United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S
MOTION TO SEVER COUNTS
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.
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.
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
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.
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.
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).
Whether Joinder was Proper Pursuant to Fed. R. Crim. P.
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 ...