The opinion of the court was delivered by: Scott A. Oravec United States Magistrate Judge
REPORT AND RECOMMENDATION REGARDING MOTION TO SEVER COUNT I AND COUNT V FOR TRIAL (Docket No. 156)
Joe Powell was charged with two crimes in a seven-count indictment. Powell filed a Motion to Sever Counts I and V for Trial at Docket No. 156. A Response in Opposition was filed at Docket 189. Defendants Willie Wilson, Anthony Gadson, Andra Ali Taylor, and Donte Edwards were permitted to join this motion at Docket Nos. 157, 178, 179, and 210. Powell requests severance of the counts due to the prejudicial impact of evidence from Count I influencing the jury on Count V. Powell argues that he will be prejudiced because evidence presented by the United States with regard to Count I would be improperly considered by the jury with respect to Count V. Oral argument or an evidentiary hearing was not requested. For the following reasons, I find that joinder of Counts I and V was proper, and that severance is not warranted.
The Federal Rules of Criminal Procedure permit joinder of offenses if the offenses are of the same or similar character, based on the same act or transgression, or are based on acts or transactions that are connected or constitute parts of a common scheme.*fn1 Joinder is the default rule, not the exception.*fn2 Although not defined in the rules, the Ninth Circuit has held that the term "transaction" is to be interpreted flexibly.*fn3 A "series of transactions" can be shown by "the existence of a common plan, scheme, or conspiracy" or by showing that the evidence of common activity constitutes a substantial portion of proof of the joined charges.*fn4
Once the United States has demonstrated that joinder is proper pursuant to Rule 8(a), the defendant has the burden to demonstrate that the counts should be severed.*fn5 Counts should be severed if the joinder is so "manifestly prejudicial" that it outweighs the concerns of judicial economy and compels the court to sever.*fn6 Prejudice can occur to a defendant when:
"(1) he may become embarrassed or confounded in presenting separate defenses; (2) the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime or crimes charged; or (3) the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not so find."*fn7
There is also a risk of undue prejudice when joinder allows a jury to consider evidence of other crimes where the evidence would otherwise be inadmissible.*fn8 However, "[i]f all of the evidence of the separate count would be admissible upon severance, prejudice is not heightened by joinder. A trial court does not abuse its discretion in denying severance under Rule 14 under such circumstances."*fn9 Even if "evidence concerning the other crime is limited or not admissible, our primary concern is whether the jury can reasonably be expected to "compartmentalize the evidence" so that evidence of one crime does not taint the jury's consideration of another crime."*fn10 Finally, courts should construe Rule 8 liberally in favor of joinder.*fn11
Powell, Wilson, Gadson, and Edwards are charged in Count I and Count V of the seven-count indictment.*fn12 Count I alleges that Powell, along with several co-conspirators, violated 21 U.S.C. §§ 846, 841(b)(1)(B), (b)(1)(C), and (b)(1)(D), conspiracy to distribute and possess 500 grams or more of cocaine, a detectable amount of heroin, cocaine base, ecstasy, and marijuana between on or about February 1, 2009 and on or about May 22, 2011. Count V alleges that Powell, with his co-conspirators, violated 18 U.S.C. § 1513(f), for conspiracy to retaliate against an informant between on or about May 11, 2011 and May 22, 2011.
Taylor was charged in Count V and Count VII of the seven-count indictment. Count VII alleges that Taylor along with Wilson violated 18 U.S.C. § 1513(b)(2), for causing bodily injury in retaliation against an informant on or about May 21, 2011.
The United States alleges that on November 2, 2010, a confidential informant was used for a controlled drug buy operation. After the defendants were arrested, and as part of pre-trial discovery, the police report was given to the defendants. However, the reports were mistakenly not redacted to remove the confidential informant's name. The confidential informant, who was incarcerated at the Fairbanks Correctional Center on other charges, was allegedly threatened and assaulted in May of 2011.
In this case, the United States has met its burden under Rule 8(a). The United States has demonstrated that the facts it alleges constitute parts of a common scheme. The alleged drug conspiracy appeared to be an ongoing, continuous action, and the alleged attack on the confidential informant was part of an effort to prevent successful prosecution of the conspiracy. Multiple allegations by the United States support its allegations regarding the ongoing nature of the conspiracy. These allegations include the fact that the narcotics conspiracy ran from February 2009 to May 22, 2011, that the retaliation occurred between May 11 and May 22, 2011, and that four of the five defendants charged in the retaliation count are also charged in the narcotics conspiracy count. Furthermore, the name of the confidential informant became known to the defendants charged in Count ...