Opinion
Crim. No. 02-75 (01-03) (ADM/RLE)
April 23, 2002
ORDER and FINDINGS AND RECOMMENDATION
I. Introduction
This matter came before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. § 636 (b)(1)(A) and (B), upon the following Motions:
1. The Motion of the Defendant Robert George Head, Jr. ("Head") and of the Defendant Jeffrey Lee Dolson ("Dolson") for Discovery and Inspection.
2. The Motion of Head to Compel Disclosure, and Supplemental Motion to Compel Disclosure, of Evidence Favorable to the Defendant.
Consistent with our usual practice, we advised the Defendant that, absent a showing of cause that would commend broader discovery, discovery would be granted to the full extent contemplated by Rules 16 and 26.2, Federal Rules of Criminal Procedure, by Brady and its progeny, and by the Jencks Act. The Defendants made no such showing, and the Government has not opposed this Motion to the extent it conforms with our usual practice. Accordingly, the Motions are granted.
The Government has acknowledged its obligations under Giglio v. United States, 405 U.S. 150 (1972), Brady v. Maryland, 373 U.S. 83 (1963), and their progeny, and has advised that this information will be produced no later than three days prior to the Trial. Therefore, these Motions are granted, but our grant of the Motions should not be construed as accepting the Defendants' characterization of each of the categories of information, which are enumerated in their Motions, as properly constituting Brady or Giglio materials. Accordingly, in generally granting the Motion, we necessarily leave the parties, in the first instance, to determine what evidence requires production, pursuant to Brady, to Giglio, or to their off-spring.
3. The Defendants' Motions for Disclosure of Rule 404 (b) Evidence.
Our practice is to require the Government to disclose Rule 404(b) evidence upon receipt, and by no later than fourteen days prior to the Trial date. Consistent with that practice, the Government does not oppose these Motions and, therefore, the same are granted, but subject to the fourteen-day time constraint.
4. The Motion of Head to Affirm or Deny.
5. The Motion of Head for Government Agents to Retain Rough Notes.
6. The Defendants' Motions for Severance of Counts and Defendants.
7. The Motion of Dolson to Disclose Post Conspiracy Statements of Co-Defendants.
8. The Motion of Dolson to Dismiss the Indictment or, in the alternative, to Delete the alias "Jeffrey Lee Head" from the Indictment.
In this Motion, Head has requested the Government to admit or deny the use of any electronic surveillance in this case. Memorandum in Support of Motion to Affirm or Deny, at p. 1. At the Hearing, the Government denied the employment of electronic eavesdropping in investigating the charges against the Defendants. Therefore, we deny this Motion as moot.
The Government does not oppose this Motion and, therefore, the same is granted.
The Government does not oppose this Motion to the extent it seeks notice and discovery of the statements of a co-Defendant that will be offered at Trial, and acknowledges the Government's obligations under Rules 16 and 26.2, Federal Rules of Criminal Procedure, Brady, or the Jencks Act. Therefore, we grant this Motion as so caveated.
At the Hearing, the Government advised that it had no objection to striking Dolson's ahas from the Indictment, and it proposed to redact the Indictment that would be presented to the Jury at Trial. Therefore, to the extent that this Motion seeks to strike Dolson's ahas, the Motion is granted.
Dolson also seeks to have the Indictment dismissed, "on the grounds that it fails to allege all the essential elements of the offense and fails to state an offense against the United States." Motion to Dismiss Indictment; Motion to Delete AKA "Jeffrey Lee Head" From Indictment. In determining whether an Indictment has sufficiently set forth the elements of the offense charged, the Indictment will generally be deemed sufficient "unless no reasonable construction can be said to charge the offense." United States v. Covey, 232 F.3d 641, 645 (8th Cir. 2000), cert. denied, ___ U.S. ___, 122 S.Ct. 39 (2001), quoting United States v. Morris, 18 F.3d 562, 568 (8th Cir. 1994), quoting in turn, United States v. Peterson, 867 F.2d 1110, 1114 (8th Cir. 1989). Our independent review of the Indictment satisfies us that it meets this standard as it sufficiently sets forth the elements of the offenses charged, places the Defendant on fair notice of the charges against him, and enables him to assert an acquittal or conviction so as to invoke the protections of double jeopardy clause. See, Hamling v. United States, 418 U.S. 87, 117 (1974); United States v. O'Hagan, 139 F.3d 641, 651 (8th Cir. 1998). Therefore, we recommend that the portion of Head's Motion which seeks the dismissal of the Indictment be denied as without merit.
9. The Motion of Head to Suppress Statements.
10. The Motion of Head to Suppress Physical Evidence.
At the Hearing, John P. Egelhof ("Egelhof"), who is a Special Agent with the Federal Bureau of Investigation, testified that a search of a Chevy pickup truck, which had been driven by Head during the events at issue here, had been searched on January 25, 2001, pursuant to the written consent of the vehicle's registered owner, who is Head's wife. "Police may conduct a search of someone's home or person even without a warrant or probable cause if that person voluntarily consents to the search," and "[w]hether or not the consent was voluntary must be established by examining the totality of the circumstances, including "`both the characteristics of the accused and the details of the interrogation."'" United States v. Bradley, 234 F.3d 363, 366 (85th Cir. 2000), quoting United States v. Chaidez, 906 F.2d 377, 380 (8th Cir. 1990), quoting, in turn, Schneckoth v. Bustamonte, 412 U.S. 218, 226 (1973). Head has made no argument, and has adduced no evidence, that controverts Egelhof's testimony, or that so much as suggests that his wife's consent was not knowing and voluntary. Therefore, the evidence preponderates in favor of a finding that the search of the pickup truck was properly pursuant to the consent of its registered owner, and Head's Motion to Suppress the evidence uncovered in that search should be denied.
A Hearing on the Motions was conducted on April 2, 2002, at which time, Head appeared personally, and by Douglas H.R. Olson, Esq., Dolson appeared personally, and by George E. Rapich, Esq., and the Government appeared by Clifford B. Wardlaw, Assistant United States Attorney.
At the close of the Hearing, the parties requested leave to brief the Motions and, consistent with the leave granted, the last brief, on the issues before us, was received by the Court on April 11, 2002, at which time the Motions were taken under advisement. See, Title 18 U.S.C. § 3161 (h)(1)(F) and (J); Henderson v. United States, 476 U.S. 321, 330-32 (1986); United States v. Blankenship, 67 F.3d 673, 676-77 (8th Cir. 1995).
As to those Motions which remain for disposition, we deny the Defendants' Severance Motions, and recommend that Head's Motion to Suppress Statements be denied in part, and granted in part.
II. Findings of Fact
In a five-Count Indictment, Head, and the Defendant Alana Lee Brown ("Brown"), were charged with the following offenses: Count One — while aiding and abetting each other, Robbery, in violation of Title 18 U.S.C. § 2, 1151, 1153(a), and 2111; Counts Two and Three — while aiding and abetting each other, Aggravated Assault, in violation of Title 18 U.S.C. § 2, 113(a)(3), 1151, and 1153(a); and Counts Four and Five — while aiding and abetting each other, Brandishing A Firearm During A Crime of violence, in violation of Title 18 U.S.C. § 2, 924(c)(1)(a) (ii). In the same Indictment, Dolson was also charged for the offenses alleged in Counts 1, 2, and 4. These offenses are said to have occurred on or about January 19, 2002, within the exterior boundaries of the Red Lake Indian Reservation. As pertinent to these charges, and to the Motions pending before us, the operative facts may be briefly summarized.
Rule 12(e), Federal Rules of Criminal Procedure, provides that, "[w]here factual issues are involved in determining a motion, the court shall state its essential factual findings on the record." As augmented by our recitation of factual findings in our "Discussion," the essential factual findings, that are required by the Recommendations we make, are contained in this segment of our Opinion of course, these factual findings are preliminary in nature, are confined solely to the Motions before the Court, and are subject to such future modification as the subsequent development of the facts and law may require. United States v. Moore, 936 F.2d 287, 288-89 (6th Cir. 1991); United States v. Prieto-Villa, 910 F.2d 601, 610 (9th Cir. 1990).
At the Suppression Hearing, John P. Egelhof ("Egelhof"), who is a Special Agent with the Federal Bureau of Investigation, and the Case Agent in this matter, testified that he and Donovan Wind ("Wind"), who is a Criminal Investigator with the Red Lake Police Department ("RLPD"), met with Head on the afternoon of January 19, 2002, in the Criminal Investigator's office at the RLPD. At that time, Head was in Tribal custody, having been arrested at approximately 4:00 o'clock a.m., that same morning. As related by Egelhof, both he and Wind were dressed casually, although he was uncertain whether his weapon was visible. Egelhof introduced himself to Head, and informed Head that he wanted to talk to him about the events of that morning. Egelhof then advised Head that, at that time, there were no Federal charges against him, only Tribal charges. Head then stated that he did not know why he had been arrested, that he had not done anything wrong, that an Alejandro Garcia ("Garcia") had attempted to kidnap Brown, who is Head's daughter, and that he was only trying to hold Alejandro until the police arrived.
Eglehof informed Head that he was the subject of a criminal investigation which might lead to Federal charges, and that he wanted Head to provide a truthful statement. Head responded that there was no reason for him to make a statement, because he was going to go to jail regardless of whether or not he told the truth. Eglehof stated that, while it was possible that making a statement would not help him, it might help his daughter's case, as she was with Head at the time of the incidents claimed to be a robbery and an assault. Head replied that he did not "give a shit" about anyone, including his daughter, and that he wanted to be returned to his cell, which he promptly was. This exchange took approximately one to two minutes and, at no time, did Eglehof read to Head his Miranda rights.
III. Discussion A. Head's Motion to Suppress Statements.
Head seeks to suppress the statements he made to Egelhof on January 19, 2002, and claims that they were the product of custodial interrogation without the benefit of Miranda warnings. As both parties agree that Head was in custody at the time he made those statements, and that he had not been read his Miranda warning, the issue before us is whether his statements were the product of official interrogation.
1. Standard of Review. Once a suspect is in police custody and subject to interrogation, he must be informed of his constitutional right to remain silent, and to be represented by legal counsel during questioning. See, Miranda v. Arizona, supra at 473. Police Officers are not required, however, to administer Miranda warnings to everyone whom they question. See, Oregon v. Mathiason, 429 U.S. 492, 495 (1977). Rather, Miranda warnings are required for official interrogations, but only where "a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." United States v, Helmel, 769 F.2d 1306, 1320 (8th Cir. 1985), quoting Miranda v. Arizona, supra at 444; see also, Berkemer v. McCarty, 468 U.S. 420, 428-29 (1984). Nevertheless, "Miranda has no application to statements * * * that are voluntarily offered and are not a product of either express questioning or any police practice reasonably likely to evoke an incriminating response." United States v. Griffin, 922 F.2d 1343, 1357 (8th Cir. 1990), citing United States v. McGauley, 786 F.2d 888, 891 (8th Cir. 1986), and United States v. Webster, 769 F.2d 487, 492 (8th Cir. 1985). Indeed, our Court of Appeals has "repeatedly held that `[a] voluntary statement made by a suspect, not in response to interrogation, is not barred by the Fifth Amendment and is admissible with or without the giving of Miranda warnings.'" United States v. Hatten, 68 F.3d 257, 262 (8th Cir. 1995).
2. Legal Analysis. Head contends that the exchange that occurred between he and Egelhof was interrogation, as defined by the United States Supreme Court in Rhode Island v. Innis, 446 U.S. 291, 300 (1980), where the Court held that "Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent." The Supreme Court explained that interrogation did not only refer "to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Id.
Head points out that, in his testimony, Egelhof admitted that he initiated the meeting with Head for the purpose of inquiring about Head's involvement in the incidents at issue in this case. Head contends that, as a consequence, "[t]he whole discussion, including the introductory comments [made by Eglehof], were designed to get [him] to respond to [Eglehof], which he did." Memorandum in Support of Motion to Suppress Statements, at unnumbered 2. Head also argues that the fact that Egelhof responded to Head's statements further evidenced Egelhof's intent to interrogate him, noting in particular, Egelhof's comment that, if not helpful to him, Head's statement might be helpful to his daughter. The Government counters that Head was not interrogated, because the exchange between he and Egelhof was initiated by Head's question as to why he was in custody, and because Eglehof's comments were merely an attempt to inform Head of the purpose of the interview.
In Rhode Island v. Innis, supra at 301, the Supreme Court instructed Courts that, when considering whether a law enforcement agent's words or acts were such that the agent should have known that they were reasonably likely to elicit an incriminating response, the focus should be "primarily upon the perception of the suspect, rather than the intent of the police," because "Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police." However, the Supreme Court also noted that, "since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." Id. Thus, the question is whether the statements made by Egelhof would have been perceived as interrogation by a reasonable person under circumstances the same as those faced by Head. See, United States v. Taylor, 985 F.2d 3, 7 (1st Cir. 1993).
Necessarily, our analysis is case-specific. "Determining whether particular statements or practices amount to interrogation depends on the circumstances of each case, particularly whether the statements are objectively and reasonably likely to result in incriminating responses by the suspect, as well as the nature of the police statements and the context in which they are given." United States v. Allen, 247 F.3d 741, 765 (8th Cir. 2001), pet. for cert. filed (U.S., October 22, 2001). Plainly, Head did not initiate the contact with Egelhof, and Wind, as they arranged for Head's interview, in the confines of the RLPD headquarters. Head had been in custody for several hours, as he was arrested at approximately 4:00 o'clock a.m., while Egelhof testified that Head's interview occurred in the early afternoon of that same day.
We are persuaded that the statements of Head, prior to Egelhof's comment that, in speaking truthfully with Egelhof Head might assist his daughter, were not violative of Miranda. We are drawn to this conclusion because nothing Egelhof said, up to that point, was either questioning, or the equivalent of questioning. Egelhof was merely identifying himself, as well as the purposes of his questions, so as to gain Head's attention. We are unable to meaningfully distinguish the circumstances presented here, with those confronting the Court of Appeals for the First Circuit, in United States v. Genao, 281 F.3d 305 (1st Cir. 2002). In Genao, police searched a third-floor apartment with the consent of the defendant, who was functioning as the apartment's "landlord." Id. at 308. Upon finding drugs in that apartment, an investigating officer returned to the second floor of the apartment complex, showed the defendant the seized items, and stated, "We've got a problem here." Id. Before the officer could say anything else, the defendant stated, "Everything's mine;" "I don't want my wife to get in trouble."
The defendant sought to suppress his incriminating statement, but the District Court determined that the defendant's statements were not the product of official interrogation, and that determination was affirmed on appeal. As reasoned by the Court of Appeals for the First Circuit:
In light of the circumstances here, [the police officer's] remark to [the defendant] was not the functional equivalent of questioning, nor was it reasonably likely to elicit an incriminating response. The district court found that [the defendant] confessed before [the police officer] could begin reading [the defendant] his Miranda rights. This finding was not clearly erroneous in light of the record before us. In that context, [the police officer's] words are reasonably viewed as a preliminary comment intended to get [the defendant's] attention before reading him his rights and explaining that he was under arrest. * * * In addition, the remark was brief, was not worked in a particularly confrontational manner, and did not directly accuse [the defendant] of any crime or seek to inflame his conscience. Cf., United States v. Allen, 247 F.3d 741, 764-65 (8th Cir. 2001) (holding that no interrogation occurred where police told suspect, who had requested but not yet received counsel, of the unfavorable results of the lineup in which he agreed to take part without counsel being present; police remark was "a simple description of the status of the * * * investigation," not interrogation.
Id. at 311.
The very same may be said here. Egelhof did not provoke, or induce, any response by informing Head that he was investigating the incident which occurred earlier that day, and that truthful answers might assist the Defendant. of his own volition, Head advised that he did not know why he had been arrested, as he was only attempting to prevent the kidnaping of his daughter, and he did not believe that making a statement would be of assistance to him. Viewed in context, the statements of Egelhof were not confrontational, nor were they of a type that would evoke a response — they were declarative, and not interrogational. Accordingly, Head's Motion to Suppress those statements should be denied.
As our Court of Appeals has recently reiterated:
Although a promise made by law enforcement is a relevant consideration in assessing police conduct, it is only one circumstance to be considered and does not render a confession involuntary per se. [United States v.] Larry, 126 F.3d [1077], 1079 [(8th Cir. 1997)]; United States v. Kilgore, 58 F.3d 350, 353 (8th Cir. 1995) (indicating that even if the suspect had been promised some form of leniency, this circumstance alone would not render his confession involuntary). The statement to an accused that telling the truth "would be better for him" does not constitute an implied or express promise of leniency for the purpose of rendering his confession involuntary. Bolder v. Armontrout, 921 F.2d 1359, 1366 (8th Cir. 1990) (involving penalty of death); see, e.g., [United States v.] Pierce, 152 F.3d [808], 813 [(8th Cir. 1998)] (statement that it would be to the suspect's benefit if he cooperated with them is not improperly coercive); * * * Furthermore, "[a] truthful and noncoercive statement of the possible penalties which an accused faces may be given to the accused without over-bearing one's free will," even when the accused is a minor. United States v. Ballard, 586 F.2d 1060, 1063 (5th Cir. 1978).
Simmons v. Bowersox, 235 F.3d 1124, 1133 (8th Cir. 2001).
A closer question is presented by Head's response to Egelhof's reply that, while speaking with law enforcement might not assist Head, it might assist Head's daughter. Viewed objectively, the statement is plainly an entreaty to speak, for Head had already rejected an opportunity to speak as an assist to his own interests. We are persuaded, although the issue is not free from substantial doubt, that Egelhof's prompt — by invoking the penal interests of Head's daughter — was not simply declarative, but was sufficiently confrontational, or evocative, as to have been reasonably expected to generate a response from Head. We recognize that United States v. Allen, supra at 765 — a case, as we have quoted above, which was cited by the Court in Genoa — may be read as suggesting a different result, but we are not persuaded that it does.
In Allen, the defendant had invoked his right to counsel, which was followed with a comment, by an interviewing officer, that the defendant had been positively identified in a lineup, which resulted in the defendant's further statements to law enforcement. The District Court denied the defendant's Motion to Suppress his statements, and that denial was affirmed on Appeal. As explained by our Court of Appeals:
[A]lthough Allen had earlier invoked his right to counsel, we hold that informing Allen of the results of the lineup did not amount to the functional equivalent of interrogation for purposes of the Fifth Amendment. It was a simple description of the status of the ongoing investigation which, according to the government, is a routine practice in this particular jurisdiction. More importantly, it was not designed to, nor was it reasonably likely to, elicit an incriminating response from Allen. This was a statement of fact and not a plea to conscience.
Id.
While we see some parallels, between the facts here, and those presented in Allen, the comment in Allen was not evocative nor, as the Court noted, could the statement, in Allen, be reasonably viewed as a "plea to conscience." Having failed to arouse Head's interest in speaking with him in order to assist Head's own penal interests, Egelhof offered the potential for Head to assist his daughter's penal interests by speaking with him. Although Head rebuffed that proposal, we find that Egelhof's second entreaty to speak was sufficiently evocative as to serve as the functional equivalent of official interrogation. Therefore, we recommend that Head's statement to Egelhof, following Egelhof's suggestion that speaking to him could assist Head's daughter, should be suppressed.
B. The Motions of the Defendant for Severance of Counts and Defendants.
The Defendants request separate Trials from the other Defendants, and assert that a Jury may not be able to compartmentalize the evidence as to the guilt, or innocence, of each Defendant, or as to each of the Counts charged, absent a severance. Second, the Defendants claim that they might be prejudiced by evidence that is introduced against their co-Defendant, and that would be inadmissable against them in separate Trials, or by evidence which would be inadmissible in a Trial on one of the Counts, if the Counts were tried separately. Both Defendants also contend that the joinder of the Counts is improper because the Indictment alleges two separate assaults, against two separate victims, at two different times. In particular, Doland complains that joinder is improper as he was only charged with one of the two, separate assaults that have been charged in the Indictment.
1. Standard of Review. As a general proposition, the joinder of defendants in a multiple charge Indictment is permissible where the offenses, of which the defendants are charged, involve a common activity that embraces all of the charged offenses, even though every defendant has not participated in all of the activities, and has not been charged with every single offense. See, Rule 8(b), Federal Rules of Criminal Procedure; United States v. Noske, 117 F.3d 1053, 1057 (8th Cir. 1997); United States v. Delpit, 94 F.3d 1134, 1143 (8th Cir. 1996), citing United States v. Jones, 880 F.2d 55, 62-63 (8th Cir. 1989); United States v. O'Connell, 841 F.2d 1408, 1432-33 (8th Cir. 1988). Moreover, "[t]here is a preference in the federal system for joint trials of defendants who are indicted together." Zafiro v. United States, 506 U.S. 534, 537 (1993); see also United States v. Basile, 109 F.3d 1304, 1309 (8th Cir. 1997). Stated somewhat more dogmatically, "[r]arely, if ever, will it be improper for co-conspirators to be tried together." United States v. Dilan, 37 F.3d 398, 402 (8th Cir. 1994), quoting United States v. Wint, 974 F.2d 961, 968 (8th Cir. 1992); see also United States v. Basile, supra at 1309 ("A joint trial is especially compelling when the defendants are charged as co-conspirators, as is the case here."). Regardless of whether the defendants are charged as co-conspirators, "[t]he presumption against severing properly joined cases is strong." United States v. Delpit, supra at 1143.
As noted, Doland argues that, because he was only charged with one of the two assaults charged in the Indictment, joinder of the Counts is improper. However, we are convinced that the two incidents are sufficiently related to be found to involve a common activity. We have reviewed the Criminal Complaint, which was initially filed against the Defendants, to gain additional context and perspective as to the facts underlying the indicted offenses. As alleged in the Criminal Complaint, the assaults were the product of a plan, which was crafted by Doland, Head, and Brown, to rob the two victims of money and/or drugs. The assaults occurred at or near the same location, on the same day, and in close temporal proximity. Even though only two of the three charged actually implemented the plan, by aiding and assisting the other, we find no responsible basis to order separate Trials for the individual Counts of the Indictment, as there was an interconnected series of acts, and events, which prompted the charges here.
Nevertheless, even if joinder is technically proper, Rule 14, Federal Rules of Criminal Procedure, provides relief if specific prejudice is claimed to arise from a joint Trial. In this respect, Rule 14 provides:
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 of defendants or provide whatever other relief justice requires.
"In order to show prejudice, `a defendant must establish something more than the mere fact that his chance for acquittal would have been better had he been tried separately.'" United States v. Shivers, 66 F.3d 938, 940 (8th Cir. 1995), quoting United States v. Wint, supra at 965-66. A defendant "can show real prejudice either by showing that his defense is irreconcilable with the defense of his co-defendant or co-defendants or that the jury will be unable to compartmentalize the evidence as it relates to separate defendants." United States v. Jackson, 64 F.3d 1213, 1217 (8th Cir. 1995), quoting United States v. Gutherlet, 939 F.2d 643, 645 (8th Cir. 1991).
In the final analysis, "[t]o show that a district court's denial of a motion to sever was an abuse of discretion, a defendant must demonstrate that the district court's failure to sever the trials "resulted in severe or compelling prejudice,'" United States v. Koskela, 86 F.3d 122, 126 (8th Cir. 1996), and "[t]his burden is satisfied "when a defendant is deprived of an appreciable chance for an acquittal, a chance that he would have had in a severed trial.'" United States v. Melina, 101 F.3d 567, 570 (8th Cir. 1996), abrogated on other grounds United States v. Ryan, 227 F.3d 1058 (8th Cir. 2000). The burden upon the defendant, in demonstrating prejudice, is a "heavy" one. See, United States v. McGuire, 45 F.3d 1177, 1178 (8th Cir. 1995).
2. Legal Analysis. Neither of the Defendants, who have advanced a Motion to Sever, have proffered anything, in the way of a particularized showing, which would commend separate Trials of the Counts of the Indictment, or of each of the Defendants. The offenses contained in the Indictment arise from an alleged common scheme to rob the victims of money and or drugs. As our Court of Appeals has recently reiterated, "Rule 8(a) is broadly construed in favor of joinder." United States v. Rock, 282 F.3d 548, 552 (8th Cir. 2002), citing United States v. Rodgers, 732 F.2d 625, 629 (8th Cir. 1984). Moreover, neither Defendant has demonstrated that a joint Trial of the charged offenses would result in "severe prejudice." Id., quoting United States v. Crouch, 46 F.3d 871, 875 (8th Cir. 1995), cert. denied, 459 U.S. 1202 (1983); see also, United States v. Smith, 266 F.3d 902, 906 (8th Cir. 2001) ("[S]evere prejudice occurs when a defendant is deprived of "an appreciable chance' that he would have been acquitted in a severed trial."), quoting United States v. Koskela, supra at 126. Neither Defendant has made any such showing of clear prejudice.
Instead, they offer generalized, boilerplate arguments, which have been repeatedly rejected in this Circuit. Since the Defendants have failed to identify any circumstances that would suggest any prejudice owing to their joinder with the other Defendants for Trial, or by a joint Trial of the separate Counts, we deny their Motions to Sever. See, e.g., United States v. Frazier, 280 F.3d 835, 844 (8th Cir. 2002) ("We have said many times that it will be the rare case, if ever, where a district court should sever the trial of alleged co-conspirators."), citing United States v. Patterson, 140 F.3d 767, 774 (8th Cir. 1998), cert. denied, 525 U.S. 907 (1998).
NOW, THEREFORE, It is —
ORDERED:
1. That the Defendants' Motions for Discovery and Inspection [Docket Nos. 28 and 30] be GRANTED, as more fully detailed in the text of this Order.
2. That Defendants' Motions for Disclosure of Rule 404 Evidence [Docket Nos. 23 and 33] be GRANTED, as more fully detailed in the text of this Order.
3. That Defendant Head's Motion to Compel Attorney for the Government to Disclose Evidence Favorable to the Defendant [Docket No. 31] be GRANTED, as more fully detailed in the text of this Order.
4. That Defendant Head's Motion to Affirm or Deny [Docket No. 34] be DENIED, as moot.
5. That the Defendants' Motions for Severance of Counts and Defendants [Docket Nos. 26, 27, 36, and 37] be DENIED.
6. That Defendant Dolson's Motion to Compel Disclosure of Post-Conspiracy Statements [Docket No. 29] is DENIED.
7. That Defendant Head's Motion for Government Agents to Retain Rough Notes [Docket No. 35] is GRANTED.
8. That Defendant Dolson's Motion to Strike Alias [Docket No. 25] is GRANTED.
AND, It is —
RECOMMENDED:
1. That Defendant Dolson's Motion to Dismiss Indictment Docket No. 24] be DENIED.
2. That Defendant Head's Motion to Suppress Statements [Docket No. 38] be denied in part, and granted in part.
3. That Defendant Head's Motion to Suppress Physical Evidence [Docket No. 39] be denied.