USA v. Zendejas et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION
United States of America,
Plaintiff,
vs.
Kelly Dean Overby,
Defendant.
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ORDER DENYING SEVERANCE
Criminal Case No. 3:06-cr-132-05
Before the Court is Defendant’s motion to sever trial (Doc. #74). The government filed a
response opposing severance (Doc. #83). 	At a February 7, 2007 status conference, Defendant
waived oral argument on this matter.
Generally, people jointly indicted on similar evidence from the same or related events should
be tried together. United States v. Lara, 891 F.2d 669, 671 (8th Cir. 1989). In fact, in the case of
conspiracy, it is rarely, if ever, improper to try co-defendants jointly. United States v. Drew, 894
F.2d 965, 968 (8th Cir. 1990). 	The Court may, however, sever one or more defendants jointly
indicted if consolidation for trial appears to prejudice a party. Fed. R. Crim. P. 14(a). The Eighth
Circuit recently explained:
Fed. R. Crim. P. 14(a) entrusts the decision of whether codefendants should be
severed to the sound discretion of the trial judge. Where multiple defendants are
charged in the same indictment, there is a preference for a joint trial unless the party
moving to sever can show that the benefits are outweighed by a clear likelihood of
prejudice. Such a likelihood may be demonstrated by showing either that the jury
cannot be expected to compartmentalize the evidence with respect to different
defendants due to a “prejudicial spillover effect” between the cases against them, or
that one defendant’s defense conflicts with that of another and that the jury is likely
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to infer from this conflict alone that both are guilty. Merely showing that a separate
trial would increase the likelihood of acquittal is not sufficient.
United States v. Boone, 437 F.3d 829, 837 (8th Cir. 2006). Here, Defendant alleges severance is
warranted on two grounds. First, he argues that firearms will be introduced at trial, despite the fact
that he is not alleged to have used firearms. This, he argues, will prejudice the jury’s decision of his
guilt or innocense. 	Second, he argues that because his spouse is expected to testify at trial,
severance is required or she may not be compelled to testify. United States v. Bad Wound, 203 F.3d
1072, 1075 (8th Cir. 2000) (explaining that a person may not be compelled to testify nor foreclosed
from testifying against his or her spouse).
The government has conceded that the evidence of the shooting is prejudicial, but it argues
its prejudice is outweighed by its probative value. The Court agrees. Defendant is directly tied to
evidence supporting the firearm allegations. 	Though he may not be implicated in the actual
shooting, that evidence directly supports his involvement in the conspiracy, notably his involvement
immediately after the shooting. It appears to the Court that the evidence regarding the shooting will
be relevant whether Defendant is tried jointly with his co-defendants or severed.
The government argues that severance is not warranted on the grounds that Defendant’s wife
is expected to testify because a) she may not be Defendant’s legal spouse and b) the testimony is
expected to be voluntary. 	The Court was not presented with any evidence, affidavit, or other
documentation tending to show the presence or absence of a legal marriage between Defendant and
Ms. Wicks. However, assuming the marriage is, in fact, legal at the time of trial, Ms. Wicks may
testify only voluntarily. See Bad Wound, 203 F.3d at 1075. If her testimony must be compelled,
Defendant must be severed.
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The Court concludes that Defendant has failed to show that there is a clear likelihood that
he will suffer prejudice if tried jointly with his alleged co-conspirators. Therefore, his motion for
severance is DENIED.
IT IS SO ORDERED.
Dated this 14th day of February, 2007.
/s/ Ralph R. Erickson
Ralph R. Erickson, District Judge
United States District Court
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