United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendant Jermaine
Doss' Motion for Severance of Offenses, [Doc. 46], filed
on October 6, 2017. The government filed its Response to the
Motion [Doc. 58] on October 20, 2017. The Court heard oral
arguments on the Motion on November 3, 2017. Having
considered the Motion and the relevant law, and being
otherwise fully informed, the Court finds that the Motion is
not well-taken and will be denied.
January 24, 2017, a Superseding Indictment was returned
charging Mr. Doss with three counts of sex trafficking, in
violation of 18 U.S.C. § 1591(a). [Doc. 17]. Each count
is associated with a separate alleged victim: BJ, TK, and AK.
Mr. Doss' Motion requests that the Court sever Counts 1,
2, and 3 of the Superseding Indictment and hold separate
trials for each count. [Doc. 46 at 1]. The defense argues,
first, that the three counts were not properly joined under
Fed. R. Crim. P. 8 because there is “almost no factual
connection between the charges and no factual connection,
other than allegations against Mr. Doss, between the alleged
victims.” [Doc. 46 at 3]. Second, the defense argues
that even if the counts were properly joined under Rule 8,
the Court should find that Rule 14 compels severance of the
charges, in order to avoid prejudice to Mr. Doss. [Doc. 46 at
3-4]. In particular, the defense argues that (1) “the
jury may use evidence of proof of one crime as evidence of
another crime, ” (2) a joint trial would impair Mr.
Doss' constitutional right to refuse to testify, and (3)
evidence of other counts would not be admissible against Mr.
Doss in separate trials. [Doc. 46 at 5, 9, 10]. During oral
argument, the defense clarified that Mr. Doss may want to
testify in response to one of the alleged victims, with whom
Mr. Doss alleges he had a romantic relationship, but that he
does not want to testify against the other two alleged
victims, in light of impeachment evidence available.
response, the government argues that the counts were properly
joined because “the offenses 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.” [Doc. 58 at 3-4 (quoting Untied States v.
Price, 265 F.3d 1097, 1105 (10th Cir. 2001)]. In
particular, the government intends to prove at trial that Mr.
Doss used “fraud, force, threats of force and other
forms of coercion to exploit [each of the] three women for
his personal profit.” Id. at 4. Furthermore,
the government argues that Mr. Doss has not met his burden in
justifying a severance. First, the defense has only
speculated prejudice and has not identified actual prejudice
that will result from joinder of the three counts.
Id. at 5 (citing United States v. Muniz, 1
F.3d 1018, 1023 (10th Cir. 1993); United States v.
Caldwell, 560 F.3d 1214, 1221 (10th Cir. 2009);
inter alia). Second, a limiting instruction can cure
possible prejudice. Id. at 7 (citing, inter
alia, Tenth Circuit Pattern Instruction
1.22). Third, Mr. Doss has not made “a
convincing showing that he has both important testimony to
give concerning one count and strong need to refrain from
testifying on the other.” Id. at 9 (citing
United States v. Valentine, 706 F.2d 282, 291 (10th
Cir. 1983)). Finally, the government argues that evidence
pertaining to other counts would be admissible in separate
trials, under Fed.R.Evid. 404(b), for the purpose of showing
“motive, intent and a common plan on Mr. Doss' part
to exploit and abuse women for profit.” Id. at
Court agrees that, based on the government's theory that
Doss had a common plan to exploit women for his personal
profit, the counts were properly joined under Rule 8. The
Court also agrees that the defense has not met its burden
justifying a severance under Rule 14. “Inasmuch as
severance is a matter of discretion and not of right, the
defendant must bear a heavy burden of showing real prejudice
to his case.” United States v. Hall, 473 F.3d
1295, 1302 (10th Cir. 2007). “To establish prejudice, a
defendant must identify a ‘specific trial right that
was compromised or show the jury was prevented . . . from
making a reliable judgment about guilt or
innocence.'” United States v. DeLeon, 2017
WL 3054511, at *83 (D.N.M. June 30, 2017) (quoting United
States v. Pursley, 474 F.3d 757, 766 (10th Cir. 2007).
defense has not demonstrated that there will be actual
prejudice in trying the three counts together. Mr. Doss'
argument that he may wish to testify in response to one
alleged victim but not in response to the others fails to
elucidate an actual conflict in Mr. Doss' defenses to
each count. In other words, Mr. Doss has not cited excerpts
from the exhibits at issue that actually show he will be
unable to mount defenses to each count in one trial. Although
it is the defense's burden to cite such conflicts, the
Court examined the government's exhibits itself and did
not identify evidence indicating that Mr. Doss would be
unable to present complete defenses to all counts during one
trial. In sum, the defense has only presented possible
prejudice. However, neither “a mere allegation that
defendant would have a better chance of acquittal in a
separate trial” nor an arguing that evidence would have
a “spillover effect” demonstrates prejudice.
United States v. Jones, 530 F.3d 1292, 1303 (10th
the defense has not shown why a limiting instruction would be
insufficient to cure possible prejudice. As "a general
rule, [courts] presume that juries follow [limiting]
instructions." United States v. Lane, 883 F.2d
1484 (10th Cir. 1989); United States v. Cardall, 885
F.2d 656, 668 (10th Cir. 1989) ("[T]hat juries can and
will follow the instructions they are given is fundamental to
our system of justice."). Finally, the Court agrees at
this time that evidence pertaining to other counts would be
admissible in separate trials under Fed.R.Evid. 404(b), to
show Doss' common scheme or plan to coerce vulnerable
women into engaging in commercial sex. Because Mr. Doss has
not met his burden under Rule 14 to show actual prejudice and
that a limiting instruction would be insufficient, the Motion
for Severance must be denied.
IS THEREFORE ORDERED that Mr. Doss' Motion for
Severance of Offenses, [Doc. 46] is denied.
Tenth Circuit Pattern Instruction 1.22
reads as follows: “A separate crime is charged against
one or more of the defendants in each count of the
indictment. You must separately consider the evidence against
each defendant on each count and return a separate verdict
for each defendant. Your verdict as to any one defendant or
count, whether it is guilty or not guilty, ...