USA v. Oxford et al

DEC 1 2822
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
UNITED STATES OF AMERICA, 1:22-CR-10047-01-CBK
Plaintiff, MEMORANDUM OPINION
vs.
AND ORDER
KIMBERLY DALE OXFORD,
Defendant.
Defendant and co-defendant Robert Joseph Holstein, Jr. were charged in a two-count
indictment with distribution of a controlled substance, fentanyl, resulting in serious bodily injury
and conspiracy to distribute a controlled substance, fentanyl. Defendant Oxford has filed a
motion to sever defendants for trial pursuant to Fed. R. Crim. P. 14(a). Although not stated in
her motion, defendant also argues in her brief that the defendants were improperly joined for trial
in violation of Fed. R. Crim. P. 8(a).
I. Joinder.
Pursuant to Fed. R. Crim. P. 8(b),joinder of defendants in an indictment is proper "if
they are alleged to have participated in the same act or transaction, or in the same series of acts
or transactions, constituting an offense or offenses." "There is a preference in the federal system
for joint trials of defendants who are indicted together." Zafiro v. United States. 506 U.S. 534,
537, 113 S. Ct. 933,937,122 L. Ed. 2d 317(1993). In this case, both defendants are charged in
both counts ofthe indictment with having committed the identical crimes, conspiracy to
distribute fentanyl and a single act of distribution on a certain date. "It is the well-settled rule in
this circuit that when all ofthe defendants charged in an indictment are part of a single common
conspiracy joinder under Rule 8(b) is proper." United States v. Mendoza. 876 F.2d 639,643(8th
Cir. 1989). Further, there can be no question that it is proper to join both defendants when they
are both alleged to have participated in the same act of distributing fentanyl.
II. Severance.
Pursuant to Fed. R. Crim. P. 14(a), if the consolidation of defendants for trial appears to
prejudice a defendant, the Court may order separate trials. United States v. Escobar. 909 F.3d
228, 242(8th Cir. 2018). Defendant contends that severance is necessary in this case because
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the co-defendant gave a statement implicating defendant and such claim would not be subject to
cross-examination if the co-defendant chooses not to testify.
In conspiracy trials, our cases have tended to favor trying coconspirators jointly absent
demonstrated prejudice. We will not reverse a denial of a motion to sever unless the
appellant demonstrates an abuse of discretion resulting in clear prejudice. Generally,
persons charged in a conspiracy or jointly indicted on similar evidence from the same or
related events should be tried together. The mere fact that one defendant tries to shift
blame to another defendant does not mandate separate trials, as a codefendant frequently
attempts to 'point the finger,' to shift the blame, or to save himself at the expense ofthe
other.
United States v. Lewis. 557 F.3d 601,609(8th Cir. 2009)(internal quotations and citations
omitted).
"The presumption against severing properly joined cases is strong. It is not enough that a
defendant thinks [her] chances for acquittal would be better in a separate trial. United States v.
Delpit, 94F.3d 1134, 1143 (8th Cir. 1996)(citins Zafiro. 506 U.S. at 540, 113 S.Ct. at 938-39).
"This presumption can only be overcome if the prejudice is 'severe or compelling.'" United
States V. Lewis, 557 F.3d at 609(auotins United States v. Crumley. 528 F.3d 1053, 1063 (8th
Cir.2008)). "Severance is not required merely because evidence that is admissible only against
some defendants may be damaging to others." United States v. Mallett. 751 F.3d 907,917(8th
Cir. 2014).
A court will permit severance only "upon a showing ofreal prejudice to an
individual defendant.... Prejudice to the defendant must be both "real" and
"clear"... A demonstration of prejudice requires the defendant to demonstrate
some appreciable chance that [she] would not have been convicted had the
separate trial [she] wanted been granted. That is, the defendant must show
something more than the mere fact that [her] chances for acquittal would have
been better had [she] been tried separately. [She] must affirmatively demonstrate
that the joint trial prejudiced [her] right to a fair trial. To satisfy the real
prejudice standard, a defendant may show that [her] defense is irreconcilable
with the defense of[her] codefendant or that the jury will be unable to
compartmentalize the evidence as it relates to separate defendants. The
defendant carries a heavy burden in making this showing.
United States v. Pavton. 636 F.3d 1027, 1037(8th Cir. 2011)(internal quotations and citations
omitted).
We have stated that the existence of antagonistic defenses does not require severance
unless the defenses are actually irreconcilable. A defense is irreconcilable when the jury,
to believe the core of one defense, must necessarily disbelieve the core of another.
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Antagonistic defenses require severance only when there is a danger that the jury will
unjustifiably infer that this eonfliet alone demonstrates that both.are guilty.
United States v. Lewis, 557 at 609-10(eleaned up).
Defendant has identified no antagonistic defenses requiring severanee. Instead, she
eontends that eo-defendant's statements to investigators which incriminated her could be
admitted by the government in their ease in ehief. If co-defendant does not testify, defendant
would be unable to ehallenge eo-defendant's statements. The identical Confrontation Clause
coneem was address by the United States Supreme Court in Bruton v. United States. 391 U.S.
123, 88 S.Ct. 1620, 20 L.Ed.2d476(1968).
In Bruton,the Supreme Court held that the admission of a nontestifying defendant's
statement inculpating a codefendant violates the eodefendant's Confrontation Clause
rights, notwithstanding a curative instruction.
United States v. Lewis. 557 F.3d 601,611 (8th Cir. 2009)(citins Bruton. 391 U.S. at 135-36.
"[Tjhere is no Confrontation Clause violation when the defendant's name and existence
are excised from the statement and limiting instruetions are given, even though the eonfession
might implieate the defendant when linked to other evidence." United States v. Williams 429
F.3d 767, 772-73 (8th Cir. 2005)(citins Riehardson v. Marsh. 481 U.S. 200, 107 S.Ct. 1702,95
L.Ed.2d 176 (1987)). However,"notwithstanding eautionary instructions and neutral redaetions,
Bruton is violated when the faet that a statement had been redaeted is so obvious as to lead the
jury through ordinary inferences directly to a defendant." United State.s v. Williams. 429 F.3d
767, 773 (8th Cir. 2005)(citins Grav v. Marvland. 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d
294(1998)).
Severance is not required in this ease. No evidenee that violates Bruton will be allowed.
Ifthe government seeks the admission ofthe co-defendant's statements, the government must, in
advanee of trial, provide the Court a eopy ofthe statements, along with a proposed redacted
version ofthe statements. If the redacted version violates Grav. the co-defendant's statement
will not be admitted at all. Only a redaeted version that is not obviously altered to remove the
defendant's name and existence will be admissible.
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ORDER
Now,therefore,
IT IS ORDERED that defendant's motion. Doc. 33, to sever defendants for separate trials
is denied.
DATED this 17th day of December,2022.
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
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