USA v. Oxford et al

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 briefthat 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), ifthe 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
Case 1:22-cr-10047-CBK Document 48 Filed 01/24/23 Page 1 of 4 PageID #: <pageID>

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, 94 F.3d 1134, 1143 (8th Cir. 1996)(citing Zafiro. 506 U.S. at 540, 113 S.Ct. at 938-39).
"This presumption can only be overcome ifthe prejudice is 'severe or compelling.'" United
States V. Lewis. 557 F.3d at 609(qt/ofrng United States v. Crumlev. 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. Payton,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.
Case 1:22-cr-10047-CBK Document 48 Filed 01/24/23 Page 2 of 4 PageID #: <pageID>

Antagonistic defenses require severance only when there is a danger that the jury will
unjustifiably infer that this conflict alone demonstrates that both are guilty.
United States v. Lewis, 557 at 609-10(cleaned up).
Defendant has identified no antagonistic defenses requiring severance. Instead, she
contends that co-defendant's statements to investigators which incriminated her could be
admitted by the government in their case in chief. If co-defendant does not-testify, defendant
would be unable to challenge co-defendant's statements. The identical Confrontation Clause
concern was addressed 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 codefendant'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 existenee
are excised from the statement and limiting instruetions are given, even though the confession
might implicate the defendant when linked to other evidence." United States v. Williams. 429
F.3d 767, 772-73 (8th Cir. 2005)(citins Richardson v. Marsh. 481 U.S. 200,107 S.Ct. 1702,95
L.Ed.2d 176(1987)). However,"notwithstanding cautionary instructions and neutral redactions,
Bruton is violated when the fact that a statement had been redacted is so obvious as to lead the
jury through ordinary inferences directly to a defendant." United States v. Williams. 429 F.3d
767,773(8th Cir. 2005)(citins Grav v. Maryland. 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d
294(1998)).
Severance is not required in this case. No evidence that violates Bruton will be allowed.
Ifthe government seeks the admission ofthe co-defendant's statements, the government must,in
advance of trial, provide the Court a copy 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 redacted version that is not obviously altered to remove the
defendant's name and existence will be admissible.
Case 1:22-cr-10047-CBK Document 48 Filed 01/24/23 Page 3 of 4 PageID #: <pageID>

ORDER
Now,therefore,
IT IS ORDERED that defendant's motion. Doc. 33, to sever defendants for separate trials
is denied.
DATED thisj^^V January, 2023.
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
Case 1:22-cr-10047-CBK Document 48 Filed 01/24/23 Page 4 of 4 PageID #: <pageID>