Opinion
Case No. 02-40061-01-JAR
October 17, 2002
MEMORANDUM ORDER AND OPINION DENYING DEFENDANT'S MOTIONS TO SEVER COUNTS
This matter is before the Court on Defendant's Motion to Sever Counts (Doc. 35). After due consideration of the parties' filings, the Court is now prepared to rule on the motion. For the following reasons, defendant's motion is denied.
Defendant is charged with four counts of robbery, four counts of using a firearm in the commission of a robbery, one count of possessing an unregistered firearm and one count of possession of a firearm by a convicted felon. The charges stem from robberies by shotgun at the following dates and locations: Reeb's Retail Liquor on May 2, 2002; Casey's General Store on May 2, 2002,; Hollywood Video on May 4, 2002; and Amoco Station on May 4, 2002.
Defendant filed a motion to sever counts into trials on each individual robbery and a separate trial on the possession of firearms by a felon charge. He alleges that they are improperly joined under Fed.R.Crim.P. 8 or, in the alternative, their joinder is prejudicial under Fed.R.Crim.P. 14. Defendant argues that because the counts occurred over a three day period, they are not of the same act or transaction, are not part of a common scheme or plan, and that any similarities in the crimes is outweighed by the danger of undue prejudice.
The government counters that the crimes are similar in character and temporally connected and that they are part and parcel of a common plan or scheme. The government offers the close time frame, the similarity of locations robbed, all being convenience/retail establishments, and the use of a shotgun in all the robberies as evidence of their connection. Additionally, the possession by a felon charge stems from the possession of the firearm for use in the robberies.
Tenth Circuit case law falls on the side of the government on this issue. The charges are similar in character, temporally related enough to allege a common scheme or plan and defendant has not shown prejudice, outside of that arising from his own conduct, which the Tenth Circuit says is insufficient to justify severance.
In United States v. Cox, the defendant was charged with various narcotics crimes and firearms offenses. The crimes arose from three separate arrests. The arrests took place on Nov. 11, 1987; Nov. 20, 1987; and May 3, 1988. The defendant filed for severance under Rule 8. The court found that because the crimes were all drug offenses and because the firearms were possessed in order to further the drug offenses, they were not only of the same or similar character, but also were part of a common scheme or plan. The defendant then argued that if joinder was proper the counts should be severed for prejudice under Rule 14. The court found that unless defendant offered a showing that he intended to testify only to some counts and that testimony would contribute important evidence along with a strong need to refrain from testifying to the other charges, severance was inappropriate. The court went on to say that if the government has a strong case on some charges and weaker evidence on others, this does not warrant severance under Rule 14.
934 F.2d 1114 (10th Cir. 1991).
The charges in the case at hand are more temporally connected than those in Cox. Further, the nature of the crimes is similar. In Cox, the court noted that all the charges were drug and firearm offenses. Here, the defendant is charged with robberies and firearms offenses. The firearms offenses arise out of the robberies themselves.
The Tenth Circuit looks at dissimilar charges, like that of firearm charges in robbery or drug cases, and determines whether those charges come about because of the defendant's conduct relating to the other charges. In United States v. Gregg, the defendant was charged with bank robberies as well as a charge of felon in possession of a firearm. The Tenth Circuit found severance inappropriate where "both counts grew out of the defendant's own conduct on the occasion of the bank robbery . . . ." The court went on to say that even if the counts were severed, the jury would hear about all of the defendant's past robberies as well as those robberies after the date of each charged offense.
803 F.2d 568 (10th Cir. 1986).
A similar argument was made in United States v. Chee. There, the defendant argued that joining the counts was the equivalent of allowing impermissible evidence of prior bad acts in evidence. The court disagreed. The court found that even if separate trials were had, the other counts would have come in under the scope of Fed.R.Evid. 404(b) as prior wrongs. This is exactly the issue faced in this case. Even if defendant had separate trials for each robbery and one for the firearms charge, the other crimes would come in as relevant evidence of prior wrongs.
173 F.3d 864, *2 (10th Cir. May 3, 1999) (table in Westlaw).
The defendant's motion also argues that by joining the charges together, the jury might infer guilt as to one count based on evidence or guilt as to another count. The Tenth Circuit has said "the mere fact that a defendant may have a better chance for acquittal by separate trials of charges is not sufficient to require severance." In United States v. Valentine, the defendant was charged with narcotics and firearms offenses. The defendant argued that the jury might improperly infer guilt on the gun charge because of the drug charges; the logic being that drug dealers carry guns. The court said this was not unfair prejudice where the charges are related because of the defendant's own conduct.
706 F.2d 282, 290 (10th Cir. 1983).
Id.
Id. at 290.
Additionally, in United States v. Taylor, the Tenth Circuit rejected the argument that a jury was unable to compartmentalize the evidence for each joined count. The defendant in Taylor argued that he was convicted on "spillover" evidence from stronger counts. The court found no evidence of this in the record. In the matter at hand, there is nothing to suggest that a jury cannot compartmentalize the evidence on each count and render a finding of guilty or not guilty, without inferences from the other counts.
800 F.2d 1012, 1017 (10th Cir. 1986).
The defendant has not presented any grounds that warrant severing his charges. The decision in Cox showed a much larger time span and disconnect between the charges than is present here and severance was still not necessary in that case. The defendant's motion is denied as the charges are the same or similar in character, are part of a common scheme or plan and he is not prejudiced by their joinder.
IT IS THEREFORE BY THIS COURT ORDERED that the defendant's Motion to Sever (Doc. 35) is denied.