Opinion
Case No. C4-03-90, Docket Number: 15
January 21, 2004
ORDER DENYING DEFENDANT'S MOTION FOR SEVERANCE
Summary: Defendant filed a motion for severance of sexual assault offenses arguing that he would be prejudiced if the Indictment were not split into three separate trials. The Government resisted. The Court denied the Defendant's motion and found that evidence of all three incidents would be admissible in a trial on one of the incidents and that the Defendant had not shown specifically how his Fifth Amendment rights would be violated if the offenses were tried together.
Before the Court is the Defendent's Motion for Severance of Offenses filed on January 9, 2004, pursuant to Rule 14(a) of the Federal Rules of Criminal Procedure. The Defendant contends that he will be prejudiced if he is not granted a severance of the seven-count indictment and asks that the matter to be severed into three separate trials. The Government resists asserting that severance is not appropriate. For the reasons set forth below, the Court denies the motion.
I. BACKGROUND OF THE CASE
On December 10, 2003, the Defendant, Cuthbert Rory Flynn Fox III, was charged in a seven-count Indictment. The Indictment included four counts of abusive sexual contact and three counts of aggravated sexual abuse. The charges stem from three separate incidents involving three different victims. The first incident allegedly took place in or about December 2001; the second incident on or about April 19, 2003; and the most recent incident on or about September 28, 2003. The case is scheduled for a jury trial to commence on February 17, 2004, in Minot, North Dakota.
II. LEGAL DISCUSSION
Rule 14(a) of the Federal Rules of Criminal Procedure provides relief from prejudicial joinder of offenses as follows:
The Defendant has not alleged that the offenses were improperly joined under Rule 8(a) of the Federal Rules of Criminal Procedure. Thus, the Court will not engage in a discussion of the propriety of the joinder of these offenses. However, it is well-established that where the offenses are similar in character, occurred over a relatively short period of time, and the evidence overlaps, joinder is appropriate. United States v. Running Horse, 175 F.3d 635, 637 (8th Cir. 1999); see also Fed.R.Evid.413.
If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires.
A severance under Rule 14 should be granted "only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro v. United States, 506 U.S. 534, 538 (1993). However, a defendant is "not entitled to severance merely because they may have a better chance of acquittal in separate trials." Id. The defendant has the burden to establish that severance is warranted and necessary. Bear Stops v. United States, 204 F. Supp.2d 1209, 1215-1216 (D.S.D. 2002).
The Defendant sets forth two reasons why his charges should be severed into three separate trials. First, he contends that the likelihood that the jury will consider the evidence of each count separately when faced with the cumulative evidence regarding each incident is virtually nonexistent. Second, he contends that without severance his Fifth Amendment rights will be violated because he would likely testify as to some of the counts and invoke his right to remain silent as to other counts. The Court will address each of these concerns.
A. CUMULATIVE EFFECT OF EVIDENCE
As to the Defendant's assertion that he will be unduly prejudiced if he is not granted a severance, he has failed to show how he would be prejudiced. "Where evidence that a defendant had committed one crime would be probative and thus admissible at the defendant's separate trial for another crime, the defendant does not suffer any additional prejudice if the two crimes are tried together." United States v. Rock, 282 F.3d 548, 552 (8th Cir. 2002); United States v. Tyndall, 263 F.3d 848, 850 (8th Cir. 2001). In United States v. Tyndall, the Eighth Circuit summarized the admissibility of evidence of one sexual assault in another sexual assault case.
Although Federal Rules of Evidence 404(b) generally excludes the admission of evidence of other crimes to show the propensity to commit a particular crime, Congress excepted sexual assault cases from this rule when it enacted Federal Rule of Evidence 413. Rule 413 states that evidence of other sexual assaults by the defendant is admissible in sexual assault cases. . . .
. . . There is in this kind of case a "strong legislative judgment" that evidence of prior sexual crimes "should ordinarily be admissible," and we see no reason to hold that such evidence was not admissible here. Although the later incident certainly does not portray [the defendant] in the best light, admission of evidence regarding it was not so unfairly prejudicial as to require exclusion.United States v. Tyndall, 263 F.3d 848, 850 (8th Cir. 2001).
If the Court were to grant the Defendant's request, the result would not provide the remedy he seeks, which appears to be exclusion of any mention of the other two incidents in the trial of the remaining incident. However, the Defendant has not set forth a reason, other than a general assertion of prejudice, that would lead the Court to conclude that there is a reason to exclude the evidence of the other alleged sexual assaults. In the present case, the incidents will be easy for the jury to compartmentalize as they relate to the separate counts. Any alleged prejudicial spillover effect of the evidence is not grounds for severance under the circumstances. The Eighth Circuit has ruled that it will presume that the jury did in fact properly consider each count independently. United State v. Bear Stops, 997 F.2d 451, 549 (8th Cir. 1993). The Court finds that the Defendant is not unfairly prejudiced by trying the seven counts at the same time, given that evidence of all three incidents would be admissible in a separate trial involving one of the incidents.
B. FIFTH AMENDMENT RIGHTS
The Defendant also asserts that his Fifth Amendment rights will be nullified if the seven counts are all tried together. "In order to gain a severance, a defendant must make a persuasive and detailed showing regarding the testimony he would give on the one count he wishes severed and the reason he cannot testify on the other counts." United States v. Redding, 16 F.3d 298, 300 (8th Cir. 1994); see United States v. Smith, 919 F.2d 67, 68 (8th Cir. 1990).
The Defendant has failed to make the required detailed showing of what his testimony might have been in regards to the counts he wishes severed. The Defendant asserts that "testimony will be necessary to defeat the anticipated denial of [one of the victims] that she made any advances toward [him] that night which would lead a jury to believe that the nature of the contact, if any, was consensual." However, the Defendant has identified two other individuals who were present and who have already provided statements which could be used to "defeat" any denials made by the victim as to whether she was "making advances" toward the Defendant.
The Defendant also asserts that his "testimony may be necessary to introduce the business card given to him by [the victim] on the evening of the first incident." The business card allegedly had the statement "Call me Lova" and a phone number written on the back. While this assertion may be true, the Defendant has not provided a detailed showing of what his testimony would be in regards to the business card, such as when and where he received the business card.
Finally, assuming the Defendant were to testify as to one of the incidents, he has not set forth any reason as to why he cannot testify as to the other incidents. Accordingly, the Court finds that the Defendant has not made a persuasive and detailed showing regarding the reason he cannot testify on the other counts. The counts are properly joined and should not be severed at trial.
III. CONCLUSION
The Court finds that the Defendant, Cuthbert Rory Flynn Fox III, has not shown that he will be prejudiced by the joinder of the offenses set forth in the Indictment. Thus, the Court DENIES the Defendant's Motion for Severance of Offenses. ( Docket No. 13).