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United States v. Nunley

United States District Court, M.D. Tennessee, Nashville Division

January 3, 2020

UNITED STATES OF AMERICA
v.
CHRISTOPHER NUNLEY

          MEMORANDUM OPINION & ORDER

          ELI RICHARDSON UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Defendant's Renewed Motion to Sever Counts (the “Motion”). (Doc. No. 83). Via the Motion, Defendant requests the Court to sever Counts Five and Six of the Indictment from Counts One through Four pursuant to Rule 8(a) and Rule 14 of the Federal Rules of Criminal Procedure. The Government opposes the Motion. (Doc. No. 84). For the following reasons, the Motion is DENIED.

         THE INDICTMENT

         In the Second Superseding Indictment, the Government charged Defendant with six separate counts. (Doc. No. 74). Counts One through Four charge Defendant with four offenses: conspiracy to commit Hobbs Act robbery, attempt to commit Hobbs Act robbery, discharge of a firearm during an attempted robbery, and possession of ammunition subsequent to a felony conviction. (Id.). Counts One through Four are based on events that allegedly occurred on January 7, 2018, when Defendant allegedly shot “AR” during an attempted robbery that occurred in Nashville, Tennessee. (Id.).[1]

         Counts Five through Six charge Defendant with possession of ammunition (subsequent to a felony conviction) allegedly found at the scene of two shootings that allegedly occurred in the vicinity of the Charter Village Apartments in Nashville, Tennessee, on November 10, 2017 and November 13, 2017, respectively. (Doc. No. 74 at 3-4). Count Five alleges that .40 caliber and 9mm ammunition was recovered after the November 10, 2017 shooting and that the .40 caliber ammunition was fired from the same .40 caliber pistol allegedly used by Defendant during the shooting and attempted robbery of AR on January 7, 2018. (Id.). Count Six alleges that 9mm ammunition was recovered after the November 13, 2017 shooting, that was allegedly fired from the same 9mm pistol used by Defendant during the November 10, 2017 shooting at the Charter Village Apartments. (Id.).

         Thus, the Second Superseding Indictment refers to a total of three shootings (on January 7, 2018 and November 10 and 13, 2017), which allegedly occurred on different dates but were allegedly connected in that one of the two firearms used in the January 7, 2018 shooting was used in the alleged November 10, 2017 shooting while the other firearm was used in the alleged November 13, 2017 shooting

         LAW & ANALYSIS

         1. Rule 8(a)

         Federal Rules of Criminal Procedure 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). 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). But 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 (6th Cir. 2009). 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) (quoting 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). The Sixth Circuit has instructed that when a trial court is determining whether counts in an indictment are misjoined pursuant to Rule 8(a), it is to look only at the face of the indictment. See United States v. Thompson, 690 Fed.Appx. 302, 310 (6th Cir. 2017) (“To determine whether joinder was proper, we should look only at the allegations on the face of the indictment.” (citing United States v. Locklear, 631 F.3d 364, 369 (6th Cir. 2011)).

         Defendant argues that the Court should sever Counts Five and Six from Counts One through Four because Counts Five and Six are misjoined under Rule 8(a) “in that they are not of the same or similar character, nor are they based on the same act or transaction, nor are they connected with or part of a common scheme or plan when compared with Counts 1-4.” (Doc. No. 69 at 1). Further, he asserts that “there is no evidence that [the] incidents are logically connected in any way other than the defendant is implicated in both and that at least one firearm was discharged in each alleged incident.” (Id. at 2).

         In response, the Government contends that the Second Superseding Indictment specifies “a link between the three incidents [that are the basis of the three felon in possession charges] since the indictment charges that the defendant and another person used the same .40 caliber pistol in both the November 10, 2017, and January 7, 2018, incidents, and that he and another person used the same 9mm pistol in both the November 10th and November 13th incidents.” (Doc. No. 84 at 6).

         The Court agrees with the Government that the Second Superseding Indictment establishes a link between Counts One through Four and Counts Five and Six, such that these counts are not misjoined under Rule 8(a). All three shootings at issue are alleged to be connected in that one of two handguns were apparently used at each of the shooting incidents. This is sufficient to establish that Counts Five and Six are of the same or similar character as Counts One through Four and/or appear to be connected by a common scheme or plan. See United States v. Johnson, No. 2:18-20027-JTF, 2019 WL 4806345, at *2 (W.D. Tenn. Oct. 1, 2019) (considering separate events of a carjacking and attempted robbery to be sufficiently similar in character under Federal Rule of Criminal Procedure 8(a) because “[a]ll . . . three offenses involve Defendant's use of the Ruger 9mm semiautomatic handgun, as alleged in Counts 3, 6 and 9.”); United States v. Marks, No. 115CR00454TWTJSA, 2016 WL 7366108, at *4 (N.D.Ga. Aug. 24, 2016) (explaining that joinder was proper under Rule 8(a), because “[t]he Defendant's possession of the same firearm is the subject of both counts, and therefore clearly are ‘connected together'”); United States v. Brooks, No. CRIM.07-705, 2009 WL 116967, at *2 (E.D. Pa. Jan. 15, 2009) (holding that joined of two 18 U.S.C. § 922(g)(1) charges was proper even though the two events were separated by seven months because “the same handgun was implicated[.]”).

         Additionally, although the shootings alleged in Counts Five and Six occurred almost nine weeks prior to the shooting that is the basis of Counts One through Four, the Sixth Circuit place “little emphasis on temporal connection” when evaluating whether counts are misjoined pursuant to Rule 8(a). United States v. Nolan, 162 Fed.Appx. 575, 578 (6th Cir. 2006). Therefore, although the events alleged in Counts Five and Six were separated somewhat in time, the alleged facts, as contained in the Second Superseding Indictment, satisfactorily share enough connection to ...


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