United States District Court, W.D. Tennessee, Western Division
ORDER ADOPTING IN PART AND REVERSING IN PART
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION TO GRANT IN
PART AND DENY IN PART DEFENDANT SHUNTARIO JOHNSON'S
MOTION TO SEVER COUNTS
T. FOWLKES, Jr. UNITED STATES DISTRICT JUDGE.
the Court is Defendant Shuntario Johnson's Motion to
Sever Counts Two, Three, and Four from the other Counts of
the Fourth Superseding Indictment and to Sever Counts Five,
Six, and Seven from Counts One, Eight, Nine, and Ten of the
Fourth Superseding Indictment, filed on August 4,
2019. (ECF No. 220.) The United States filed its
Response opposing the Motion on August 13, 2019. (ECF No.
231.) The Motion was referred to the Magistrate Judge (ECF
No. 238), who issued a Report and Recommendation on September
5, 2019, suggesting that the Motion should be denied as to
severing Counts Five, Six, and Seven from Counts One, Eight,
Nine, and Ten but granted as to severing Counts Two, Three,
and Four from the other Counts. (See ECF No. 265,
1.) The United States timely filed an Objection to the
Magistrate Judge's Report and Recommendation on September
9, 2019. (ECF No. 270.) On September 9, 2019, the Court heard
arguments regarding the Government's objection. (ECF No.
following reasons, the Court finds that the Magistrate
Judge's Report and Recommendation should be ADOPTED IN
PART and DENIED IN PART, and Defendant's Motion to Sever
should be DENIED.
Report and Recommendation, the Magistrate Judge provides, and
this Court adopts and incorporates, proposed findings of fact
in this case. (ECF No. 265, 1-7.)
passed 28 U.S.C. § 636(b) “to relieve some of the
burden on the federal courts by permitting the assignment of
certain district court duties to magistrates.”
United States v. Curtis, 237 F.3d 598, 602 (6th Cir.
2001). Pursuant to the provision, magistrate judges may hear
and determine any pretrial matter pending before the Court,
except various dispositive motions. 28 U.S.C. §
636(b)(1)(A). Regarding those excepted dispositive motions,
magistrate judges may still hear and submit to the district
court proposed findings of fact and recommendations for
disposition. 28 U.S.C. § 636(b)(1)(B). Upon hearing a
pending matter, “[T]he magistrate judge must enter a
recommended disposition, including, if appropriate, proposed
findings of fact.” Fed.R.Civ.P. 72(b)(1); see also
Baker v. Peterson, 67 Fed.Appx. 308, 310 (6th Cir.
2003). Any party who disagrees with a magistrate judge's
proposed findings and recommendation may file written
objections to the report and recommendation. Fed.R.Civ.P.
standard of review that is applied by the district court
depends on the nature of the matter considered by the
magistrate judge. See Baker, 67 Fed.Appx. at 310
(citations omitted) (“A district court normally applies
a ‘clearly erroneous or contrary to law' standard
of review for nondispositive preliminary measures. A district
court must review dispositive motions under the de
novo standard.”). Upon review of the evidence, the
district court may accept, reject, or modify the proposed
findings or recommendations of the magistrate judge.
Brown v. Bd. of Educ., 47 F.Supp.3d 665, 674 (W.D.
Tenn. 2014); see also 28 U.S.C. § 636(b)(1).
The court “may also receive further evidence or
recommit the matter to the [m]agistrate [j]udge with
instructions.” Moses v. Gardner, No.
2:14-cv-2706-SHL-dkv, 2015 U.S. Dist. LEXIS 29701, at *3
(W.D. Tenn. Mar. 11, 2015). A district judge should adopt the
findings and rulings of the magistrate judge to which no
specific objection is filed. Brown, 47 F.Supp.3d at
Court finds that the Magistrate Judge's Report and
Recommendation should be reversed in part and granted in
part, and the Defendant's Motion to Sever denied.
of Counts Two, Three, and Four
following reasons, the Court reverses the Magistrate
Judge's recommendation for the severance of Counts Two,
Three, and Four. Federal Rules of Criminal Procedure 8(a)
(“Rule 8(a)”) provides, “[t]he indictment
or information may charge a defendant in separate counts with
[two] or more offenses if the offenses charged . . . 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.” Fed. R. Crim. P. 8(a).
“Rule 8 requires a trial court to examine the
allegations of the indictment in order to determine whether
the joining of the offenses . . . has been proper.”
United States v. Frost, 125 F.3d 346, 389 (6th Cir.
1997). The Sixth Circuit has held that Rule 8(a)
“should be construed in favor of joinder.”
United States v. Deitz, 577 F.3d 672, 691-92. If an
indictment fails to satisfy Rule 8(a)'s joinder
requirements, severance is required. United States v.
Chavis, 296 F.3d 450, 456 (6th Cir. 2002). In examining
the allegations of the indictment, the district court may
broadly construe Rule 8(a) to “‘promote the goals
of trial convenience and judicial efficiency.'”
United States v. Graham, 275 F.3d 490, 512 (6th Cir.
2001) (citing United States v. Wirsing, 719 F.2d
859, 863 (6th Cir. 1983)). Such a broad construction of Rule
8(a) implies that “[s]imilar does not mean
identical.” United States v. Boulanger, 444
F.3d 76, 87 (1st Cir. 2006).
determining whether Counts Two, Three, and Four are
sufficiently similar to the remaining Counts of the
Indictment, it is helpful to review the carjacking statute.
Count Two charges Defendant with a violation of Title 18,
United States Code, Section 2119 (“Section
2119”)-carjacking. Section 2119 falls within Chapter
103, entitled Robbery and Burglary. The Magistrate Judge
Defendant has not cited any authority, and the Court is aware
of none, stating that carjacking, i.e. robbery of a vehicle,
is of the same character as conspiracy and attempt to rob
‘persons engaged in narcotics trafficking to obtain
drugs and drug proceeds.' . . . Defendant has likewise
cited no authority, and the Court is aware of none, stating