Opinion
CAUSE NO. 3:23cr29 DRL
2023-07-18
UNITED STATES of America, Plaintiff, v. Devante JIGGETTS et al., Defendants.
Katelan M. Doyle, Government Attorney, U.S. Attorney's Office, South Bend, IN, for Plaintiff. David Kenton Payne, Braje Nelson & Janes LLP, Michigan City, IN, Scott J. Frankel, Public Defender, Federal Community Defenders Inc., South Bend, IN, for Defendant Devante Jiggetts. Mark S. Lenyo, South Bend, IN, for Defendant Treveon Smith. Donald J. Schmid, Law Offices of Donald J. Schmid LLC, South Bend, IN, for Defendant Taibian Harris.
Katelan M. Doyle, Government Attorney, U.S. Attorney's Office, South Bend, IN, for Plaintiff. David Kenton Payne, Braje Nelson & Janes LLP, Michigan City, IN, Scott J. Frankel, Public Defender, Federal Community Defenders Inc., South Bend, IN, for Defendant Devante Jiggetts. Mark S. Lenyo, South Bend, IN, for Defendant Treveon Smith. Donald J. Schmid, Law Offices of Donald J. Schmid LLC, South Bend, IN, for Defendant Taibian Harris.
OPINION AND ORDER
Damon R. Leichty, Judge
On April 12, 2023, a grand jury returned a ten-count indictment against Devante Jiggetts, Treveon Smith, and Taibian Harris. The counts vary among the defendants, but the indictment includes six counts of Hobbs Act robbery, see 18 U.S.C. § 1951, and four counts of brandishing a firearm in furtherance of a crime of violence, see 18 U.S.C. § 924(c). The indictment charges Taibian Harris only in counts 6 and 9—robbing a Sprint store on December 18, 2022 with Treveon Smith and robbing a Metro PCS store on December 24, 2022 with Treveon Smith.
Mr. Harris asks the court to sever these two counts from the other eight. Rule 8 governs joinder in a multi-defendant criminal proceeding. Fed. R. Crim. P. 8(b). The rule is construed broadly to allow for liberal joinder and to enhance the judicial system's efficiency. United States v. Warner, 498 F.3d 666, 699 (7th Cir. 2007). Rule 8 "strikes a compromise between each defendant's right to have his own guilt considered separately," United States v. Cavale, 688 F.2d 1098, 1106 (7th Cir. 1982), and "the perceived benefits and burdens of joint trials of defendants who participate in the same series of acts or transactions," United States v. Sophie, 900 F.2d 1064, 1083 (7th Cir. 1990) (quotations omitted).
Rule 8 allows joinder of multiple defendants in a single indictment "if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Fed. R. Crim. P. 8(b). To be part of the same series of transactions, the acts charged in the indictment must be part of a common scheme or plan. United States v. White, 737 F.3d 1121, 1132 (7th Cir. 2013). The series of acts must be "logically related"—"[w]hat is necessary is a common plan or scheme, which turns on whether the transactions are interconnected in time, place, and manner." United States v. Valentino, 436 Fed. Appx. 700, 706 (7th Cir. 2011) (citation omitted); see also United States v. Scott, 413 F.2d 932, 935 (7th Cir. 1969). They "need not be the same crimes," but "crimes that well up out of the same series of such acts." United States v. Pigee, 197 F.3d 879, 891 (7th Cir. 1999) (quoting United States v. Marzano, 160 F.3d 399, 401 (7th Cir. 1998)).
The court limits its analysis to the indictment. See White, 737 F.3d at 1132. The indictment need not charge all defendants in the same counts, nor charge a conspiracy, so long as the indictment reveals a common plan or scheme. See United States v. Daniels, 803 F.3d 335, 340 (7th Cir. 2015). When a defendant has been improperly joined under Rule 8, the court must sever the charges and order separate trials. United States v. Hedman, 630 F.2d 1184, 1200 (7th Cir. 1980). When common ground exists, the law favors efficiency and presentation of the whole story once. "In joint trials, the jury obtains a more complete view of all the acts underlying the charges than would be possible in separate trials. From such a perspective, it may be able to arrive more reliably at its conclusions regarding the guilt or innocence of a particular defendant[.]" Buchanan v. Kentucky, 483 U.S. 402, 418, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987).
Mr. Harris wants all counts severed, except counts 6 and 9 against him. In counts 1-5, the indictment charges Devante Jiggetts with three robberies between November 18-28, 2022, with Treveon Smith joining the first, and with a separate § 924(c) charge for brandishing a firearm during the two robberies in counts 1 and 3. The government agrees these charges lack a common plan or scheme with the separate charges against Mr. Harris. That directs severance of counts 1-5.
Now to the question of counts 7 and 8. Count 7 alleges that Treveon Smith alone robbed a Low Bob's Tobacco store in South Bend on December 24, 2022. Count 8 charges Treveon Smith with brandishing a firearm during this robbery under § 924(c).
The government argues there is a common plan or scheme between these charges and the charges against Mr. Harris in counts 6 and 9—robbing a Sprint store on December 18, 2022 with Treveon Smith and robbing a Metro PCS store on December 24, 2022 with Treveon Smith. The government says these counts are related in time, place, and manner because the robberies occurred close in time (one the same day and one six days earlier), victimized an employee, and involved a brandished firearm. As guidance, the government advances Scott, 413 F.2d at 935, whereas Mr. Harris advances Daniels, 803 F.3d at 340.
In Scott, 413 F.2d at 933, the indictment charged three postal workers among three counts of mail destruction. The postal workers used post office elevators to steal coin pouches. Id. at 934. The indictment charged one employee with the first theft; it charged two employees as working together nine days later during a second theft; and it charged all three employees with committing the next theft three days later. Id. Postal inspectors had not seen who all was involved in the two earlier thefts to charge any more. Id. at 935. In approving joinder, the court found a sufficient connection for these acts to be construed as part of a common plan. Id. Notably the thefts shared certain acts (e.g., the same employee always removed the coin pouches from the flat truck and placed them in an empty cart); the thefts occurred at the same post office; and they occurred within a short time period (days of each other).
In contrast, Daniels held that a six-count indictment improperly joined charges against three defendants when it alleged three separate armed robberies in the Chicago area—one occurring of First National Bank on August 2, 2005, one occurring of the Bank of Lincolnwood on August 25, 2005, and one occurring of the First Bank in Chicago on December 20, 2005—by various combinations of the defendants. Daniels, 803 F.3d at 338-40. The indictment never alleged that the defendants "acted as a crew of bank robbers" or offered other facts that indicated that these armed robberies occurred as part of a common plan or scheme. Id. at 340.
Like Daniels, nothing in this indictment links the two armed robberies in counts 6 and 9 against Mr. Harris with the separate armed robbery against Treveon Smith in count 7:
• The robberies didn't occur at the same place or type of retail establishment—two cellphone stores versus a tobacco store. Saying the robberies generally occurred in South Bend is no more sufficient than saying all the armed robberies of banks in Daniels occurred in Chicagoland.
• Based only on what the indictment says, the robberies didn't exhibit the same modus operandi. The robberies in counts 6 and 9 both involved a two-man operation that thieved cell-phones and money, whereas the robbery
in count 7 was a solo job to get cigarettes. Merely saying these crimes involved a firearm and a victim would create a gross allowance to join most all armed robberies under 18 U.S.C. § 1951. After all, the three robberies in Daniels likewise involved a firearm and victims.The court accordingly must sever counts 6 and 9 from counts 7 and 8 (count 7's § 924 cousin).
• The indictment doesn't say these robberies occurred as part of a common scheme or plan or were coordinated as a crew, or offer any facts that would permit such inferences. One robbery (count 7) occurred the same day as the other against Mr. Harris (count 9), and the second against Mr. Harris (count 6) occurred six days earlier, but an "overlapping time period" alone isn't enough. See United States v. Velasquez, 772 F.2d 1348, 1353 (7th Cir. 1985) (citing United States v. Hatcher, 680 F.2d 438, 440-41 (6th Cir. 1982) (misjoinder found in indictment that charged two defendants with heroin offenses and one with unrelated cocaine offense during same time)).
That leaves for decision count 10. This count charges Treveon Smith with brandishing a firearm during the robbery in count 9 that involved both him and Mr. Smith. Mr. Smith need not be charged in this count 10 for joinder to be proper. See Fed. R. Crim P. 8(b) ("All defendants need not be charged in each count."); White, 737 F.3d at 1132 (same). Count 10 arises from the same series of acts in count 9—namely, as count 9 says, that Messrs. Harris and Smith robbed the cellular store by "actual and threatened force, violence, and fear of injury . . . by brandishing a firearm." Mr. Harris need not have brandished the firearm for him to be responsible for armed robbery. See 18 U.S.C. § 2. Count 10 is related by time, place, and means of commission and is properly joined.
CONCLUSION
Accordingly, the court GRANTS IN PART and DENIES IN PART the motion to sever [ECF 39] and DENIES AS MOOT the government's motion for an extension [ECF 41]. The court severs counts 1-5 and 7-8 from counts 6, 9, and 10 and orders separate trials. Counts 1-5 and 7-8 will proceed on the trial schedule already in place. For counts 6, 9, and 10, the court SETS trial for October 17, 2023 at 9:30 a.m. in the Robert L. Miller, Jr. Courtroom, with a final pretrial conference October 10, 2023 at 2:30 p.m. The court's scheduling orders will continue to govern deadlines for each trial [ECF 11, 26, 28].
SO ORDERED.