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United States v. Baca

United States District Court, D. New Mexico

March 14, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ISRAEL BACA, Defendant.

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

         This matter comes before the Court on Defendant Israel Baca's Motion to Sever Counts (Motion to Sever Counts), filed on February 15, 2019. (Doc. 30). The United States filed its response in opposition on March 11, 2019. (Doc. 60). Having considered the Motion to Sever Counts and the response, the Court denies the Motion to Sever Counts.

         On November 14, 2018, the United States filed a Superseding Indictment on Defendant. (Doc. 19). The Superseding Indictment charges Defendant as follows: Count 1, Attempted Carjacking (18 U.S.C. § 2119(1)); Count 2, Using and Carrying a Firearm During and in Relation to a Crime of Violence, and Possession of a Firearm in Furtherance of Such Crime, Brandishing and Discharging Said Firearm (18 U.S.C. § 924(c)(1)(A)(ii) and (iii)); Count 3, Felon in Possession of a Firearm and Ammunition (18 U.S.C. § 922(g)(1)); and Count 4, Felon in Possession of a Firearm and Ammunition (18 U.S.C. § 922(g)(1)). (Id.) Counts 1, 2, and 3 allegedly occurred on February 17, 2018, while Count 4 allegedly occurred on April 23, 2018, and involved a different firearm than in Count 3. Defendant moves to sever the trial of Count 4 from the remaining Counts pursuant to Fed. R. Crim. P. 8(a) and 14, and the Fifth and Sixth Amendments to the United States Constitution.

         I. Standard of Review

         Federal Rules of Criminal Procedure 8(a) and 14 govern the joinder of offenses in a criminal trial. Rule 8(a) provides that an indictment may

charge a defendant in separate counts with 2 or more offenses if the offenses charged--whether felonies or misdemeanors or both--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.

         If the United States properly joins two or more offenses under Rule 8(a), the joinder is also subject to scrutiny under Rule 14(a), which provides: “[i]f the joinder of offenses … in an indictment … appears to prejudice a defendant …, the court may order separate trials of counts . . . or provide any other relief that justice requires.” In determining whether to grant a motion to sever, courts 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); United States v. Dirden, 38 F.3d 1131, 1140 (10th Cir. 1994). “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) (quoting United States v. McConnell, 749 F.2d 1441, 1444 (10th Cir. 1984)).

         II. Discussion

         In deciding the instant motion, the Court first considers whether the United States properly joined Count 4 pursuant to Rule 8(a). If the United States properly joined Count 4, the Court proceeds to consider whether the joinder prejudices Defendant, thereby justifying a severance under Rule 14.

         A. Whether the United States Properly Joined Count 4 under Rule 8(a)

         Defendant argues that nothing other than Defendant connects Counts 1, 2, and 3 with Count 4. In other words, Defendant argues that the United States did not properly join Count 4 with Counts 1, 2, and 3 because the Counts do not meet any of the disjunctive conditions under Rule 8(a). This determination is a fact intensive inquiry. United States v. Bailey, 952 F.2d 363, 365 (10th Cir. 1991).

         In United States v. Hawkins, the Fourth Circuit upheld joinder of two separate bank robbery charges based on the “same or similar character” prong of Rule 8(a). 776 F.3d 200, 209 (4th Cir. 2009). The Hawkins Court analyzed similar cases in which other courts upheld joinder of multiple counts alleging violations of the same statute. Id. (citing United States v. Rousseau, 257 F.3d 925, 929 (9th Cir. 2001) (upholding joinder of two separate felon in possession charges brought pursuant to 18 U.S.C. § 922(g)(1), even where each count related to different firearm and incidents occurred over six months apart)). When analyzing Rousseau, the Fourth Circuit noted that Rousesau presented “an unremarkable example of offenses of the ‘same or similar character' when the defendant is charged only with multiple violations of the same statute.” Id.

         Similarly, the Indictment here charges Counts 3 and 4 as multiple violations of the same statute, committed approximately two months apart and involving different firearms. The Court concludes Counts 3 and 4 are of “the same or similar character, ” properly joined under Rule 8(a).

         B. Whether Joinder Will Prejudice Defendant Under Rule 14(a)

         Defendant further argues that joinder of Counts 1, 2, and 3 with Count 4 will prejudice him. Defendant bears the burden of showing that joinder would cause actual prejudice to his defense that outweighs the expense and inconvenience of separate trials, and that joinder will threaten to or actually deprive him of his right to a fair trial. United States v. Thomas, 849 F.3d 906, 911-12 (10th Cir. 2017). The Tenth Circuit has found no actual prejudice where, for example, (1) the evidence was not too confusing or overlapping; (2) the offenses took place on different dates at different locations, and different witnesses ...


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