United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
September 16, 2019, Defendant Fernando Topete-Madrueno filed
an OPPOSED MOTION TO SEVER COUNT 5 OF THE SUPERSEDING
INDICTMENT (Doc. No. 69) (âMotionâ) requesting that the Court
order two trials on the charges against him. At the September
16, 2019 pre-trial conference, the United States opposed the
Motion arguing that that Defendant has not demonstrated
sufficient prejudice to warrant the expense and inconvenience
of separate trials. At the hearing, Marshall Ray represented
Defendant, who was present; Mark Pfizenmayer represented the
United States. Having carefully considered the briefing and
the controlling law, the Court will grant Defendantâs Motion.
December 19, 2018, a federal grand jury returned an
indictment charging Defendant with (1) Possession with Intent
to Distribute 50 Grams and More of Mixture and Substance
Containing Methamphetamine in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(B), (2) Possession with Intent to
Distribute Heroin in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(C), (3) Possession with Intent to Distribute
Cocaine in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B), and (4) Possession of a Firearm in the Furtherance
of a Drug Trafficking Offense in violation of 18 U.S.C.
§ 924(c)(1)(A)(i). See REDACTED INDICTMENT
(Doc. No. 14). On August 26, 2019, a federal grand jury
returned a superseding indictment charging Defendant with (1)
Possession with Intent to Distribute 50 Grams and More of
Mixture and Substance Containing Methamphetamine in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(B), (2) Possession
with Intent to Distribute Heroin in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C), (3) Maintaining a
Drug-Involved Premises in violation of 21 U.S.C. §
856(a), (4) Possession of a Firearm in the Furtherance of a
Drug Trafficking Offense in violation of 18 U.S.C. §
924(c)(1)(A)(i), and (5) Prohibited Person in Possession of a
Firearm and Ammunition in violation of 18 U.S.C. §§
922(g) and 924.
United States brought these charges in connection with a drug
sting operation investigating the Samaniego-Villa Drug
Trafficking Organization (SVDTO). See UNITED
STATES’ RESPONSE TO DEFENDANT’S MOTION TO
SUPPRESS EVIDENCE (Doc. No. 36, pp. 3–6). The United
States executed a search warrant for 9000 Zuni SE, Trailer
D-23, Albuquerque, New Mexico to find evidence of any drug
dealing by an alleged SVDTO operative, Bladimir Angulo.
Id. According to the United States, agents executing
the warrant found the Defendant asleep in a bed, as well as a
bag of a white powdery substance and a black handgun on the
nightstand next to the bed. Id. at 6. Their search
of the remainder of the trailer “revealed distribution
quantities of methamphetamine and heroin, as well as
distribution paraphernalia.” Id. Agents also
found “three tinfoil balls of heroin along with
documents with the defendant’s name on them” in a
vehicle parked outside the trailer. Id.
requests severance of Count 5, Prohibited Person in
Possession of a Firearm and Ammunition in violation of 18
U.S.C. §§ 922(g) and 924(c), for two reasons.
First, to prove Count 5, the United States will have to show
that the Defendant had previously been convicted of a felony
when in possession of the firearm. Motion at 5.
Alternatively, the United States will have to prove
Defendant’s immigration status, despite the fact that
this Court ordered that the United States “must not
elicit evidence or make reference to Defendant’s
immigration status in its case-in-chief.” See
ORDER GRANTING UNOPPOSED MOTION IN LIMINE TO EXCLUDE
REFERENCE TO DEFENDANT’S IMMIGRATION STATUS (Doc. No.
Rule of Criminal Procedure 8(a), which governs the joinder of
The indictment or information may charge a defendant in
separate counts with 2 or more offenses if the offenses
charged-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.
Fed. R. Crim. P. 8(a). Offenses properly joined under Rule
8(a) are typically tried together. A district court, however,
possesses the authority to order separate trials on separate
offenses “or provide any other relief that justice
requires” if joinder of the offenses “appears to
prejudice a defendant or the government.” Fed. R. Crim.
P. 14(a). A defendant seeking severance of offenses carries
the heavy burden of showing real prejudice from the joinder
of the counts, such as “a serious risk that a joint
trial would compromise a specific trial right . . . or
prevent the jury from making a reliable judgment about guilt
or innocence” on a specific count. United States v.
Clark, 717 F.3d 790, 818 (10th Cir. 2013). The Tenth
Circuit has acknowledged that:
The joinder of multiple offenses in a single trial may result
in prejudice to a defendant because the jury may use the
evidence of one of the crimes charged to infer a criminal
disposition on the part of the defendant from which is found
his guilt of the other crime or crimes charged. The jury may
also confuse or cumulate the evidence of the various crimes
charged and find guilt when, if considered separately, it
would not so find.
Lucero v. Kerby, 133 F.3d 1299, 1314 (10th Cir.
1998) (internal citations omitted); see also United
States v. Muniz, 1 F.3d 1018, 1023 (10th Cir. 1993)
(“When joinder of offenses is based upon their
‘same or similar character, ’ the prejudice to
the defendant is more likely since proof of one crime may
tend to corroborate the commission of the other crime in
violation of the evidentiary rules against evidence of a
general criminal disposition or propensity to commit
crime.”). At the same time, however, the Tenth Circuit
has indicated that instances where spillover prejudice
necessitates severance are rare. See, e.g. United States
v. Hollis, 971 F.2d 1441, 1457 (10th Cir. 1992)
(“The district court was not required to sever the
counts simply because the cumulative effect of evidence of
similar misconduct might potentially prejudice the
evaluating a Rule 14(a) challenge to the joinder of similar
but unrelated charges, the district court must first weigh
the risk that the joint presentation of evidence will, given
the particular facts, deprive the defendant of a fair trial.
See Clark, 717 F.3d at 818. Second, if the court is
convinced that a serious risk of prejudice exists, it must
then consider the appropriate remedy. A showing of prejudice
under Rule 14(a) does not automatically require severance.
Rule 14(a) leaves “the tailoring of any relief to the
trial court’s discretion.” United States v.
Hill, 786 F.3d 1254, 1273 (10th Cir. 2015). In many
cases, instead of severing counts, a court may cure prejudice
caused by joinder by giving a limiting instruction to the
jury directing it to individually consider the evidence
relevant to each count. Id.; see also United
States v. Tucker, 502 F. App’x 720, 726 (10th Cir.
2012) (jury instructions cured any prejudice caused by trying
crimes together because the court “directed the jury to
separately consider the evidence concerning the distinct
counts of the indictment and admonished the jurors to not
permit their verdict concerning one count to control their
verdict concerning any of the other counts of the
indictment”). However, in any particular case, granting
or denying a severance under Rule 14(a) “generally lies
within the sound discretion of the trial court.”
Hill, 786 F.3d at 1272.
relevant here, courts should recognize a high risk of undue
prejudice whenever joinder of counts allows evidence of other
crimes to be introduced in a trial of charges with respect to
which the evidence would otherwise be inadmissible.
United States v. Martinez, 2019 WL 3719073, at *3
(D.N.M. 2019). The defendant in Martinez, like the
Defendant here, was charged under 18 U.S.C. § 922(g).
The court distinguished two scenarios with these types of
charges: cases where defendants stipulated to the prior
felony conviction and the jury would not hear the details of
that conviction, compared to cases where the government needs
to introduce evidence of the prior conviction to prove its
case. Id. For the former, a defendant will likely
face no risk of prejudice since the jury needs no additional
evidence about the prior conviction. Id. In the
latter scenario, not only would this additional evidence
generally be inadmissible propensity evidence, but it also
raises the risk of possible prejudice that the evidence
needed to prove the other charges would not carry.
Id. at *4. The court concluded that ...