United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendant Joseph
Martinez's Motion for Severance of Counts. Doc. 46. The
government filed a Response to the Motion [Doc. 48], and Mr.
Martinez filed a Reply [Doc. 52]. Mr. Martinez then filed a
Supplement in Support of his Motion. Doc. 57. The Court,
having considered the briefs, relevant law, and being
otherwise fully informed, finds that the Motion is well-taken
and accordingly will be GRANTED.
January 11, 2018, a five-Count Indictment [Doc. 1] was filed
charging Mr. Martinez with the following counts: Possession
with Intent to Distribute 28 Grams and More of Cocaine Base,
in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B); Possession with Intent to Distribute Cocaine, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C);
Felon in Possession of a Firearm, in violation of 18 U.S.C.
§ 922(g)(1); Using and Carrying a Firearm During and in
Relation to a Drug Trafficking Crime, and Possessing a
Firearm in Furtherance of Such Crime, in violation of 18
U.S.C. § 924(c); and Maintaining a Drug-Involved
Premises, in violation of 21 U.S.C. §
Martinez filed the instant Motion to sever Count 3, charging
him with Felon in Possession of a Firearm, in violation of 18
U.S.C. § 922(g)(1), from the remaining counts in the
Indictment. Doc. 46 at 1. He argues that the proof required
for the felon in possession of a firearm charge will require
presentation of evidence to the jury that he has previously
been convicted of a felony. Id. at 3. He argues that
this will prejudice him as the jury may conclude, based on
his prior conviction, that he is guilty of the instant drug
offenses simply because he is a convicted felon. Id.
He points to United States v. Muniz, 1 F.3d 1081,
1023 (10th Cir. 1993), stating that when joinder of offenses
is based upon their “same or similar character, ”
prejudice is more likely because the jury may use evidence of
one crime to infer a criminal disposition and corroborate the
commission of the other crime or crimes charged. Id.
Here, he argues, the charges of felon in possession of a
firearm, possession of a firearm in furtherance of a drug
trafficking crime, and possession with intent to distribute
are all similar in character. Id. at 4. Due to the
likelihood of prejudice, he requests that the Court sever
Count 3 from Counts 1, 2, 4, and 5. Id.
Response, the government states that all charges in the
Indictment, including the felon in possession of a firearm
charge, arose from a single search of Mr. Martinez's
house conducted on the same day, and were connected or
constitute parts of a common scheme or plan to traffic crack
and facilitate trafficking with the use and possession of
firearms. Doc. 48 at 5. The government compares the instant
case to United States v. Jones, 213 F.3d 1253,
1260-62, where the Tenth Circuit found that the felon in
possession of a firearm and ammunition charges were connected
to Mr. Jones' participation in the robberies for which he
was charged. Id. at 5-6. Thus, the government
argues, the charges are properly joined in the Indictment
because the felon in possession charge is connected to the
drug trafficking charges. Id. at 6. The government
further argues that, although granting severance is a matter
of discretion for the trial court, requiring two jury trials
would not be in the best interest of judicial economy and
expedition as two juries would be required to make
credibility determinations as to the same testimony and
facts. Id. at 7. The government argues that here, as
in Jones, the charges grew out of Mr. Martinez's
own conduct. Id. Furthermore, Mr. Martinez has a
right to stipulate to the prior felony to limit the jury from
hearing prejudicial details about his prior conviction, and
the government does not object to the Court providing a
limiting instruction to the jury. Id. at 8.
Reply, Mr. Martinez again argues that evidence of his prior
convictions, which is required to prove Count 3, is
irrelevant and inadmissible to prove the remaining counts,
and such evidence would be improper and unfairly prejudicial.
Doc. 52 at 1. Mr. Martinez distinguishes Jones,
first by pointing out that the Tenth Circuit
“emphatically recognized that the decision to grant a
severance is within the sound discretion of the trial court,
” and second by pointing out that in this case, unlike
in Jones where the conduct for the other counts also
involved the use of a firearm, the conduct charged in Counts
1, 2, and 5 are not connected to a firearm. Id. at
2. Mr. Martinez further argues that evidence of his prior
convictions would not be independently admissible pursuant to
Rule 404(b) under the Federal Rules of Evidence because it is
inadmissible propensity evidence, and furthermore, it is not
relevant pursuant to Rule 401. Id. at 2-4. He also
argues that the information is highly prejudicial because the
jury will be unable to separate and compartmentalize the
evidence of prior convictions as relevant only as to Count 3.
Id. at 7. Mr. Martinez submits that given the nature
of his prior convictions, a limiting instruction would be
insufficient to overcome the challenges to the jury
compartmentalizing the evidence and to avoid the improper and
prejudicial inferences it may make. Id. He contends
that such prejudice requires severance of Count 3 so that he
may realize his fundamental right to a fair trial.
Id. at 7-8.
Supplement in Support of his Motion to Sever counts, Mr.
Martinez provided the Court with supplemental authority. Doc.
57. On June 21, 2019, the Supreme Court held in Rehaif v.
United States, __S.Ct.__, 2019 WL 2552487 (June 21,
2019), that, in proving a felon in possession charge in
violation of 18 U.S.C. § 922(g), the government must
prove that the defendant knew that he belonged to the
relevant category of persons barred from possessing a
firearm. Id. Mr. Martinez argues that pursuant to
Rehaif, the government is now required to prove that
he knew he had been convicted of a felony offense punishable
by imprisonment exceeding one year, which may require it to
present to the jury evidence regarding the type of offense to
which he pled guilty and the type of sentence he received,
which would be unduly prejudicial. Id. at 1-2. He
contends that this “underscores the critical need to
sever the felon in possession of a firearm count from trial
on the other counts.” Id. at 2.
8(a) of the Federal Rules of Criminal Procedure permits an
indictment or information to charge a defendant in separate
counts with two 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 the
common scheme or plan.” Fed. R. Crim. P.
8(a). Under Rule 14, however, a court “may
order separate trials of counts” if joinder of offenses
appears to prejudice a defendant or the government. Fed. R.
Crim. P. 14(a).
Rule 14 “does not require severance even if prejudice
is shown.” Zafiro v. United States, 506 U.S.
534, 538-39 (1993). Instead, it is in the “sound
discretion” of the district court to prescribe the
proper relief to be granted. Id. at 539. The Tenth
Circuit has repeatedly reiterated that “severance is a
matter of discretion and not of right, ” and “the
defendant must bear a heavy burden of showing real prejudice
to his case.” United States v. McConnell, 749
F.2d 1441, 1444 (10th Cir. 1984) (quoting United States
v. Petersen, 611 F.2d 1313, 1331 (10th Cir. 1979)
(citation omitted)); see also United States v. Hall,
473 F.3d 1295, 1302 (10th Cir. 2007); United States v.
Espinosa, 771 F.2d 1382 (10th Cir. 1985) (“a
defendant must show that ‘actual prejudice'
resulted” from a trial court's decision to deny
severance). It is the defendant's burden to show that a
denial of a request for severance would result in
“actual prejudice” and not merely a better chance
of acquittal in separate trials. United States v.
Trejo, No. CR 18-1243-RB, 2018 WL 4684223 (D.N.M. Sept.
28, 2018) (citing United States v. DeLeon, 323
F.R.D. 672, 686 (D.N.M. 2017) (citation omitted)).
offenses are of the same character, “prejudice to the
defendant is more likely since proof of one crime may tend to
corroborate the commission of the other crime.”
United States v. Holland, 10 F.3d 696, 699 (10th
Cir. 1993) (quoting Muniz, 1 F.3d at 1023). The
Supreme Court in Zafiro stated that “[w]hen
the risk of prejudice is high, a district court is more
likely to determine that separate trials are necessary,
” but also noted that “less drastic measures,
such as limiting instructions, often will suffice to cure any
risk of prejudice.” 506 U.S. at 539.
the purpose of Rules 8 and 14 of the Federal Rules of
Criminal Procedure is to “promote economy and
efficiency and to avoid a multiplicity of trials, [so long
as] these objectives can be achieved without substantial
prejudice to the right of the defendants to a fair
trial.” Zafiro, 506 U.S. at 540 (quoting
Bruton v. United States, 391 U.S. 123, 131, n. 6
(1968)). A trial court's determination on a motion to
sever is ...