United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S
MOTION TO SEVER COUNTS
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.
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.
Standard of Review
Rules of Criminal Procedure 8(a) and 14 govern the joinder of
offenses in a criminal trial. Rule 8(a) provides that an
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.
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)).
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.
Whether the United States Properly Joined Count 4 under
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).
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.
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).
Whether Joinder Will Prejudice Defendant Under Rule
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 ...