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United States v. Dodge

United States District Court, D. New Mexico

June 13, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ISAAC JOSEPH DODGE, Defendant.

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SEVER COUNTS

         THIS MATTER comes before the Court upon Defendant's Motion to Sever Counts, filed April 5, 2018 (Doc. 48). Having reviewed the parties' briefs and applicable law, the Court finds that Defendant's motion is not well-taken and, therefore, is DENIED.

         BACKGROUND

         Defendant is charged with two separate counts of armed bank robbery, one of a BBVA Compass Bank branch on March 7, 2017, and another of a U.S. Bank branch on April 4, 2017, in violation of 18 U.S.C. § 2113(a) and (d). These banks are approximately 1.9 miles apart.[1]

         In this Motion, Defendant argues (1) that the two armed robbery counts were improperly joined under Fed. R. Crim. P. 8(a) and (2) that the Court must sever these counts because a joint trial of the two counts will prejudice his right to a fair trial.

         Defendant asserts that witnesses will testify as follows. As to the first armed robbery, experts will testify as to a fingerprint collected from a plastic box on the counter inside of the bank, which the Government asserts matches Defendant. Witnesses will describe the suspect as a white or Hispanic male, approximately 5'10' to 6' tall, heavyset, wearing gloves, a black mask, and baseball hat. One witness saw a white Dodge Durango in the area.

         As to the second count, witnesses will testify that the suspect exited the bank and left in a black BMW with a Texas license plate. Deputy Jordan Skinner will testify that the observed a white dodge Durango driving behind a black BMW around Osuna and Jefferson. Witnesses will describe the suspect as a white or Hispanic male, approximately 5' 11'' to 6'0'', medium build, wearing a white motorcycle helmet and a red colored mirrored visor. No. finger prints were found at the second bank.

         DISCUSSION

         The joinder of offenses in a criminal trial is governed by Rules 8(a) and 14 of the Federal Rules of Criminal Procedure. Rule 8(a) allows for the joinder of offenses when:

- 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.”

Fed.R.Crim.P. Rule 8(a); U.S. v. Sturmoski, 971 F.2d 452, 460 (10th Cir. 1992). If two or more offenses are properly joined under Rule 8(a), the joinder is also subject to scrutiny under Rule 14, which provides: “[i]f the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires.” Fed.R.Crim.P. 14(a). In determining whether to grant a motion to sever, the district court must weigh the potential prejudice to the defendant against the considerations of judicial economy and efficiency. Zafiro v. United States, 506 U.S. 534, 537 (1993); U.S. v. Dirden, 38 F.3d 1131, 1140 (10th Cir. 1994).

         I. Whether Joinder was Proper Pursuant to Fed. R. Crim. P. 8(a).

         Defendant argues that the two armed robbery counts are not properly joined, because they do not meet any of the above disjunctive conditions under Fed. R .Crim. P. 8(a). This determination is a fact ...


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