The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
This case was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #9.
The defendant, Ronald Evans, ("the defendant") is charged with co-defendant Tashine Knightner, in a seven-count Indictment with having violated Title 18, United States Code, Sections 2, 371, 471, 472, 922(g)(1) and 924(e)*fn1 . Dkt. #7. Presently pending before this Court is the defendant's motion to suppress statements made by him and his motion to sever Counts 1 through 5 from Counts 6 and 7. Dkt. #10. The government filed opposition to the defendant's motion to suppress and motion to sever. Dkt. #11. Oral argument on the defendant's motion to sever was held at the conclusion of the February 23, 2010 evidentiary hearing. What follows is this Court's Decision and Order with respect to the defendant's motion to sever. This Court's Report, Recommendation and Order with respect to the defendant's motion to suppress has been filed separately. Dkt. #17. For the following reasons, the defendant's motion to sever is denied.
In his severance motion, the defendant argues that if the charges relating to counterfeit currency are tried together with the felon in possession of a firearm charge he will suffer substantial prejudice. Specifically, the defendant states, "[i]f the jury is permitted to hear testimony about a gun in a drawer in a bedroom where the defendant slept, along with evidence of not one, but three, prior felony convictions, as well as unrelated testimony about counterfeit currency manufacturing and the use of those counterfeit notes, the jury is likely to conclude that he is guilty on the counterfeiting charges because of the inflammatory nature of the gun allegations." Dkt. #10, p.15. Moreover, the defendant argues that serious questions exist as to whether joinder is appropriate simply to promote judicial economy. Id. at p.16. In support of this argument the defendant states,
[h]ere, the witnesses as to each incident will be substantially different. The counterfeiting case will entail witnesses from Wal-Mart to introduce the surveillance tapes and computerized transactions and an expert on counterfeit money. Testimony about the gun count will entail facts about the place of manufacture, evidence of a prior conviction, and the circumstances surrounding its discovery.
The witnesses to Evans' statement about both the counterfeiting and the gun possession are both law enforcement officers and are likely to be easily available for the court. So, it is simply part of their duties to be expected to be available for such testimony. Moreover, any admissions made to the officers that survive a suppression hearing can be limited to statements relevant to the offense being tried. Finally, the serious implications of a conviction on Count 6, as compared to a conviction on Counts 1 through 5, pale in comparison.
Dkt. #10, pp.16-17. The defendant further argues that joinder of the counts is not proper under Rule 8(a) because such joinder is only permitted when the counts are "of the same or similar character, or are based on the same act or transaction, or are connected with, or constitute parts of a common scheme or plan." Dkt. #10, p.11.Even if such joinder were proper here, the defendant maintains that Rule 14 of the Federal Rules of Criminal Procedure allows the severance of counts where a defendant will suffer from the prejudicial joinder. Id. at p.14.
In its response, the government maintains that the evidence and testimony for the counterfeiting charges is similar and overlaps with the evidence and testimony relating to the possession of a firearm count. Dkt. #11, p.9. Specifically, the government states,
[a]s outlined above, the firearm was seized during a search warrant executed at defendant Evans' residence relating to his counterfeiting activities. In defendant Knightner's statement to police, she stated that defendant Evans produced the counterfeit Notes at her residence, and that the counterfeit Notes were then sold to drug dealers. Additionally, the government anticipates testimony at trial from another witness, who will state that defendant Evans had the firearm for his protection.
Dkt. #11, pp.10-11. In support of its argument that joinder of the counterfeiting charges and the possession of a firearm charge is appropriate and will not result in substantial prejudice to defendant Evans, the government cites to four cases where courts have found that joinder of counterfeiting charges and firearm charges is appropriate. See United States v. Sides, 762 F.2d 1013 (6th Cir. 1985) (finding joinder to be appropriate where charges of counterfeit savings bonds located in one suitcase and a firearm found in another suitcase in the same vehicle were connected and part of a common scheme); United States v. Stolica, No. 09-cr-30047-DRH, 2009 WL 2849003 (S.D. Ill. Sept. 1, 2009) (holding joinder of passing counterfeit currency with charge of felon in possession of a firearm was proper, noting, given "the relatively small number of counts, the relative simplicity of the charges, and the lack of complexity of the alleged conduct underlying each charge ... a properly instructed jury can sort through the evidence ... follow limiting instructions, thus avoiding any prejudicial evidentiary spillover or cumulation of evidence ..."); United States v. Hunter, No. 3:06-CR-64, 2006 WL 3196929 (E.D. Tenn. Nov. 2, 2006) (same); United States v. Neuman, Criminal No. 08-24, 2009 WL 273208 (E.D. La. Jan. 23, 2009) (same).
Rule 8 of the Federal Rules of Criminal Procedure provides that an indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged -- whether felonies or misdemeanors or both -- are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.
In addition, "[j]oinder is proper where the same evidence may be used to prove each count." United States v. Amato, 15 F.3d 230, 236 (2d Cir. 1994), quoting United States v. Blakney, 941 F.2d 114, 116 (2d Cir. 1991).
Rule 14 of the Federal Rules of Criminal Procedure permits a court to order separate trials of multiple counts if it appears that a defendant is prejudiced by the joinder of offenses. A trial court's "decision whether to grant a severance is 'committed to the sound discretion of the trial court and is virtually unreviewable.'" United States v. Zackson, 6 F.3d 911, 922 (2d Cir. 1993), quoting United States v. Harwood, 998 F.2d 91, 95 (2d Cir. 1993) (internal quotation omitted). Reversal will be granted only in cases where a trial judge "clearly ...