United States District Court, D. North Dakota
ORDER DENYING DEFENDANT'S MOTION TO
L. Hovland, District Judge
the Court is Defendant En'Chante Thurmon's motion to
sever filed on October 8, 2019. See Doc. No. 58. The
Government filed a response in opposition to the motion on
October 22, 2019. See Doc. No. 70. For the reasons
set forth below, the Court denies the motion.
5, 2019, En'Chante Thurmon and Deandre Jones were
indicted by a federal grand jury. On October 16, 2019, a
superseding indictment was returned by the grand jury,
charging both defendants with: Conspiracy to Distribute and
Possess with Intent to Distribute Controlled Substances
(Count One); Possession with Intent to Distribute Cocaine
(Count Two); Possession with Intent to Distribute
Methamphetamine (50 grams or more - mixture) (Count Three);
Possession with Intent to Distribute Heroin (Count Four);
Possession with Intent to Distribute Tramadol (Count Five);
and Possession of a Firearm in Furtherance of a Drug
Trafficking Crime (Count Six). See Doc. No. 64.
Jones was also charged with Possession of a Firearm by a
Felon (Count Seven) and Possession of Firearms by a Felon
(Count Eight). See Doc. No. 64.
October 8, 2019, Thurmon moved to sever her trial from
co-defendant Jones. Thurmon argues severance is proper
because her connection to Jones-that of a girlfriend who
resides in the same residence-and the evidence the Government
will likely present to prove Jones' two counts of
possession of firearms by a felon will unfairly prejudice
her. Thurmon also argues severance is proper because without
a separate trial, Thurmon will be deprived of access to
Jones' testimony, which Thurmon asserts is exculpatory.
8(b) of the Federal Rules of Criminal Procedure states:
The 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. The defendants may be
charged in one or more counts together or separately. All
defendants need not be charged in each count.
the ‘same series of acts or transactions' means
acts or transactions that are pursuant to a common plan or a
common scheme.” United States v. Wadena, 152
F.3d 831, 848 (8th Cir. 1998). Rule 8(b) is to be construed
liberally. United States v. Gravatt, 280 F.3d 1189,
1191 (8th Cir. 2002).
14(a) of the Federal Rules of Criminal Procedure provides,
“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.” A motion to sever will only be
granted “upon a showing of real prejudice to an
individual defendant.” United States v.
Payton, 636 F.3d 1027, 1037 (8th Cir. 2011). The
prejudice must be “real” and “clear”
and “[t]he defendant carries a heavy burden in making
this showing.” Id. Real prejudice is something
more than the mere fact that the defendant would have had a
better chance for acquittal had he been tried separately.
United States v. Mickelson, 378 F.3d 810,
818 (8th Cir. 2004). “A defendant ‘can
demonstrate real prejudice to his right for a fair trial by
showing (a) that his defense is irreconcilable with the
defense of his co-defendant or co-defendants, or (b) that the
jury will be unable to compartmentalize the evidence as it
relates to separate defendants.'” United States
v. Washington, 318 F.3d 845, 858 (8th Cir. 2003).
Severing the defendants' trials is within the district
court's discretion. Id.
argues that without a separate trial, she will be unfairly
prejudiced because 1) a jury may “presume Thurmon's
guilt by her mere connection of being the girlfriend of Jones
and by residing at the same residence as Jones, ” and
2) the Government may introduce evidence of Jones'
“felony background and previous firearm
possession” to prove the two counts of possession of
firearms by a felon which are charged against Jones, but not
Thurmon. See Doc. No. 59, p. 5. The Court disagrees.
can be justified if the defendant shows “that the jury
will be unable to compartmentalize the evidence as it relates
to separate defendants.” Payton, 636 F.3d at
1037. In this case, the defendants are charged with
conspiracy to distribute and possess with intent to
distribute controlled substances, among other offenses. There
is a preference for a single trial of defendants who are
jointly indicted, particularly where a conspiracy is charged.
See United States v. Spotted Elk, 548 F.3d 641, 658
(8th Cir. 2008) (“[I]t will be the rare case, if ever,
where a district court should sever the trial of alleged
coconspirators.”). “Persons charged with a
conspiracy will generally be tried together, especially where
proof of the charges against each of the defendants is based
on the same evidence and acts.” United States v.
Foote, 920 F.2d 1395, 1398 (8th Cir. 1990). The risk of
prejudice posed by a single trial is best cured by specific
jury instructions. Mickelson, 378 F.3d at 818. In
this case, only two defendants are charged, and both
defendants' charges stem from the same or related events
during the same time period and in the same place. Thurmon
has failed to state how this case is particularly complex,
and the Court finds that she has not met her burden of
showing that a jury will be unable to compartmentalize the
evidence. Thus, Thurmon has not demonstrated a real prejudice
to her right for a fair trial so as to warrant a severance of