USA v. Mendez et al

1
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA
Plaintiff,
vs.
ERIKA JEANETTE GUARDADO
Defendant.
5:21-CR-50024-JLV-3
ORDER DENYING
MOTION TO SEVER (DOC. 122)
Erika Guardado filed a Motion to Sever requesting her case be completely
severed from that of her co-defendants, Joe Mendez and Nathan Mendez. 	(Doc.
122). 	The United States opposes the motion. 	(Doc. 131). 	A grand jury
returned an Indictment charging the defendants with Possession with Intent to
Distribute a Controlled Substance, namely 500 grams of methamphetamine, in
violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A). 	(Doc. 44). 	The
pending Motion was referred to the Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and United States District Court District of South Dakota’s Local
Rule (LR) 57.11(B).
DISCUSSION
I. 	Defendants are Properly Joined under Rule 8(b)
When considering a motion for severance, the district court must first
determine whether joinder was proper under Rule 8(b) of the Federal Rules of
Criminal Procedure. 	United States v. Darden, 70 F.3d 1507, 1526 (8th Cir.
Case 5:21-cr-50024-JLV Document 132 Filed 01/20/23 Page 1 of 12 PageID #: <pageID>

2
1995). 	Federal Rule of Criminal Procedure 8(b) provides two or more
defendants may be charged in the same indictment “if they 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.”
Guardado does not argue that the defendants are improperly joined
under Rule 8(b); joinder is in fact proper. 	In light of proper joinder of
defendants, the issue then becomes whether the joinder is prejudicial,
permitting severance.
II. 	Severance under Rule 14(a)
Severance under Federal Rule of Criminal Procedure 14(a) provides, “[i]f
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.”
Rule 14 severance should be granted 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.”
United States v. Zafiro, 945 F.2d 881, 885 (7th Cir. 1991). 	Serious risks
identified by the Supreme Court include circumstances where essential
exculpatory evidence available to a defendant tried alone is unavailable in a
joint trial, where defendants with drastically different degrees of culpability are
tried together in a complex case, and where highly prejudicial evidence that is
Case 5:21-cr-50024-JLV Document 132 Filed 01/20/23 Page 2 of 12 PageID #: <pageID>

3
probative of a defendant's guilt is only technically admissible against a co-
defendant. 	Id.; United States v. Williams, 507 F. Supp. 3d 181 (D.D.C. 2020).
“To grant a motion for severance, the necessary prejudice must be severe
or compelling.” 	United States v. George, 548 F. Supp. 2d 713, 720 (D.S.D.
2008). 	“Because defendants who are jointly indicted on similar evidence from
the same or related events should normally be tried together, to warrant
severance a defendant must show ‘real prejudice’, that is, ‘something more
than the mere fact that he would have had a better chance for acquittal had he
been tried separately.’ ” 	United States v. Collins, 240 F. Supp. 2d 1078, 1081
(D.S.D. 2002) (quoting United States v. Oakie, 12 F.3d 1436, 1441 (8th Cir.
1993).
“A defendant can show real prejudice either by showing that [his] defense
is irreconcilable with the defense of [his] codefendant or codefendants or that
the jury will be unable to compartmentalize the evidence as it relates to
separate defendants.” 	United States v. Jackson, 64 F.3d 1213, 1217 (8th Cir.
1995). 	Even though “one of the co-defendants may try to shift the blame to the
other” that does “not mandate separate trials.” 	Collins, 240 F. Supp. 2d at
1081; see also United States v. Bordeaux, 84 F.3d 1544, 1547 (8th Cir. 1996).
“Joint trials play a vital role in the criminal justice system” by promoting
efficiency and serving “the interests of justice by avoiding the scandal and
inequity of inconsistent verdicts.” 	Id. (internal quotations omitted). 	“[A] joint
trial gives the jury the best perspective on all of the evidence and therefore,
increases the likelihood of a correct outcome.” 	George, 548 F.2d at 720.
Case 5:21-cr-50024-JLV Document 132 Filed 01/20/23 Page 3 of 12 PageID #: <pageID>

4
This clear preference for joinder, applicable here, may be overcome if the
party moving to sever "can show that the benefits [of joinder] are outweighed by
a clear likelihood of prejudice." 	United States v. Clay, 579 F.3d 919, 927 (8th
Cir. 2009). 	A court must weigh the inconvenience and expense of separate
trials against the prejudice resulting from a joint trial of co-defendants.
George, 548 F. Supp. 2d at 720.
When the risk of prejudice is high, a district court is more likely to
determine that separate trials are necessary; however, the risk of prejudice
posed by joint trials is best cured by “less drastic measures, such as limiting
instructions.” 	Zafiro v. United States, 506 U.S. 534, 537 (1993).
A. 	Whether Guardado has Established Prejudice Warranting
Severance
When joinder is proper under Rule 8, the defendant seeking to sever his
case has the burden to demonstrate how a joint trial would prejudice his right
to a fair trial. 	Darden, 70 F.3d at 1526.
Guardado has three arguments in favor of severance. 	(Doc. 122, pp. 1-
2). 	First, Guardado seeks the testimony of her co-defendants. 	Id. at p. 1.
Second, Guardado argues the defendants have “antagonistic defenses.” 	Id.
Third, Guardado seeks to draw the jury’s attention to “any in-trial silence of a
co-defendant.” 	Id. at p. 2. 	The court will address each argument separately.
1. Co-defendant’s Testimony
The Eighth Circuit Court of Appeals held that the mere fact that the
defendant claimed “he needed a separate trial in order to call co-defendant [] as
a witness” was insufficient to demand severance; instead, the defendant must
Case 5:21-cr-50024-JLV Document 132 Filed 01/20/23 Page 4 of 12 PageID #: <pageID>

5
show the witness would have “actually would have testified and his testimony
would have been exculpatory.” 	United States v. Blaylock, 421 F.3d 758, 766
(8th Cir. 2005); United States v. Graham, 548 F.2d 1302, 1311-1312 (8th Cir.
1977) (“A defendant is not entitled to severance on the weight of an
unsupported possibility that a co-defendant's testimony might be forthcoming
at a separate trial.” 	The “assertion that his co-defendant might testify at a
separate trial must find some independent support in the record.” 	In this case,
the court found that “the representation that these defendants might testify at
a separate trial is based on nothing more than pure speculation and wishful
thinking;” thus the motion to sever was denied.).
“[I]n view of the strong policies favoring joint trials where permissible, the
defendant must show that the co-defendant's testimony would be substantially
exculpatory. 	The defendant must show that the co-defendant's testimony
would do more than ‘merely tend to contradict a few details of the government's
case against [him or her].’ ” 	United States v. Benton, 890 F. 3d 697, 714 (8th
Cir. 2018) (quoting United States v. DeLuna, 763 F.2d 897, 920 (8th Cir.
1985)); see also United States v. Crumley, 528 F.3d 1053, 1064-65 (8th Cir.
2008) (holding that it is not enough “for a defendant to claim . . . that he
needed a separate trial in order to call a co-defendant as a witness. 	He must
show that it is likely his codefendant would have testified, and the testimony
would have been exculpatory.”). 	In deciding whether a co-defendant's
testimony would be substantially exculpatory, the district court is entitled to
Case 5:21-cr-50024-JLV Document 132 Filed 01/20/23 Page 5 of 12 PageID #: <pageID>

6
take into account “the other trial evidence and the impeachment evidence
available to the government.” 	Oakie, 12 F.3d at 1441.
Guardado asserts she would call one or both of her co-defendants to
testify. 	Thus, the issue is whether the co-defendant would have actually
testified and whether that testimony would be exculpatory. 	Guardado
anticipates that her co-defendant’s testimony would be “that Guardado rented
the pickup from Hertz on January 26, 2021, and she subsequently had no
access to the Pickup until they all three departed for South Dakota later on the
same day.” 	(Doc. 122, p. 1). 	Guardado provided no support in the record or
evidence to support this claim. 	Therefore, the representation that her co-
defendants may testify at a separate trial “is based on nothing more than pure
speculation and wishful thinking.” 	Graham, 548 F.2d at 1311-1312.
Furthermore, the mere argument that she lacked access to the pickup after
January 26, 2021, is not exculpatory.1 Thus, the motion to sever on this
ground fails to show prejudice which would warrant separate trials.
2. Antagonistic Defenses
Guardado claims that “it is anticipated that there will be antagonistic
defenses to the charges in the indictment. 	The antagonism grows out of who
had access to the Pickup after it was rented and before it left for South Dakota
on the same day,” assuming “the methamphetamine was not placed in the
Pickup by a previous Hertz lessee.” 	(Doc. 122, pp. 1-2).
1 The fact that Guardado did not have access to the pickup truck may
contradict the government’s theory of their case but does not grant severance.
Benton, 890 F. 3d at 714.
Case 5:21-cr-50024-JLV Document 132 Filed 01/20/23 Page 6 of 12 PageID #: <pageID>

7
The United States Supreme Court declined to adopt a bright-line rule
requiring severance when prejudice is shown or when co-defendants present
antagonistic defenses. 	Zafiro, 506 U.S. 539. 	“ ‘Antagonistic’ defenses require
severance only when there is a danger that the jury will unjustifiably infer that
this conflict alone demonstrates that both are guilty.” 	United States v.
Sandstrom, 594 F.3d 634, 644 (8th Cir. 2010) (citation omitted); United States
v. Haywood, 421 F. Supp 3d 576, 583 (“mutual antagonism, standing alone, is
not prejudicial;” thus, it is “insufficient to require severance”); see also United
States v. Mietus, 237 F.3d 866, 873 (7th Cir. 2001) (“Even a showing that two
defendants have ‘mutually antagonistic defenses,’ that is, that the jury's
acceptance of one defense precludes any possibility of acquittal for the other
defendant, is not sufficient grounds to require a severance unless the
defendant also shows prejudice to some specific trial right.”); United States v.
Plato, 629 F.3d 646, 650–51 (7th Cir. 2010) (“When codefendants blame each
other, less drastic measures, such as limiting instructions, often will suffice to
cure any risk of prejudice . . . Severance is warranted 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.”).
Guardado fails to articulate how any trial right would be compromised by
the joint trial or explain how the joint trial would prevent the jury from making
a reliable judgment. 	Guardado simply concludes this antagonism will: 1)
prevent the jury from making a reliable decision about guilt or innocence; 2)
Case 5:21-cr-50024-JLV Document 132 Filed 01/20/23 Page 7 of 12 PageID #: <pageID>

8
lead the jury to infer that this conflict demonstrates that all are guilty; 3)
mislead or confuse the jury. 	Id. 	She fails to detail how any trial right would be
affected, simply pointing to rights without showing prejudice is insufficient to
grant severance.
Furthermore, less drastic measures, such as limiting instructions,
should be considered because severance is not warranted. 	Therefore, the
motion to sever on this ground fails to show prejudice which would warrant
separate trials.
3. Mention of in-trial silence of a co-defendant
“[D]efense of Guardado concludes that effective presentation of his
client’s case requires that he direct the jury’s attention to any in-trial silence of
a co-defendant, the trial court must order defendants’ cases to be severed.”
(Doc. 122, pp. 1-2). 	Guardado argues that a separate trial would have allowed
her to subpoena her co-defendants who exercised their privilege against self-
incrimination. 	In support of their argument, Guardado cites to De Luna v.
United States, 308 F.2d 140, 154 (5th Cir. 1962)2 (Fifth Circuit Court of
2 In De Luna, Gomez claimed he was innocent and that De Luna, a passenger
in his car, saw police officers coming, tossed Gomez a package of narcotics,
and told him to toss it out the window. 	De Luna did not testify; his lawyer
theorized he never tossed the package to Gomez. 	Gomez’s counsel argued to
the jury, “Well, at least one man was honest enough and had courage enough
to take the stand and subject himself to cross examination and tell you the
whole story,” and “You haven't heard a word from this man (De Luna).” 	Id. at
p. 142. 	The De Luna court held that the improper comments warranted
reversal, enumerating several factors that were critical to its decision, including
“the head-on collision between the two defendants, the repetition of the
comments, and the extended colloquy over the comments between the trial
judge and the lawyers.” 	Id. at p. 154.
Case 5:21-cr-50024-JLV Document 132 Filed 01/20/23 Page 8 of 12 PageID #: <pageID>

9
Appeals held “[i]f an attorney's duty to his client should require him to draw
the jury's attention to the possible inference of guilt from a co-defendant's
silence, the trial judge's duty is to order that the defendants be tried
separately”).
“The De Luna dictum has been cited on numerous occasions for the
notion that a defense attorney may, under certain circumstances, be obligated
to comment upon a codefendant's invocation of the fifth amendment, and that
such an obligation requires severance.” 	United States v. McClure, 734 F.2d
484, 490-91 (10th Cir. 1984)); see United States v. Kopituk, 690 F.2d 1289,
1319 (11th Cir. 1982); United States v. Hyde, 448 F.2d 815, 832 (5th Cir.
1971); United States v. De La Cruz Bellinger, 422 F.2d 723, 726 (9th Cir.
1970); Kolod v. United States, 371 F.2d 983, 991 (10th Cir. 1967). 	No decision,
in which this court is aware, including De Luna, has ever ordered severance
based upon this supposed “obligation.” 	McClure, 734 F.2d at 490-91. “In
McClure, the Tenth Circuit unequivocally rejected De Luna’s dictum:
We reject the dictum of the De Luna majority and today hold that
under no circumstances can it be said that a defendant’s attorney
is obligated to comment upon a codefendant’s failure to testify. 	As
the Supreme Court has noted, the assertion of the fifth
amendment privilege “is properly no part of the evidence submitted
to the jury, and no inferences whatever can be legitimately drawn
by them from the legal assertion by the witness of his
constitutional right.” 	Johnson v. United States, 318 U.S. 189, 196
(1943). 	If in fact the invocation of the fifth amendment privilege is
of such dimension that it permits no inference of guilt or
innocence, it is without probative value on the issue of a
defendant's guilt or innocence. 	United States v. Marquez, 319 F.
Supp. 1016, 1022 (D.C.N.Y. 1970). 	See also United States v.
Atnip, 374 F.2d 720, 723 (7th Cir. 1967). 	Hence, we reject the
notion that under certain circumstances a defense attorney may be
“duty bound” to comment upon nonprobative evidence.”
Case 5:21-cr-50024-JLV Document 132 Filed 01/20/23 Page 9 of 12 PageID #: <pageID>

10
United States v. Schmidt, No. 04-cr-00103-REB, 2007 WL 9677003 (D. CO
March 28, 2007) (quoting McClure, 734 F.2d at 491).
The Eighth Circuit Court of Appeals has had very little discussion of De
Luna, citing to it on six occasions. 	The most relevant case being Hayes v.
United States, 329 F.2d 209, 222 (8th Cir.), cert. denied, 377 U.S. 980 (1964)
and United States v. Patterson, 140 F.3d 767, 774-75 (8th Cir. 1998). 	This
Court did not find any instance where De Luna was cited by South Dakota’s
District Court.
In Patterson, the defendant contended that the district court abused its
discretion in refusing to sever his trial from that of his codefendant, because a
separate trial would have allowed him to subpoena his co-defendant who
exercised his privilege against self-incrimination at their joint trial. 	Patterson,
140 F.3d at 774-75. 	He relied on De Luna v. United States, 308 F.2d 140, 141
(5th Cir. 1962) for the point that “[i]f an attorney's duty to his client should
require him to draw the jury's attention to the possible inference of guilt from a
co-defendant's silence, the trial judge's duty is to order that the defendants be
tried separately.” 	The Eighth Circuit found that Patterson did not
demonstrated that co-defendant would have been willing to testify at a separate
trial nor he has identified any testimony that co-defendant had to offer which
would have exculpated him. Id. at 775 (citing to United States v. Kopelciw, 815
F.2d 1235, 1238 (8th Cir.1987); United States v. Reed, 733 F.2d 492, 508–09
(8th Cir.1984)).
Case 5:21-cr-50024-JLV Document 132 Filed 01/20/23 Page 10 of 12 PageID #: <pageID>

11
In Hayes, the defendant was ordered not to comment upon the failures of
his co-defendants to testify in his closing statement. 	Id. at 221. 	The Eighth
Circuit held where a defendant wishes to make only a simple statement of his
innocence, rather than comment on his co-defendant’s failure to testify, it was
“difficult to perceive any benefit that might flow to [the defendant] by permitting
him to call the attention of the jury to the fact that some of his codefendants
did not testify.” 	Hayes, 329 F.2d at pp. 221-22. 	The court noted “[p]ermitting
comment upon the failure of a defendant to testify constitutes prejudicial error
as to the non-testifying defendant. 	On the other hand, where defendant is tried
separately his counsel has the right to make fair comment upon the fact that
his testimony has not been denied or contradicted.” Furthermore, the Court
must weigh the rights of the testifying and non-testifying defendants. 	Any
imaginable benefit would have to be weighed against the possible detriment to
the other defendants. 	The Eighth Circuit found that the defendant failed to
show any prejudice has resulted to him from the denial of the right to
comment; thus, he was given a fair trial. 	Id. at 222.
At this time, Guardado has not established that any of her co-defendants
would be willing to testify at a separate trial nor has she identified any specific
testimony, other than her unsupported assertion that her co-defendant’s
testimony would be “that Guardado rented the pickup from Hertz on January
26, 2021, and she subsequently had no access to the Pickup until they all
three departed for South Dakota later on the same day.” 	(Doc. 122, p. 1), that
the co-defendant’s have which would have exculpated her. 	Patterson, 140 F.3d
Case 5:21-cr-50024-JLV Document 132 Filed 01/20/23 Page 11 of 12 PageID #: <pageID>

12
at 774-75. 	Even if her co-defendants were willing to testify, the evidence that
she did not have access to the pickup until after they departed for South
Dakota is not exculpatory.
There has been no showing of possible prejudice remotely comparable to
that in De Luna nor a duty to bring the silence of other defendants to the jury's
attention. 	Accordingly, the motion to sever on this ground fails to show
prejudice which would warrant separate trials.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Defendant’s
Motion to Sever (Doc. 122) be denied.
NOTICE TO PARTIES
Pursuant to 28 U.S.C. § 636(b)(1)(A), any party may seek reconsideration
of this order before the district court upon a showing that the order is clearly
erroneous or contrary to law. 	The parties have fourteen (14) days after service
of this order to file written objections pursuant to 28 U.S.C. § 636(b)(1)(A),
unless an extension of time for good cause is obtained. 	See FED. R. CRIM . P.
58(g)(2); 59(a). 	Failure to file timely objections will result in the waiver of the
right to appeal questions of fact. 	FED. R. CRIM . P. 59(a) Objections must be
timely and specific in order to require review by the district court. 	Thompson
v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir.
1986).
DATED this 20th day of January, 2023.
BY THE COURT:
DANETA WOLLMANN
United States Magistrate Judge
Case 5:21-cr-50024-JLV Document 132 Filed 01/20/23 Page 12 of 12 PageID #: <pageID>