USA v. Haynes et al
Report and Recommendation
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
REGARDING MOTION TO
SEVER COUNT II (Dkt 220) AND
MOTION TO SEVER COUNTS
V, VI, AND VII (Dkt 221)
Willie Wilson was charged with six offenses in a seven-count indictment. Wilson filed a
Motion to Sever Count II from the remaining counts (Docket no. 220) and a Motion to Sever
Counts V, VI and VII from the remaining counts (Docket no. 221). Wilson argues that evidence
presented by the United States with regard to Counts II, V, VI, and VII would be improperly
considered by the jury with respect to the other counts creating a prejudicial impact. Oral
argument or an evidentiary hearing was not requested. For the following reasons, I find that
joinder of Count II, V, VI, and VII was proper, and that severance of the charges is not
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. 1
Federal Rules of Criminal Procedure 8(a).
Joinder is the default
rule, not the exception.2 Although not defined in the rules, the Ninth Circuit has held that the
term “transaction” is to be interpreted flexibly.3 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.4
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.5 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.6 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
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.8 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.”9 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
United States v. Armstrong, 621 F.2d 951, 953 (9th Cir. 1980).
United States v. Sarkisian, 197 F.3d 966, 975-76 (9th Cir. 1999).
United States v. Vasquez-Velasco, 15 F.3d 833, 843-44 (9th Cir. 1994).
See Fed R. Crim. Pro. 14.
Armstrong, 621 F.2d at 954.
United States v. Johnson, 820 F.2d 1065, 1070 (9th Cir. 1987) (quoting Drew v. United States, 331 F.2d 85, 88
(D.C. Cir. 1964)).
United States v. Lewis, 787 F.2d 1318, 1322 (9th Cir. 1986).
Johnson, 820 F.2d at 1070.
evidence” so that evidence of one crime does not taint the jury's consideration of another
Finally, courts should construe Rule 8 liberally in favor of joinder.11
Wilson was charged, along with several co-conspirators, under a seven-count indictment
for a variety of federal offenses, including narcotics offenses, retaliating against a witness, and
attempted murder of that witness. The allegations of the conspiracy include drug transactions
which occurred at two residences in Fairbanks, Alaska: a residence on Fouts Road and a
residence on Adams Drive.
After Wilson and his co-defendants were indicted, the prosecution turned over police
reports to the defendants which were mistakenly unredacted, and contained the name of a
confidential informant. Shortly thereafter, the informant, who was being held at the Fairbanks
Correctional Center with Wilson, was allegedly assaulted by Wilson. Wilson concedes that he
did engage in conduct that caused bodily injury to the informant, but denied attempting to
murder him. Wilson filed a motion requesting that the Court dismiss Counts 1, 2, 3, 4 and 6 of
the indictment (Docket no. 188), as well as for a bill of particulars (Docket no. 219), to sever the
conduct at Fouts Road from the other conduct charged in the indictment (to sever Count II) and
to sever the retaliation and attempted murder counts from the other conduct charged in the
indictment (to sever Count V, VI, and VII).12 This Report and Recommendation will only
consider Wilson’s motions to sever at docket no. 220 and no. 221.13
Id. at 1071 (internal citations omitted).
Sarkisian, 197 F.3d at 975.
Defendant filed one motion at Docket no. 188 seeking dismissal of Counts 1, 2, 3, 4 and 6; requesting the court
order a bill of particulars; severance of the counts. Subsequently, the court divided the motion at docket no. 188 into
four docket nos. 188, 219, 220, and 221.
Although neither referenced in the indictment, nor explicitly in his motion to dismiss, the court is assuming that
Wilson is moving to sever Count II from the rest of the indictment. Count IV references the residence on Fouts
Road, with a time frame that matches the allegations in Count II. Fed. R. Crim. Pro. 14(a) only permits a court to
CONCLUSIONS OF LAW
In this case, the United States has met its burden under Rule 8(a). The United States’
contention is that the conduct that occurred at both the Fouts residence and the Adams residence
are part of a larger narcotics conspiracy.
Although Wilson disputes that assertion,”[t]he
allegations of the indictment are presumed to be true.”14 The United States alleges that Wilson
was part of a large narcotics distribution conspiracy, focused primarily on cocaine. This gave
rise to the allegations in Count II.
Additionally, joinder is proper because Wilson has made no allegations that joinder will
cause him to suffer undue prejudice.15 For instance, Wilson does not contend that trying both
drug counts together will force him to put forth conflicting defenses, that the jury would
improperly consider evidence from one count in deciding the other account, or that the jury
would improperly weigh the cumulative nature of the evidence.16 Even if such allegations were
made, joinder would not be so “manifestly prejudicial” as to outweigh the serious concerns of
judicial economy.17 Finally, if the United States’ contentions are true, it is likely that the
evidence of an on-going conspiracy would be admissible, and thus would lessen the prejudicial
impact of joinder.18
order “separate trials of counts”, not particular conduct, as Wilson is requesting. Thus, the court will construe his
motion as requesting the court to sever Count II from the rest of the indictment.
United States v. Buckley, 689 F.2d 893, 897 (9th Cir. 1982); Boyce Motor Lines v. United States, 342 U.S. 337,
343, fn. 15 (1952).
Much of Wilson’s brief focuses on the lack of evidence to support a conviction, and he uses that to justify the
prejudice which would arise if his motion to sever is denied. However, as explained in my ruling on Wilson’s
motion to dismiss, a pre-trial motion is not a proper venue to challenge the sufficiency of the evidence. See, e.g.
United States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996) (citing United States v. Mann, 517 F.2d 259, 267 (5th
Cir.), cert. denied, 424 U.S. 1087 (1976)).
See Johnson, 820 F.2d at 1070.
See Armstrong, 621 F.2d at 954.
See Johnson, 820 F.2d at 1070.
As to Wilson’s motion to sever Counts V, VI, and VII, joinder is also proper. After the
defendants were indicted, and the name of the confidential informant became known to the
conspirators, the Government alleges that there was a conspiracy to retaliate against the
informant. If the United States’ contentions are true, then the counts were properly joined as part
of a common plan or scheme.19 Like the motion to sever Count II, Wilson makes no specific
allegations of prejudice. Although Johnson set forth several types of prejudice a defendant could
suffer as a result of misjoinder, Wilson neither alleges nor makes any showing that any of those types of
prejudice would occur in his case.20 Finally, for the charge of conspiracy to retaliate against a witness,
evidence of the underlying criminal conduct may be admissible.21
For the foregoing reasons, I recommend Wilson’s motion to sever at docket no. 220 and
no. 221 be DENIED.
IT IS SO RECOMMENDED.
DATED this 14th day of September, 2011 at Fairbanks, Alaska.
__s/SCOTT A. ORAVEC____
SCOTT A. ORAVEC
United States Magistrate Judge
Pursuant to Local Magistrate Rule 6(a), either party seeking to object to this proposed
finding and recommendation shall file written objections with the Clerk of Court no later than
4:00pm on September 16, 2011. The failure to object to a magistrate judge's findings of fact
may be treated as a procedural default and waiver of the right to contest those findings on
See Fed. R. Crim. Pro. 8(a).
See Johnson, 820 F.2d at 1070.
Fed. R. Ev. 404(b); Johnson, 820 F.2d at 1070
appeal.22 The Ninth Circuit concludes that a district court is not required to consider evidence
introduced for the first time in a party's objection to a magistrate judge's recommendation.23
Objections and responses shall not exceed five (5) pages in length, and shall not merely reargue
positions presented in motion papers. Rather, objections and responses shall specifically
designate the findings or recommendations objected to, the basis of the objection, and the points
and authorities in support. Response(s) to the objections shall be filed on or before 4:00pm on
September 19, 2011. The parties shall otherwise comply with provisions of Local Magistrate
Reports and recommendations are not appealable orders. Any notice of appeal pursuant
to Fed.R.App.P. 4(a)(1) should not be filed until entry of the district court's judgment.24
McCall v. Andrus, 628 F.2d 1185, 1187-1189 (9th Cir.), cert. denied, 450 U.S. 996 (1981).
United States v. Howell, 231 F.3d 615 (9th Cir. 2000).
See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
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