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United States v. Martinez

United States District Court, D. New Mexico

August 7, 2019




         THIS 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.


         On 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. § 856(a).[1]

         Mr. 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.

         In its 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.

         In a 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.

         In a 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.


         I. Legal Standard

         Rule 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).[2] 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).

         Nevertheless, 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)).

         When 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.

         Ultimately, 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 ...

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