United States v. Barber

901 F. Supp. 2d 1119, 2012 WL 5382459, 2012 U.S. Dist. LEXIS 157300
CourtDistrict Court, N.D. Iowa
DecidedNovember 2, 2012
DocketNo. CR12-4077-MWB
StatusPublished

This text of 901 F. Supp. 2d 1119 (United States v. Barber) is published on Counsel Stack Legal Research, covering District Court, N.D. Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Barber, 901 F. Supp. 2d 1119, 2012 WL 5382459, 2012 U.S. Dist. LEXIS 157300 (N.D. Iowa 2012).

Opinion

ORDER

LEONARD T. STRAND, United States Magistrate Judge.

Dominic Barber’s motion (Doc. No. 49) for severance of trial. Plaintiff the United States of America the “Government” has filed a resistance (Doc. No. 50). None of the co-defendants have responded to the motion. No party has requested oral argument and, in any event, the court finds [1121]*1121that oral argument is not necessary. The motion is fully submitted.

BACKGROUND

The defendants are charged by indictment with defrauding the federal Farm Service Agency (“FSA”) by converting property that was pledged as collateral to secure certain FSA loans. The joint trial of all four defendants is currently scheduled to begin December 3, 2012.

The indictment contains five counts:

Count 1 As against all defendants— conspiracy to conceal, remove, dispose of, and covert pledged property in violation of 18 U.S.C. § 658.
Count 2 As against defendants Rex and Dominic1, conversion of pledged property in violation of 18 U.S.C. §§ 658 and 2.
Count 3 As against defendants Rex and Jeremy, conversion of pledged property in violation of 18 U.S.C. §§ 658 and 2.
Count 4 As against defendants Rex and William, conversion of pledged property in violation of 18 U.S.C. §§ 658 and 2.
Count 5 As against defendant Rex, making a false statement for purposes of influencing the FSA in violation of 18 U.S.C. § 1014.

See Doc. No. 5. In general terms, the indictment alleges that defendants Rex, William and Jeremy were obligors under various FSA loans. To secure those loans, they entered into agreements granting the FSA liens on various assets, including livestock, equipment and real property. The FSA then issued lien notices to banks, sale barns, implement dealers and others to advise them of the FSA’s interest in assets owned by Rex, William and/or Jeremy.

The indictment further alleges that the defendants conspired to engage in various schemes to deprive FSA of its interest in certain assets. With regard to Dominic, the indictment alleges that he sold livestock belonging to Rex, William and/or Jeremy under his own name. Because Dominic had no FSA loans, buyers of livestock sold under his name would have no reason to believe that the livestock was subject to any FSA liens. Specifically, for example, the indictment alleges that Dominic sold Rex’s livestock under Dominic’s name on January 26, 2008, and then transferred the proceeds to Rex.

Dominic contends he would be unfairly prejudiced by a joint trial. He argues that certain statements made by Rex also incriminate Dominic and that the introduction of Rex’s statements during a joint trial would violate Dominic’s rights under the Sixth Amendment’s Confrontation Clause. He also argues that there is a “spillover” issue, as evidence offered against Rex will create confusion and will influence the jury’s evaluation of the charges against Dominic.

ANALYSIS

Federal Rule of Criminal Procedure 14(a) allows the court to grant a severance of defendants if it appears that a defendant or the Government is prejudiced by a joinder. The grant or denial of a motion to sever is left to the court’s discretion. See, e.g., United States v. Mickelson, 378 F.3d 810, 817 (8th Cir.2004). The Supreme Court has held that the joinder and severance rules “are designed to promote economy and efficiency and to avoid a multiplicity of trials, so long as these objectives can be achieved without substantial prejudice to the right of the defendants to [1122]*1122a fair trial.” Zafiro v. United States, 506 U.S. 534, 540, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) (internal quotations omitted).

A defendant seeking severance must show “real prejudice,” that is, “something more than the mere fact that he would have had a better chance for acquittal had he been tried separately.” United States v. Blaylock, 421 F.3d 758, 766 (8th Cir.2005)(quoting United States v. Oakie, 12 F.3d 1436, 1441 (8th Cir.1993)). A defendant can demonstrate real prejudice by showing either (a) his defense is irreconcilable with that of his co-defendant(s) or (b) the jury will be unable to compartmentalize the evidence as it relates to the separate defendants. Mickelson, 378 F.3d at 818; see also United States v. Washington, 318 F.3d 845, 858 (8th Cir.2003); United States v. Jackson, 64 F.3d 1213, 1217 (8th Cir.1995). In addition, the Supreme Court has recognized that a defendant is deprived of his rights under the Confrontation Clause when a co-defendant’s confession that incriminates both defendants is introduced at their joint trial, even if the jury is instructed to consider that confession only against the nontestifying co-defendant. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

A. The Confrontation Clause

Dominic argues that his Sixth Amendment right to confront witnesses would be violated in a joint trial because the Government will introduce statements by Rex that also tend to implicate Dominic. Specifically, Dominic points to a statement by Rex that Rex “was selling cattle in Dominic’s name that did not belong to Dominic.” Doc. No. 49-1 at 5. Nothing about Rex’s statement, at least as it is described in Dominic’s motion, actually implicates Dominic. Dominic contends in this case that he did not know Rex was using Dominic’s name to sell cattle that did not belong to Dominic. Id. Further, Dominic admits that “Rex was not asked about Dominic’s knowledge or involvement in the transactions.” Id. If Rex’s statement included an allegation by Rex that Dominic knew Rex was using his name, the introduction of that statement would create a Bruton issue. However, Rex’s statement only references Rex’s own conduct, not Dominic’s knowledge or lack of knowledge.

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Related

Bruton v. United States
391 U.S. 123 (Supreme Court, 1968)
Richardson v. Marsh
481 U.S. 200 (Supreme Court, 1987)
Zafiro v. United States
506 U.S. 534 (Supreme Court, 1993)
United States v. Allen Scott Jackson
64 F.3d 1213 (Eighth Circuit, 1995)
United States v. David Joseph Mickelson
378 F.3d 810 (Eighth Circuit, 2004)
United States v. Eugene Arthur Blaylock
421 F.3d 758 (Eighth Circuit, 2005)
United States v. Al-Esawi
560 F.3d 888 (Eighth Circuit, 2009)
United States v. Spotted Elk
548 F.3d 641 (Eighth Circuit, 2008)

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Bluebook (online)
901 F. Supp. 2d 1119, 2012 WL 5382459, 2012 U.S. Dist. LEXIS 157300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-barber-iand-2012.