978).
defendant seeking severance bears the burden of showing undue
prejudice of such a magnitude that, without severance, he
will be denied a fair trial.” United States v.
Bundy, No. 2:16-CR-00046-GMN-PAL, 2016 WL 7227882, at
*11 (D. Nev. Dec. 13, 2016) (citing United States v.
Jenkins, 633 F.3d 788, 807 (9th Cir. 2011)).
“Prejudice may arise where: (a) the jury could confuse
and cumulate the evidence of one charge to another; (b) the
defendant could be confounded in presenting his defenses
(i.e., where a defendant wishes to testify in his own defense
on one count but not another); and (c) the jury could
erroneously conclude the defendant is guilty on one charge
and therefore convict him on another based on his criminal
disposition.” Id. (citing United States v.
Johnson, 820 F.2d 1065, 1070 (9th Cir. 1987)).
the court finds that all four counts are properly joined. In
regards to the firearms charges, Wilder's co-defendants
are charged with the possession of a firearm used in
furtherance of a drug-trafficking offense, and he, along with
Perez and Jones, are charged with conspiracy to commit the
underlying drug-trafficking offense. See ECF No. 31
at 1-2. As stated explicitly in Rule 8(b), Wilder need not be
charged with each offense for joinder to be proper. Moreover,
the logical connection between this drug-trafficking
conspiracy and the charge of conspiracy to launder money is
even more readily apparent: the superseding indictment
accuses all defendants in this case of conspiring to launder