The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court
ORDER DENYING DEFENDANT'S MOTION TO SEVER
Before the Court is the Defendant's "Motion to Sever" filed on September 22, 2010. See Docket No. 35. The Government filed a response in opposition to the motion on September 23, 2010. See Docket No. 38. The Court denies the motion to sever for the reasons set forth below.
On July 13, 2010, the defendants, Bruce B. Kills in Water, Jr. and Robin L. Iron Shield, were jointly indicted, each with a separate count of sexual abuse of a minor. See Docket No. 15. A jury trial is scheduled to begin on March 1, 2011. Iron Shield contends that he will be prejudiced if there is a joint trial for both defendants. The Government contends that the charges are properly joined and that the trial should not be severed.
Rule 8(b) of the Federal Rules of Criminal Procedure establishes that an "indictment or information may charge 2 or more defendants 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 no issue of misjoinder in violation of Rule 8. Iron Shield claims, instead, that the joinder is prejudicial and requests relief pursuant to Rule 14 of the Federal Rules of Criminal Procedure.
Rule 14 provides relief from prejudicial joinder as follows: If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires.
Fed. R. Crim. P. 14(a). A severance under Rule 14 should be granted "only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro v. United States, 506 U.S. 534, 539 (1993). However, a defendant is "not entitled to severance merely because they may have a better chance of acquittal in separate trials." Id. at 540. The defendant has the heavy burden to demonstrate real prejudice. United States v. Sandstrom, 594 F.3d 634, 644 (8th Cir. 2010). It is well-established that "[a] defendant can demonstrate real prejudice to his right to a fair trial by showing (a) his defense is irreconcilable with that of his co-defendant or (b) the jury will be unable to compartmentalize the evidence as it relates to the separate defendants." United States v. Washington, 318 F.3d 845, 858 (8th Cir. 2003) (citing United States v. Jackson, 64 F.3d 1213, 1217 (8th Cir. 1995)).
The differences between Iron Shield and Kills in Water, Jr., is that there is physical, DNA evidence allegedly found to be associated with Kills in Water, Jr. There is DNA evidence that, in essence, excludes Iron Shield as a contributor to the DNA found at the scene of the alleged crime. The victim of Kills in Water, Jr. stated that sexual intercourse occurred. The "victim" of Iron Shield has steadfastly denied any sexual intercourse between Iron Shield and herself.... In the even[t] of a joint trial, it will be highly prejudicial to Iron Shield to have evidence only applicable to Kills in Water, Jr., introduced at trial, and have the jury compartmentalize the separate evidence only against him. Iron Shield's defense that he did not commit the offense is irreconcilable with the defense of his co-defendant, Mr. Kills in Water, Jr.
A. IRRECONCILABLE DEFENSES
"[A] defense is irreconcilable when the jury, to believe the core of one defense, must necessarily disbelieve the core of another." United States v. Lewis, 557 F.3d 601, 610 (8th Cir. 2009) (brackets in original) (quoting United States v. Johnson, 944 F.2d 396, 403 (8th Cir. 1991)). "Mutually antagonistic defenses are not prejudicial per se. Moreover, Rule 14 does not require severance even if prejudice is shown; rather, it leaves the ...