United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM OPINION & ORDER
RICHARDSON UNITED STATES DISTRICT JUDGE.
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
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.
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.).
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
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)).
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).
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).
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[.]”).
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 ...