United States District Court, W.D. North Carolina, Asheville Division
REIDINGER UNITED STATES DISTRICT JUDGE
MATTER is before the Court on the Defendant's Motion to
Sever Counts [Doc. 11].
18, 2017, the Defendant was charged in a Bill of Indictment
with one count of transporting a minor in interstate commerce
for the purpose of sexual activity, in violation of 18 U.S.C.
§ 2423(a) (Count One); one count of traveling in
interstate commerce for the purpose of engaging in illicit
sexual conduct, in violation of 18 U.S.C. § 2423(b)
(Count Two); and one count of illegal reentry into the United
States after having been deported and removed, in violation
of 8 U.S.C. § 1326(a) (Count Three). [Doc. 1]. The child
exploitation offenses (Counts One and Two) are alleged to
have occurred in this District on or about March 19, 2016.
[Id.]. The illegal reentry offense (Count Three) is
alleged to have occurred in this District on or about March
19 and 20, 2016. [Id.].
1, 2017, the Defendant filed the present motion, seeking to
sever Count Three from Counts One and Two of the Bill of
Indictment. [Doc. 11]. The Government opposes the
Defendant's motion. [Doc. 13].
of the Federal Rules of Criminal Procedure provides, in
pertinent part, as follows:
The indictment or information may charge a defendant in
separate counts with 2 or more offenses if the offenses
charged -- whether felonies or misdemeanors or both -- 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.
Fed. R. Crim. P. 8(a). The Court may sever the charged
offenses, however, if the joinder of such offenses
“appears to prejudice” a party. Fed. R. Crim. P.
Fourth Circuit has recognized that “[w]here offenses
are properly joined under Rule 8(a), severance of the
offenses is rare.” United States v. Hornsby,
666 F.3d 296, 309 (4th Cir. 2012). The Court should grant a
severance under Rule 14 “only if the defendant shows
that requiring him to defend against the joined offenses in
the same trial [would result] in ‘clear
prejudice.'” United States v. Cardwell,
433 F.3d 378, 387-88 (4th Cir. 2005) (quoting United
States v. Acker, 52 F.3d 509, 514 (4th Cir. 1995));
United States v. Branch, 537 F.3d 328, 341 (4th Cir.
2008) (stating that defendant seeking severance must make
“a strong showing of prejudice” resulting from
the joinder of offenses) (quoting United States v.
Goldman, 750 F.2d 1221, 1225 (4th Cir. 1984)).
the charged offenses are properly joined under Rule 8(a). The
child exploitation offenses charged in Counts One and Two are
“connected with” the illegal reentry charge
because the Defendant could not have committed these offenses
without being present in the United States. Thus, the
Defendant's illegal reentry and presence in the United
States was a critical act leading to his commission of the
offenses charged in Counts One and Two. See United States
v. Brown, 744 F.Supp. 558, 563 (S.D.N.Y. 1990) (citing
United States v. Cole, 857 F.2d 971 (4th Cir.
arguing for severance of Count Three, the Defendant argues
that, “[g]iven our country's mood regarding
immigration, it will be difficult for a jury to separate the
alleged fact of illegal status from the facts”
regarding the child exploitation counts. [Doc. 11 at 1-2].
Such argument, however, fails to establish any prejudice to
the Defendant resulting from the joinder of all three counts.
See United States v. Cavillo-Rojas, 510 F. App'x
238, 246 (4th Cir. 2013) (affirming district court's
conclusion that a “general assertion that immigration
is a highly-charged and highly-emotional issue” does
not justify severance of charge of being illegal alien in
possession of firearm from drug conspiracy charges) (internal
quotation marks omitted).
Defendant further argues that trying all three counts
together would force him “to make a difficult choice of
testifying to both or neither.” [Doc. 11 at 2]. In so
arguing, the Defendant relies on Cross v. United
States, in which the D.C. Circuit Court of Appeals found
that forcing a defendant who wishes to testify regarding one
charge to testify as to both “constitutes prejudice
within the meaning of Rule 14.” 335 F.2d 987, 989 (D.C.
Cir. 1964). The Defendant, however, makes no proffer as to
which count he would elect to assert his privilege against
self-incrimination. “Without some proffer by the
defendant as to the testimony he might wish to present on one
count, while not wishing to testify on the other, the
district court [is] left with a guessing game.”
United States v. Goldman, 750 F.2d 1221, 1225 (4th
Cir. 1984) (affirming denial of motion for severance).
of these reasons, the Defendant's motion for severance of
Count Three ...