Opinion
No. 02-40012-01-SAC
September 11, 2002.
MEMORANDUM AND ORDER
This case comes before the court on two motions filed by the defendant: Motion to Sever Count One of the Indictment, (Dk. 37), and Motion to Dismiss Count One of the Indictment. (Dk. 35). The government has filed a consolidated response to the defendant's motions. (Dk. 40). Oral argument on these motions was held on August 8, 2002.
Facts
The indictment alleges in count one that defendant knowingly made a material false statement, alleging in part that he:
signed a Topeka Housing Authority Application for Admission to Public Housing . . . representing that he had only been convicted of one felony offense, when . . . he knew he had been previously convicted of at least three additional prior felony offenses.Counts two and three charge that on two different dates, defendant knowingly made false statements regarding his income in later certifications while applying for public housing benefits. Count four charges that defendant knowingly made a false statement to another federal agency regarding his employment, in applying for food stamps.
Defendant does not dispute that he was convicted on or about December 7, 1984, of arson, burning to defraud, and insurance fraud in Florida. Nor does defendant dispute that when he completed the Topeka Public Housing application, which asked: "have you ever been convicted of a FELONY, serious MISDEMEANOR or for DRUGS?" defendant responded, "YES," but noted only his 1998 conviction for issuing worthless checks, and did not mention his 1984 felony convictions. Defendant does not contest the government's assertion that his 1984 Florida felony convictions constitute "violent criminal activity" within the meaning of that term as defined in the Topeka Public Housing standards. (Dk. 36, Exh. A).
Motion to Dismiss
Defendant's motion to dismiss count one is premised upon his belief that "only violent and drug related convictions which occur within five years of the application are permissible considerations in the selection process." (Dk. 36, p. 2). Because the convictions which defendant failed to disclose on his housing application were approximately 14 years old at the time, defendant contends that they could not have been considered by the housing authority, thus his non-disclosure of those felonies is immaterial. If a false statement is immaterial, it cannot serve as the basis for the charge of knowingly and willfully making a false and material statement, as alleged in count one. See United States v. Gaudin, 515 U.S. 506 (1995) (materiality of the false statement is an element of the offense of making a false statement under 18 U.S.C. § 1001); United States v. Meuli, 8 F.3d 1481, 1485 (10th Cir. 1993) (a false statement is material if it has a natural tendency to influence, or is capable of influencing, the decision of a tribunal in making a determination required to be made.), cert. denied, 511 U.S. 1020 (1994).
Defendant's factual premise is incorrect. The written standards of the Topeka Housing Authority, upon which both parties rely, do not state that only those convictions which occur within five years of the application are permissible considerations in the selection process. Rather, they indicate that convictions for a violent felony occurring more than five years before the application may be given consideration.
Specifically, those standards state, in relevant part:
The objective is to deny persons admission to the Public Housing Program who have engaged or are engaging in drug related and violent criminal activity and to eliminate behavior that poses a threat to the health, safety and right to peaceful enjoyment of federally assisted housing units. Id., ¶ E (Applicant Screening).
Program staff deny entry to applicants where there is reasonable cause to believe that a family member engaged in violent and/or drug related criminal activity in the previous five years . . .
Staff may deny Program entry when there is reasonable cause to believe that a family member engaged in violent and/or drug related criminal activity more than five years ago. Id., ¶ F (Standards for Denial of Admission).
. . .
Applicants are also denied assistance if they have been arrested or convicted of violent and/or drug related criminal activity violent criminal activity (sic) in the five-year period prior to the date of application. Id., ¶ G (Disqualifying Admission Factors).
These standards plainly state that assistance may be denied when a "family member" engaged in violent criminal activity more than five years prior to the application. Given that the stated objective is, in part, to screen out those who are or have been engaged in violent criminal activity, it would be unreasonable to find that the staff could not deny assistance for an applicant's own violent criminal activity more than five years prior, but could deny assistance for such acts by a family member. See generally, Akandas, Inc. v. Klippel, 250 Kan. 458, 464-65 (1992) (reasonable rather than unreasonable interpretations are favored).
Read together, the plain language of the standards quoted above provides that the agency must deny assistance to applicants who were convicted of violent and/or drug related felonies in the previous five years, and may deny assistance to applicants who were convicted of such crimes more than five years prior to their application for assistance. This is not, as defendant contends, an absolute bar to consideration of felonies older than five years, but an affirmative statement that such felonies may in fact be given consideration, in the discretion of the housing authority.
Therefore, had the housing authority known of defendant's 1984 felonies, it would have been within its discretion to deny defendant's application based thereon. Whether defendant's false statement was or was not material to the decision of the housing authority is an element of the crime which remains to be proved at trial. Defendant's motion to dismiss shall therefore be denied.
Motion to Sever
Defendant next alleges that in the event count one is not dismissed, it should be severed from the remaining three counts for purposes of trial. Proof of the elements of count one will necessarily entail proof that defendant had three prior felonies for violent crimes.
Defendant does not contend that joinder of the four counts is improper under Fed.R.Crim.P. 8, but contends that severance is required because defendant will be prejudiced by the admission of his prior felony convictions. Defendant asserts that count one appears to have been added to the superceding indictment only as part of the government's trial strategy to assure that it will be able to parade defendant's prior criminal record before the jury. See United States v. Lewis, 787 F.2d 1318, 1321 (9th Cir. 1986); United States v. Daniels, 770 F.2d 1111 (D.C. Cir. 1985). Defendant additionally contends that he may become embarrassed or confounded in presenting his defense to the separate counts, that the jury may use evidence from one crime to infer defendant's criminal disposition to commit the crime charged in another count, and that the jury may cumulate the evidence of various crimes charged and find guilt where, if considered separately, it would not do so.
Governing Law
Under Fed.R.Crim.P. 14, the court may order the separate trials of counts "`if it appears that a defendant . . . is prejudiced by a joinder of offenses.'" United States v. Levine, 983 F.2d 165, 167 (10th Cir. 1992) (quoting Fed.R.Crim.P. 14). That rule provides in pertinent part:
If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance or provide whatever other relief justice requires . . .
"In determining the merits of a motion for severance, the court must weigh the prejudice to a particular defendant caused by the joinder against the important considerations of economy and expedition in judicial interests." United States v. Mabry, 809 F.2d 671, 681 (10th Cir.), cert. denied, 484 U.S. 874 (1987), and overruled on other grounds, Mathews v. United States, 485 U.S. 58 (1988). Severance is a matter of discretion, not of right, and the defendant bears a heavy burden of demonstrating prejudice to his case. United States v. Hollis, 971 F.2d 1441, 1456 (10th Cir. 1992), cert. denied, 507 U.S. 985 (1993); see United States v. Wright, 932 F.2d 868, 876 (10th Cir.) ("[T]he defendants must make a clear showing that prejudice would result from a joint trial."), cert. denied, 502 U.S. 962 (1991). "The Supreme Court has emphasized that trial courts have `a continuing duty at all stages of the trial to grant a severance if prejudice does appear.' " United States v. Peveto, 881 F.2d 844, 857 (10th Cir.), cert. denied, 493 U.S. 943 (1989) (quoting Schaffer v. United States, 362 U.S. 511 (1960)). In establishing real prejudice, the defendant must "demonstrate that the alleged prejudice he suffered outweighed the expense and inconvenience of separate trials." United States v. Parra, 2 F.3d 1058, 1063 (10th Cir. 1993), cert. denied, 510 U.S. 1026 (1993).
Defendant cites United States v. Wacker, 72 F.3d 1453, 1471(10th Cir. 1996), for the proposition that the court must minimize the impact of evidence of the substance of a prior felony. There, the court held that whereas the fact of a defendant's prior felony conviction is material to a felon in possession charge, the nature and underlying circumstances of a defendant's conviction are immaterial, and tend only to color the jury's perception of the defendant's character, causing unnecessary prejudice to the defendant, citing Fed.R.Evid. 403. Here, unlike in Wacker, it is not only the fact of the prior felony conviction, but also the nature and underlying circumstances of that conviction which are material to the determination whether defendant committed a "violent crime," within the meaning of that term in the housing authority standards.
For that reason, the court is concerned that there is some risk of prejudice to the defendant from introduction of the prior felonies because of their similar nature to the counts alleged in the indictment. But the events on which the counts are based, although perhaps pursuant to a common plan or scheme, are not such as to create a substantial risk of jury confusion. `Neither a mere allegation that defendant would have a better chance of acquittal in a separate trial, nor a complaint of the "spillover effect" . . . is sufficient to warrant severance.'" United States v. Janus Industries, 48 F.3d 1548, 1557 (10th Cir.) (quoting United States v. Levine, 983 F.2d 165, 167 (10th Cir. 1992) (quoting United States v. Bailey, 952 F.2d 363, 365 (10th Cir. 1991)) (alteration in original), cert. denied, 516 U.S. 824 (1995). Any concern about the prejudicial spillover effect may be cured by an appropriate limiting or other instruction at trial. Defendant has not demonstrated that the alleged prejudice he will suffer outweighs the expense and inconvenience of separate trials, thus severance is not warranted under Rule 14.
IT IS THEREFORE ORDERED that defendant's motion to dismiss is denied, and that defendant's motion to sever is denied.