United States District Court, W.D. Missouri, Southern Division
P. RUSH, UNITED STATES MAGISTRATE JUDGE
the Court is Defendant's Motion for Severance of Count I
and Count II for Trial (Doc. 51). Pursuant to Rules
12(b)(3)(B)(iv), 8(a) and 14(a) of the Federal Rules of
Criminal Procedure, Defendant moves for an order finding that
Counts I and II of the Indictment are improperly and
prejudicially joined, and severing said counts. The
Government has filed Suggestions in Opposition (Doc. 56) to
the motion, and Defendant has filed a reply (Doc. 60) in
support. Upon review, the motion will be
Rule 12(b)(3)(B)(iv), a party may raise by motion the defense
of improper joinder. Rule 8(a) governs the joinder of
offenses and permits the joinder of offenses that 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.” Additionally, Rule
12(b)(3)(D) allows a party to move to sever charges pursuant
to Rule 14, which provides for separate trials if the joinder
of offenses “appears to prejudice a defendant[.]”
the Indictment (Doc. 1) charges Defendant in two counts.
Count I alleges that between July 12, 2003 and July 1, 2007,
Defendant engaged in a sexual act, as defined in 18 U.S.C.
§ 2246(2), with “Jane Doe 1, ” who had not
attained the age of 12 years, in violation of 18 U.S.C.
§ 2241(c). Count II claims that between August 1, 2008
and October 1, 2008, Defendant knowingly transported
“Jane Doe 2” in foreign or interstate commerce,
to engage in sexual activity for which a person can be
criminally charged under the laws of the State of Missouri,
which prohibits any person from having sexual intercourse
with another person knowing that he does so without that
person's consent, in violation of 18 U.S.C. § 2421.
first argues that the offenses charged in Count I and Count
II allege facts that are not “of the same or similar
character” under Rule 8(a). Second, he contends that
because Count I involves the inflammatory and emotional
charge of sexual contact with a 5-year old child, a single
trial would prejudice him as to Count II. He also asserts
that he has prior convictions for aggravated sexual assault
of a minor, evidence of which may be admissible as to Count
I, but would not be relevant or admissible as to Count II.
Third, Defendant argues that a single trial of both counts
would prejudice his Fifth Amendment right to not testify.
Improper joinder under Rule 8(a)
8(a) governs the joinder of offenses and permits the joinder
of offenses that 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.”
The rule should be “broadly construed in favor of
joinder to promote the efficient administration of
justice.” United States v. Taken Alive, 513
F.3d 899, 902 (8th Cir. 2008).
claims the offenses charged in Count I and Count II are not
of the same or similar character, stating that “Count I
alleges sexual contact with a 5-year old child, ” while
“Count II alleges sexual relations with an adult
person.” Due to the age difference of the alleged
victims, he argues that although consent is not an issue as
to Count I, it will be an issue in the defense to Count II.
He also states that there is no evidence that Count I and
Count II are based on the same acts or transactions, nor are
they part of a common scheme or plan.
Count I and Count II are neither based on the same act or
transaction, nor parts of a common scheme or plan. However,
the Court disagrees that the two counts are not of similar
character under Rule 8(a). Crimes of similar character are
“nearly corresponding; resembling in many respects;
somewhat alike; having a general likeness.” United
States v. Lindsey, 782 F.2d 116, 117 (8th Cir. 1986). In
United States v. Tyndall, 263 F.3d 848 (8th Cir.
2001), the defendant was charged with attempted aggravated
sexual abuse of a 13-year old girl that occurred in a car and
involved the use of a knife, and attempted aggravated sexual
abuse of a 67-year old woman that occurred in a house and
involved grabbing the woman's arm. Despite the wide age
difference between the victims, the Eighth Circuit upheld
joinder, noting that the offenses were “impulsive
crimes of opportunity where it was alleged that [the
defendant] had managed to isolate his intended
victims[.]” Id. at 850. Here, the offenses
charged are of a similar character in that they are both
based on forcible sexual assaults of victims who were in
Defendant's care. Furthermore, Defendant allegedly met
both victims at the same church, where he was their Sunday
school teacher. Based on the foregoing, the sexual assault
offenses charged in Count I and Count II are
“similar” and joinder under Rule 8(a) is
appropriate. See United States v. Bruguier, No.
11-40012-01-KES, 2011 WL 1833008 (D.S.D. May 13, 2011)
(finding joinder proper where the defendant was charged with
aggravated sexual abuse of an adult, incest, burglary, and
sexual abuse of a minor as to multiple victims).
Prejudicial joinder under Rule 14
where charges are properly joined under Rule 8, separate
trials of counts may be ordered if joinder “appears to
prejudice a defendant[.]” Fed. R. Crim. P. 14(a). Such
prejudice must be “severe, ” which occurs
“when the defendant is deprived of an appreciable
chance that he would have not been convicted in a separate
trial, and not merely when he would have had a better chance
for acquittal in a separate trial.” United States
v. Blum, 65 F.3d 1436, 1443 (8th Cir. 1995). The
defendant carries the burden of proving prejudice due to
joinder. United States v. Garrett, 648 F.3d 618, 626
(8th Cir. 2011). There is “a strong presumption against
severing properly joined counts.” United States v.
McCarther, 596 F.3d 438, 442 (8th Cir. 2010).
to Defendant, evidence of his prior convictions in Kansas for
aggravated sexual assault of a minor may be admissible as to
Count I, but would not be relevant or admissible as to Count
II. However, Federal Rule of Evidence 413(a) provides that
where a defendant “is accused of a sexual assault, the
court may admit evidence that the defendant committed any
other sexual assault.” In this matter, because the
illegal sexual activity alleged in Count II is nonconsensual
sexual intercourse, which appears to be a “sexual
assault” under Rule 413(d), evidence of Defendant's
prior convictions for aggravated sexual assault would likely
be relevant and admissible in a separate trial as to Count
II. See United States v. Tail, 459 F.3d 854, 858
(8th Cir. 2006) (upholding admission of evidence of prior
rape conviction under Rule 413).
also argues that the evidence as to Count I, alleging a
sexual act with a 5-year old child, would be “highly
inflammatory and emotional, ” and would therefore
prejudice him as to Count II. However, under Rule 413,
evidence of other sexual assaults includes not only sexual
assault convictions, but also alleged sexual assaults.
United States v. Hollow Horn, 523 F.3d 882, 887 (8th
Cir. 2008). Thus, evidence of the sexual assault alleged in
Count I could likely be introduced in a separate trial of
Count II, even if the counts were severed. For these reasons,
Defendant has failed to show the severe prejudice required
for severance under Rule 14.
Fifth Amendment ...