USA v. White Horse et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
UNITED STATES OF AMERICA, 3:20-CR-30058-01-02-RAL
Plaintiff,
vs.
OPINION AND ORDER GRANTING
MOTION TO SEVER
JEROME WHITE HORSE,JR., and
SAMUEL FRANCIS WHITE HORSE,
Defendants.
Defendants Jerome White Horse Jr. (Jerome), and Samuel White Horse (Samuel) are
accused of beating Lawrence Lafferty to death with a garden hoe. Doc. 49. A grand jury charged
both men with second-degree murder, assault with a dangerous weapon,assault resulting in serious
bodily injury, and aiding and abetting in the commission ofthese crimes. Doc.49. It also charged
Samuel with tampering with evidence for allegedly hiding the garden hoe. Doc. 49.
Jerome moved to sever his trial from Samuel's, arguing that joinder was improper imder
Federal Rule of Criminal Procedure 8(b) and that he is entitled to relief from prejudicial joinder
under Rule 14(a). Docs. 88, 89.
I. Rule 8(b)
Rule 8(b) allows the government to charge two or more defendants in the same indictment if
the defendants "are alleged to have participated in the same act or transaction, or in the same series of
acts or transactions, constituting an offense or offenses." Fed. R. Crim. P. 8(b). "Generally,the 'same
series of acts or transactions' means acts or transactions that are pursuant to a common plan or a
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common scheme." United States v. Wadena. 152 F.3d 832, 848 (8th Cir. 1998). The Supreme Court
has expressed "a preference in the federal system for joint trials of defendants who are indicted
together." Zafiro v. United States. 506 U.S. 534, 537 (1993). Consistent with this preference, the
prerequisites of Rule 8(b) "are liberally construed in favor of joinder." United States v. Rimell. 21
F.3d 281, 288 (8th Cir. 1994). When determining whether joinder is appropriate under Rule 8, this
Court looks only to the allegations contained in the indictment. United States v. Lone Eagle. No. 15-
CR-30G50-RAL, 2015 WL 5999518 at *1 (D.S.D. Oct. 14, 2015); United States v. Condon. No. 3:14-
CR-30083-01-02-RAL, 2014 WL 6694782, at *2-5 (D.S.D. Nov. 26, 2014); United States v. Young.
14-CR-30065-RAL,2014 WL 4925255, at *2(D.S.D. Sept. 30, 2014).
Here, Counts I through III of the indictment charge Jerome and Samuel with the murder and
assault of Lafferty and aiding and abetting in these crimes. These allegations satisfy the "same series
of acts or transactions" requirement of Rule 8(b). See Young. 2014 WL 4925255, at *1-2(concluding
that joinder of defendants was proper under Rule 8(b) where defendants, although not charged with
aiding and abetting one another, were eharged with committing the same or similar crimes against the
same victim in the same location in a narrow period of time); United States v. Hawk. No. Cr. 10-
30025(02)-RAL, 2010 WL 2219213, at *1-2(D.S.D. June 2, 2010)(holding that defendants charged
in the same count with assaulting the same victim were properly joined); see also United States v.
Gravatt. 280 F.3d 1189, 1191 (8th Cir. 2002)("Persons . . . jointly indicted on similar evidence from
the same or related events should be tried together ... .").
Jerome's only argument againstjoinder under Rule 8(b)is that he will be prejudiced iftried
with Samuel. This argument is misplaced; although prejudice to a defendant may justify granting
a severance under Rule 14(a), it does not render joinder improper xmder Rule 8(b) when, as here,
•)
the indictment satisfies Rule 8(b)'s requirements. See United States v. Rittweger. 524 F.3d 171,178
(2d. Cir. 2008)("The question of whether [defendants] faced prejudice—or were in fact prejudiced—
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by joinder under Rule 8(b) presents the altogether separate inquiry of whether the trial of these
defendants should have been severed under Rule 14."); United States v. Jones. 880 F.2d 55, 61 (8th
Cir. 1989)(noting that Rule 8(h)"permits" the type of prejudice that results "when several defendants
are jointly charged with a single or related offenses" (quoting Cupo v. United States. 359 F.2d 990,
993(D.C. Cir. 1966))). Because joinder is proper under Rule 8(b), this Court tums to Jerome's request
for severance under Rule 14(a).
II. Rule 14(a)
Rule 14(a) permits relieffrom prejudicial joinder as follows:
/
If the joinder of offenses or defendants in an indictment, an
information, or a consolidation for trial appears to prejudice a
defendant or the government, the court may order separate trials of
counts, sever the defendants' trials, or provide any other relief that
justice requires.
Fed. R.Crim. P. 14(a). The Supreme Court has instructed that"defendants are not entitled to severance
merely because they may have a better chance of acquittal in separate trials." Zafiro. 506 U.S. at 540.
Rather, a district court is to grant a severance "only if there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable
judgment about guilt or innocence." Id, at 539. A defendant attempting to demonstrate the requisite
prejudice under Rule 14(a)"carries a heavy burden." United States v. Sandstrom. 594 F.3d 634, 644
(8th Cir. 2010)(quoting United States v. Swinnev. 970 F.2d 494, 500(8th Cir. 1992)). He may meet
this burden by showing that "(a) his defense is irreconcilable with that of his co-defendant or (b) the
jury will he unable to compartmentalize the evidence as it relates to the separate defendants." United
States V. Sanchez-Gareia. 685 F.3d 745,754 (8th Cir. 2012)(quoting United States v. Davis. 534 F.3d
903, 916-17 (8th Cir. 2008)). "Generally, the risk that a joint trial will prejudice one or more of the
defendants 'is best cured by careful and thorough jury instructions.'" Davis. 534 F.3d at 917(quoting
United States v. Mickelson. 378 F.3d 810, 817-18 (8th Cir. 2004)).
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Jerome argues that severance is warranted under Rule 14(a) because of statements Samuel
made to law enforcement officers in February 2020. Samuel told the officers that Jerome bit Lafferty
with a garden boe and that Samuel bid the boe because be did not want Jerome to get in trouble. Doc.
90 at 2. According to the government, law enforcement recovered the garden boe and found Jerome's
DN.^ on the handle and Lafferty's DNA on the blade. Doc. 90 at 2. The government plans to offer
Samuel's February 2020 statements against bim at trial. Relying on Bruton v. United States. 391 U.S.
123 (1968), Jerome contends that unless Samuel testified and was subject to cross-examination, the
admission of Samuel's incriminating statements would violate Jerome's right of confrontation under
the Sixth Amendment.
The Supreme Court in Bruton held that the admission of a non-testifying codefendant's
confession naming the defendant as a participant in the crime at their joint trial violated the defendant's
rights under the Confrontation Clause of the Sixth Amendment,even though thejury was instructed to
consider the confession only against the codefendant. Id at 126. The Supreme Court reasoned that
although it is often appropriate to assume that a jury will follow a trial judge's limiting instructions,
"there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so
great, and the consequences offailure so vital to the defendant, that the practical and human limitations
of the jury system cannot be ignored."' Id. at 135. The Court concluded that one such context was
"where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused
side-by-side with the defendant, are deliberately spread before the jury in a joint trial." Id at 135-36.
The Supreme Court clarified the scope of Bruton in Richardson v. Marsh.481 U.S. 200(1987)
and Grav v. Maryland. 523 U.S. 185 (1998). In Richardson, the Supreme Court held that there is no
Confrontation Clause violation when the defendant's name and existenee are redacted from his
codefendant's eonfession and limiting instructions are given, even though the confession might
incriminate the defendant when linked to other evidence. 481 U.S. at 211. The Supreme Court
reasoned that unlike the eonfession in Bruton. which "expressly implicat[ed]" the defendant, the
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confession in Richardson was not facially incriminating and therefore did not raise the same
"overwhelming probability" that the jury would be unable to follow a limiting instruction. Id
(alteration in original). In Gray, however, the Supreme Court held that "obvious" redactions of a
codefendant's statement, like substituting the defendant's name with a blank space or the word
"deleted," may violate a defendant's rights under the Confrontation Clause, despite the use of a limiting
instruction. Gray. 523 U.S. at 195 ("[W]e believe that, eonsidered as a class, redactions that replace a
proper name with an obvious blank, the word 'delete,' a symbol, or similarly notify the jury that a
name has been deleted are similar enough to Bruton's unredacted confessions as to warrant the same
legal results.").
When determining whether a statement violates Bruton. courts within the Eighth Circuit
evaluate "whether the context is one in which the risk is too great that the jury will not or cannot follow
the cautionary instruction to consider the statement solely against the declarant." United States v.
Mueller. 661 F.3d 338, 348-49(8th Cir. 2011)(quoting Sandstrom. 594 F.3d at 648). This Court has
not seen Samuel's statement, but the government admits that it is "unclear whether redaction of
Jerome's name and the replacement with neutral pronouns will sufficiently obscure Jerome's identity
from Samuel's statement to eliminate the risk of severe prejudice to Jerome." Doc. 90 at 2. Because
/
of this risk, the government does not oppose Jerome's motion to sever. Doc. 90 at 2. From the sounds
of it, admission of Samuel's statements would involve the sort of obvious redactions warned against
in Gray and would pose too great a risk that the jury would consider the statements against Jerome. As
^ such, this Court grants Jerome's motion to sever his trial from Samuel's.
III. Conclusion
For the reasons stated above, it is hereby
ORDERED that Jerome's Motion to Sever Defendants for Separate Trials, Doc. 88,is granted.
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DATED this day ofOctober, 2020.
BY THE COURT:
ROBERTO A. LANGE
CHIEF JUDGE
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