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United States v. Lee

United States District Court, W.D. New York

April 6, 2017

UNITED STATES OF AMERICA,
v.
DONTE LEE, Defendant.

          DECISION AND ORDER

          HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT COURT

         The defendant, Donte Lee, is charged in a two-count Indictment returned on February 16, 2016 with one Count of violating 18 U.S.C. § 922(g) by possessing a firearm after having been convicted of a felony, and one Count of violating 21 U.S.C. § 844(a) by possessing marijuana. Defendant Lee has moved to sever the two Counts from one another pursuant to Fed. R. Crim. P. 8(a) on the ground that the two alleged offenses are improperly joined in the same Indictment. Alternatively, the Defendant has also moved to sever the two Counts pursuant to Fed. R. Crim. P. 14(a) on the ground that the combined evidence of the two alleged offenses will prejudice the jury with regard to each individual alleged offense.

         For the reasons stated below, the Court finds that the Counts were properly joined under Rule 8(a), and that the Defendant has not shown that he will suffer prejudice sufficient under Rule 14(a) to outweigh the efficiencies of a joint trial. The motion to sever is therefore denied.

         BACKGROUND

         The evidence to be offered at trial by the United States on both the felon-in-possession offense and the marijuana-possession offense alleged in the Indictment is expected to include testimony by a Buffalo Police Officer that, on November 3, 2015, the Officer saw Defendant Lee holding what appeared to be a firearm as a group of people standing on Sherman Street in Buffalo fled when the Officer turned his vehicle onto Sherman Street from Genesee Street. Police officers will testify that they started to pursue the Defendant when he got into an Audi sport-utility vehicle and started to flee.

         Another Buffalo Police Officer is expected to testify that he saw Defendant Lee throw what appeared to be a firearm out of the driver's-side window of the vehicle as the Defendant was being pursued by police. Officers are expected to testify the Defendant was attempting to drive through a vacant lot between Sherman Street and a parallel street when he was seen throwing the firearm, and that the Defendant crashed the vehicle into a fence in the vacant lot. Officers are expected to testify the Defendant then attempted to escape on foot, but was caught.

         Buffalo Police Officers are expected to testify that they recovered an AA Arms Corp. AP 9, 9mm semi-automatic pistol, bearing serial number 009305, loaded with eighteen (18) rounds of ammunition, in the area where Defendant Lee was seen throwing a gun from the sport-utility vehicle before the crash. An Officer will also testify that the Defendant was searched after his arrest, and the Officer found and seized from the Defendant's pants pocket a small amount - less than an ounce - of what chemical analysis later indicated is marijuana.

         DISCUSSION

         Defendant Lee argues that the felon-in-possession Count and the marijuana-possession Count in the Indictment are “completely unrelated” and should not have been charged in the same indictment. However, Rule 8(a) of the Federal Rules of Criminal Procedure permits joinder of offenses in an indictment:

. . . 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.

Id. Here, neither of the two alleged offenses are a part of the other, but it is well settled that joinder of offenses under Rule 8(a) is proper “where the same evidence may be used to prove each count.” United States v. Blakney, 941 F.2d 114, 116 (2d Cir. 1991). Here, the res gestae of the two possession-based offenses overlaps, and the Court finds preliminarily that the United States will be entitled to introduce into evidence witness testimony of the circumstances preceding and during the Defendant's behavior in the crowd of people on Sherman Street, his attempted flight in the sport-utility vehicle, and then on foot after he crashed the vehicle into a fence in a vacant lot, in support of both of the offenses with which the Defendant is charged. The offenses therefore have sufficient logical connection and sufficient common evidence to have been charged in the same Indictment under Fed. R. Crim. P. 8(a). See United States v. Page, 657 F.3d 126, 130 (2d Cir. 2011); United States v. Ruiz, 894 F.2d 501, 505 (2d Cir. 1990).

         Whether the two offenses with which Defendant Lee is charged should be tried together is a more substantial question. In general, Fed. R. Crim. P. 14(a) authorizes a court to order separate trials of offenses if it appears that a defendant is substantially prejudiced by the joinder of counts. Severance may be granted under Rule 14 even if joinder was proper under Rule 8(a). United States v. Werner, 620 F.2d 922, 928 (2d Cir. 1980). A defendant has the burden to show that the prejudice from a combined trial would be “substantial prejudice.” United States v. Sampson, 385 F.3d 183, 190 (2d Cir. 2004).

         A defendant always faces some prejudice if charged with more than one offense, but Rule 8(a) reflects that the interests of sound and efficient judicial administration authorize joint trials despite this degree of prejudice. United States v. Werner, 620 F.2d at 928-29 (“Granting separate trials under Rule 14 simply on a showing of some adverse effect, particularly solely the adverse effect of being tried for two crimes rather than one, would reject the balance struck in Rule 8(a), since this type of ‘prejudice' will exist in any Rule 8(a) case.”). Accordingly, it is well-settled that a defendant has the burden to establish that “unfair prejudice resulted from the joinder, not merely that [the defendant] might have had a better chance for acquittal at a separate trial.” United States v. Page, 657 F.3d at 657 (quotations omitted).

         In this case, judicial economy will be served by avoiding the duplication of proceedings and testimony by witnesses about the events leading up to the alleged recovery of the firearm and the alleged seizure of the small amount of marijuana that would be required if separate trials of each Count were ordered by severing the Counts.[1] On the other hand, the evidence in this case concerns uncomplicated events, and the events within the expected testimony of the witnesses for the United States ...


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