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United States v. Wilder

United States District Court, D. Nevada

June 16, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
DARRIN WILDER, ALISHA PEREZ, AND ALBERT JONES Defendants.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE

         Before 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.

         I. Background

         This is 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, [1] and 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).

         On 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).

         On June 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.

         Defendant 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 Confrontation Clause.

         II. Severance of counts

         Wilder 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.

         When 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.

         “Whether 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. 1991)).

         Even if 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).

         “The 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)).

         Here, 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 ...


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