USA v. Sierra et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JESSE SIERRA and DUSTIN SIERRA,
Defendants.
CR. 19-50110-JLV
ORDER
INTRODUCTION
A grand jury indicted defendants Jesse and Dustin Sierra on 11 counts of
kidnapping, sexual assault, domestic violence and assault relating to alleged
incidents of violence against Esther Wolfe in July 2019 and August 2018.1
(Docket 31). Pending before the court are defendants’ pretrial motions. Jesse
moves to dismiss the indictment or compel election between counts on
multiplicity grounds and to sever counts for trial. (Dockets 69 & 71). Dustin
moves to suppress evidence seized pursuant to a search warrant; to dismiss the
indictment or compel election between counts on multiplicity grounds; and to
sever his case from Jesse’s. (Dockets 66, 73 & 74). The government opposes
each motion. (Dockets 76, 82 & 83).
The motions were referred to Magistrate Judge Daneta Wollmann for a
report and recommendation (“R&R”) or order pursuant to 28 U.S.C.
1Defendants are brothers. (Docket 90 at p. 3 n.1). The court refers to
Dustin and Jesse by their first names where necessary to avoid confusion.
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§§ 636(b)(1)(A), (B) and the court’s April 1, 2018, standing order. The magistrate
judge conducted an evidentiary hearing on the motion to suppress on February
7, 2020. (Docket 86). She took testimony from one witness. Id. The parties
filed post-hearing briefing. (Dockets 73, 78 & 79). The magistrate judge issued
two R&Rs and one order denying or recommending denial of all the pending
motions. (Dockets 90-92). Jesse did not file any objections, but Dustin
objected to each of the magistrate judge’s orders. (Dockets 93-95).
The Federal Magistrate Act provides two standards of review applicable to
the pending objections. 28 U.S.C. § 636(b)(1). If a party files written objections
to the magistrate judge’s proposed findings and recommendations as to a motion
to suppress or dismiss, the district court is required to “make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” Id. The court may “accept,
reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge.” Id. If a party objects to an order on any other pretrial
matter, “the court may reconsider . . . where it has been shown that the
magistrate judge’s order is clearly erroneous or contrary to law.” Id. at
§ 636(b)(1)(A).
For the reasons given below, the court overrules Dustin’s objections and
adopts the R&Rs and order as modified by this order.
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I. Facts
The pending motions require little factual analysis. The factual summary
set out here, derived from the testimony at the suppression hearing and the
affidavit supporting the search warrant, is accordingly minimal.
Esther Wolfe was in an abusive dating relationship with Jesse. (Docket
76-1 at ¶ 6). Ms. Wolfe went missing on July 14, 2019. (Docket 87 at p. 4).
She reappeared at the hospital in Chadron, Nebraska, on July 21 with significant
injuries. Id. at p. 5; Docket 76-1 at ¶ 14. Bureau of Indian Affairs (“BIA”)
Special Agent Molanna Clifford (“SA Clifford”) interviewed Ms. Wolfe in Rapid
City, South Dakota, on July 22. (Docket 87 at p. 5).
Ms. Wolfe alleged defendants took her from Rapid City to Dustin’s
residence in Oglala, South Dakota, a community on the Pine Ridge Reservation,
where Jesse sexually assaulted her. (Docket 76-1 at ¶¶ 15-21). She further
stated Jesse physically assaulted her during the trip from Rapid City and at
Dustin’s residence, describing some of the assaults as defendants “testing” her.
Id. at ¶¶ 17-18, 21-22. Dustin “would not assist [Ms. Wolfe] during” the assault
during the trip from Rapid City. Id. at ¶ 19. Ms. Wolfe stated she lost control of
her bladder twice while in a bed at Dustin’s residence. Id. at ¶ 21.
Jesse transported Ms. Wolfe to other locations and further physically and
sexually assaulted her. Id. at ¶¶ 24-29. Dustin later drove Jesse and Ms.
Wolfe from the reservation to Chadron. Id. at ¶ 29. When Dustin took Jesse
and Ms. Wolfe to Chadron, she would have had visible injuries. Id. Jesse later
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dropped Ms. Wolfe off at the Chadron hospital. Id. at ¶ 30. Ms. Wolfe
underwent a sexual assault examination. (Docket 87 at p. 6).
SA Clifford was the sole witness at the suppression hearing. She testified
that she observed injuries on Ms. Wolfe’s person consistent with her statement.
Id. The results of Ms. Wolfe’s sexual assault examination further corroborated
her statement. Id. SA Clifford had no reason to disbelieve Ms. Wolfe’s
statement. Id. On July 25, SA Clifford applied for and was granted a search
warrant of Dustin’s residence in Oglala and other locations where Ms. Wolfe
alleged she was held captive. Id. at pp. 6-7. SA Clifford testified she did not
omit any facts relevant to the probable cause analysis from the search warrant
affidavit. Id. at p. 8. The warrant authorized law enforcement to seize “bedding
and or evidence of biological matter on the bedding” at Dustin’s residence.
(Docket 76-1 at p. 16). Law enforcement executed the warrant on July 25.
(Docket 87 at p. 7).
Dustin executed an affidavit for his suppression motion. (Docket 66-1 at
p. 1). He states Ms. Wolfe “never asked [him] for assistance” during the trip
from Rapid City to Oglala. Id. He further states he “never ‘tested’ the victim in
this case or had anything to do with such ‘testing.’ ” Id. Dustin did not testify
at the suppression hearing.
II. Suppression Motion
Dustin’s suppression motion argues defects in the search warrant. He
asserts:
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1. The affidavit in support of the warrant application was untrue
in material respects, see Franks v. Delaware, 438 U.S. 154
(1978);
2. There was no probable cause to search his residence;
3. The information cited to the magistrate judge in support of the
application was stale; and
4. The warrant lacked particularity.
(Docket 66 at pp. 1-2). The magistrate judge rejected each argument. (Docket
90). Dustin reasserts these arguments in his objections. (Docket 93). Upon
de novo review, the court overrules Dustin’s objections and adopts the R&R as
modified by this order.
A. Franks
The magistrate judge, finding SA Clifford credible, concluded Dustin’s
affidavit did not controvert facts cited in the search warrant application.
(Docket 90 at pp. 3-4). She further concluded that the application established
probable cause even without the contested facts. Id. at pp. 4-5. Dustin objects
to these conclusions. (Docket 93 at ¶¶ 1-3).
Dustin first argues the magistrate judge erred by determining the search
warrant affidavit did not state that Ms. Wolfe asked Dustin for help during the
ride between Rapid City and Oglala. Id. at ¶ 1; see also Docket 90 at pp. 3-4.
The affidavit states: “[Ms. Wolfe] advised Dustin Sierra would not assist during
this assault.” (Docket 76-1 at ¶ 19). It does not explicitly state Ms. Wolfe asked
for Dustin’s help. During the suppression hearing, SA Clifford agreed with
defense counsel’s characterization of Ms. Wolfe’s statement as her “indicat[ing]
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that Dustin . . . did not help her when she asked him to help her[.]” (Docket 87
at p. 14).
The implication in the warrant affidavit is that Ms. Wolfe asked Dustin for
help during the assault. SA Clifford testified as much. However, Dustin’s
attempt to generate a Franks issue by asserting Ms. Wolfe did not ask for help is
unavailing. The court need only hold a Franks hearing “where the defendant
makes a substantial preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included by the affiant
in the warrant affidavit, and [that] the allegedly false statement is necessary to
the finding of probable cause[.]” 438 U.S. at 155-56. Even crediting Dustin’s
self-serving affidavit, as the magistrate judge noted, the warrant affidavit is not
false on its face; it does not state Ms. Wolfe asked Dustin for help.2 (Docket 90
at pp. 3-4). Even assuming the affidavit’s implication that Ms. Wolfe asked
Dustin for help is false, it was not essential to the warrant’s probable cause
finding.
Dustin next contends the magistrate judge erred by finding SA Clifford’s
testimony more credible than his statement that he had nothing to do with any
“testing.” (Docket 93 at ¶ 2). The magistrate judge credited SA Clifford’s
testimony that Jesse and Dustin told Ms. Wolfe law enforcement was at Dustin’s
2Dustin argues the government “should not be able to reverse its course at
trial” and argue Ms. Wolfe asked him for help. (Docket 93 at ¶ 1). But the
government never argued Ms. Wolfe did not ask Dustin for help. The magistrate
judge, not the government, pointed out that the warrant affidavit did not
explicitly state Ms. Wolfe asked for Dustin’s help. There is no basis to exclude
any evidence at trial on an estoppel theory.
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residence to see if she would attempt to flee. (Dockets 76-1 at ¶ 18 & 87 at
p. 14). The court likewise credits SA Clifford’s testimony. She testified in
person and was cross-examined about her interview with Ms. Wolfe and her
affidavit.3 Moreover, she is a trained law enforcement officer. Dustin’s
affidavit, on the other hand, is short, undetailed and extremely self-serving.
The multiple serious felony charges levied against him create an obvious
incentive to lie about his involvement in Ms. Wolfe’s ordeal. It was not error to
credit SA Clifford’s testimony over Dustin’s affidavit.
Finally, Dustin argues “[i]t does not matter if there was other evidence
supporting the search warrant if there were material falsehoods relied upon to
issue the warrant in the first instance.” (Docket 93 at ¶ 3). This is not the law.
A court evaluating a Franks argument must ask: “if the false information is
excised[,]” does “the affidavit no longer establish[] probable cause[?]” United
States v. Daigle, 947 F.3d 1076, 1083 (8th Cir. 2020) (internal quotation
omitted). A warrant may not be invalidated simply because its supporting
affidavit contains lies; the lies must be so material that probable cause would
vanish without them. The court is required to undertake the analysis Dustin
3Dustin argues “hearsay testimony of the victim as related to a government
officer” cannot be more credible than his affidavit. (Docket 93 at ¶ 2). The
Rules of Evidence do not govern search warrant applications. Fed. R. Evid.
1101(d)(3). Moreover, because only federal law enforcement agents and
government attorneys are permitted to apply for federal search warrants, many
warrant affidavits contain hearsay. Fed. R. Crim. P. 41(b). That the warrant
affidavit in this case contains hearsay is no mark against its credibility.
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claims does not matter. In any event, the affidavit at issue here contained no
falsehoods and so no Franks hearing is necessary. The warrant was valid.
The objection is overruled and the R&R is adopted as modified by this
order.
B. Probable cause
The magistrate judge concluded the warrant affidavit established probable
cause to search Dustin’s residence. (Docket 90 at pp. 5-6). She noted the
affidavit recounted Ms. Wolfe’s statement that she was held captive at Dustin’s
home and that she lost control of her bladder twice in a bed at his residence. Id.
Dustin objects, arguing only Ms. Wolfe’s “uncertain recollection” connected his
residence to any crimes. (Docket 93 at ¶ 4).
Ms. Wolfe’s statement to SA Clifford was corroborated by her physical
injuries, the results of her sexual assault examination, and a phone call law
enforcement received from a number belonging to the owner of a residence where
Ms. Wolfe alleged she was held. (Dockets 76-1 at ¶ 10-11, 28 & 87 at p. 6).
“[L]aw enforcement officers are entitled to rely on information supplied by the
victim of a crime, absent some indication that the information is not reasonably
trustworthy or reliable.” Clay v. Conlee, 815 F.2d 1164, 1168 (8th Cir. 1987).
The corroboration indicates Ms. Wolfe’s statement was reliable.
Ms. Wolfe’s statement also connected Dustin’s residence to the alleged
offenses. Ms. Wolfe told SA Clifford she was held captive at Dustin’s residence
and urinated on a bed there. “Probable cause exists, if under the totality of the
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circumstances, a showing of facts can be made sufficient to create a fair
probability that evidence of a crime will be found in the place to be searched.”
United States v. Johnson, 848 F.3d 872, 876 (8th Cir. 2017) (internal quotation
omitted). Based on Ms. Wolfe’s reliable statement to SA Clifford, there was a fair
probability evidence of her captivity would be found at Dustin’s residence.
The affidavit established probable cause for the issuance of the search
warrant. Dustin’s objection to the contrary is overruled and the R&R is adopted
on this issue.
C. Particularity
The magistrate judge concluded the warrant—which sought to seize only
bedding from Dustin’s residence—was sufficiently particular to pass
constitutional muster. (Docket 90 at pp. 6-7). Dustin objects, alleging that the
warrant was impermissibly broad because it allowed law enforcement to seize
“evidence of crime, things illegally possessed, or property used to commit a
crime[.]” (Docket 93 at ¶ 5). The court overrules the objection.
The court is uncertain why Dustin believes the warrant would allow
seizure of any evidence of a crime from his residence. In the space on the
warrant for identifying the items to be seized, the affiant directed a reader to see
Attachment A. (Docket 76-1 at p. 2). Attachment A lists only “[b]edding and or
evidence of biological matter on the bedding” as items to be seized at Dustin’s
residence. Id. at p. 16. The warrant did not permit a broad seizure of any
evidence of a crime.
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“[T]he Fourth Amendment requires a warrant to describe particularly the
things to be seized[.]” United States v. Merrell, 842 F.3d 577, 581 (8th Cir.
2016) (internal quotation omitted). “The particularity requirement can be
satisfied by listing the items to be seized in the warrant itself or in an affidavit
that is incorporated into the warrant.” United States v. Szczerba, 897 F.3d 929,
937 (8th Cir. 2018). The particularity requirement prevents “general searches”
and “assures the individual whose property is searched or seized of the lawful
authority of the executing officer, his need to search, and the limits of his power
to search.” Groh v. Ramirez, 540 U.S. 551, 561 (2004) (internal quotation
omitted).
The warrant here easily satisfied the particularity requirement. It sought
to seize only bedding from Dustin’s residence. The warrant did not authorize a
general search and clearly limited the items officers were authorized to seize.
Dustin’s objection to the contrary is overruled and the R&R is adopted on this
issue.
D. Staleness
The magistrate judge concluded the warrant was not stale, pointing to the
“mere four days” between when Ms. Wolfe appeared at the Chadron hospital on
July 21 and the issuance of the warrant on July 25. (Docket 90 at pp. 7-8).
Dustin objects, arguing the “unlawful conduct” took place on July 13, his
residence was “accessible by other persons” and that biological material was “at
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risk of being altered or compromised by the elements.” (Docket 93 at ¶ 6). The
court overrules the objection.
“[I]nformation supporting a warrant can become stale if it is not
sufficiently close in time to the issuance of the warrant and the subsequent
search[.]” United States v. Petruk, 929 F.3d 952, 960 (8th Cir. 2019) (internal
quotation omitted). There is “no fixed formula for deciding when information
has become stale, but [a court] consider[s] the nature of the crime being
investigated and the property to be searched.” Id. (internal quotation omitted).
The information in the warrant affidavit was in no way stale. SA Clifford
interviewed Ms. Wolfe on July 22 and the magistrate judge issued the
warrant—based largely on Ms. Wolfe’s statement—on July 25. The warrant was
executed the same day it was issued. While conditions at Dustin’s residence
may have changed between the time Ms. Wolfe was allegedly held captive there
and the time the search warrant was executed, law enforcement only needed a
“fair probability” evidence would be found at Dustin’s residence to obtain a
warrant. Johnson, 848 F.3d at 876. Simply because evidence may have
degraded or been tampered with does not render the warrant stale in these
circumstances, where law enforcement promptly sought and executed the
warrant after learning of the alleged crimes.
The court overrules the objection and adopts the R&R on this issue.
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II. Motions to Dismiss
Both defendants filed motions to dismiss counts on multiplicity grounds.
(Dockets 71 & 73). However, Dustin’s motion merely joined Jesse’s as it
pertained to counts in which Dustin is named and did not make any separate
claims or analysis. (Docket 73 at p. 1). The magistrate judge recommended
the motions be denied. (Docket 91). Only Dustin objected. (Docket 94).
Dustin argues Counts II & III as well as Counts V & VI are multiplicitous and
either must be dismissed or the government must be forced to proceed on one of
the counts in each pair.4 Id. at p. 1. The court overrules his objections and
adopts the R&R.
The multiplicity doctrine bars prosecution of crimes that violate the
Double Jeopardy Clause.
An indictment is multiplicitous if it charges the same crime in two
counts. Where the same act or transaction constitutes a violation
of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one is whether
each provision requires proof of a fact which the other does
not. Unless the two offenses each contain an element not found in
the other, they are the same offense and double jeopardy bars
additional punishment.
United States v. Bernhardt, 903 F.3d 818, 825 (8th Cir. 2018) (internal
quotations and citations omitted). To show multiplicity, “a defendant must
4Dustin’s objections assert that Counts I & II are multiplicitous. (Docket
94 at p. 1). This is clearly a typographical error. Counts I & II—kidnapping
and aggravated sexual abuse—are quite dissimilar, whereas Counts II & III
charge two incidents of sexual abuse. (Docket 31 at pp. 1-2). In his original
motion joining Jesse’s motion to dismiss, Dustin alleged Counts II & III were
multiplicitous and the magistrate judge evaluated those two counts. The court
therefore considers whether Counts II & III are multiplicitous.
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show that the two offenses charged are in law and fact the same offense.”
United States v. Roy, 408 F.3d 484, 491 (8th Cir. 2005) (internal quotation
omitted).
A. Counts II & III
Counts II & III of the indictment charge defendants with sexually
assaulting Ms. Wolfe by force, including attempt and aiding and abetting
theories of liability, near Oglala between July 13 and July 21, in violation of
18 U.S.C. § 2241(a)(1). (Docket 31 at p. 2). The statutory citations for each
count show that Count II alleges penile-vaginal or penile-anal rape and Count III
alleges penile-oral rape. Id. (citing 18 U.S.C. §§ 2246(2)(A), (B)). To the court’s
knowledge, the government does not allege Dustin sexually assaulted Ms. Wolfe.
(Docket 87 at pp. 12-13).
Precedent from the United States Court of Appeals for the Eighth Circuit
forecloses Dustin’s argument. “[A]ggravated sexual abuse is a separate-act
offense[,]” meaning “engaging in multiple sexual acts (as listed in § 2246(2))
would amount to multiple violations . . . and would leave the perpetrator
susceptible to multiple punishments[.]”5 United States v. Two Elk, 536 F.3d
890, 899 (8th Cir. 2008). The indictment charges Dustin with facilitating two
separate sexual assaults: a penile-vaginal or penile-anal assault and a
5Two Elk analyzed § 2241(c), which prohibits sexual assault of children.
Defendants are charged with violating § 2241(a)(1), which criminalizes forcible
sexual assault. But both subsections rely on the same definitions of sexual acts
found in § 2246(2). The court understands Two Elk to govern multiplicity
arguments made against § 2241(a)(1) and Dustin does not argue otherwise in his
objections.
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penile-oral assault. Under Two Elk, these separate assaults are separately
punishable. There is no multiplicity.
Dustin argues Two Elk was wrongly decided. (Docket 94 at p. 1).
Whatever the merits of that argument, the court has no authority to disregard
binding precedent. Dustin also asserts the indictment does not allege he “knew
any crime was going to be committed or that he acted in any manner to aid in the
commission of the offense.” Id. “[F]ederal criminal procedure does not provide
for a pre-trial determination of sufficiency of the evidence.” United States v.
Ferro, 252 F.3d 964, 968 (8th Cir. 2001) (internal quotation omitted). If the
government cannot show at trial that Dustin aided and abetted Jesse’s alleged
sexual assaults, he may move for a judgment of acquittal under Federal Rule of
Criminal Procedure 29.
The objection is overruled and the R&R is adopted as modified by this
order.
B. Counts V & VI
Counts V & VI of the indictment charge defendants with assault resulting
in serious bodily injury and assault of a dating partner by strangulation.
(Docket 31 at p. 3). The indictment alleges Ms. Wolfe is the victim in both
counts and that the assaults took place between July 12 and July 21 near
Oglala. Id. Dustin argues an assault resulting in serious bodily injury
necessarily encompasses assault by strangulation. (Docket 94 at pp. 1-2).
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As the magistrate judge noted, each of these offenses requires proof of an
element which the other does not. (Docket 91 at pp. 5-6). Assault resulting in
serious bodily injury requires proof of serious bodily injury. 18 U.S.C.
§ 113(a)(6). Serious bodily injury “means something more than slight bodily
injury, but not necessarily life threatening injury. It does not require a high
probability of death. . . . Rather, it is a bodily injury of a grave and serious
nature.” United States v. Two Eagle, 318 F.3d 785, 791 (8th Cir. 2003) (internal
citation omitted). Assault of a dating partner by strangulation requires proof of
strangulation or suffocation and that the victim is a spouse, intimate partner or
dating partner of the perpetrator. 18 U.S.C. § 113(a)(8).
The government also asserts the facts of each alleged assault are distinct.
It states trial evidence will show Jesse strangled Ms. Wolfe during the trip from
Rapid City to Oglala but that the assaults resulting in serious bodily injury
occurred separately. (Docket 83 at pp. 7-8). Dustin does not challenge these
factual assertions or contend Counts V & VI stem from the same incident.
The court recognizes a multiplicity problem could arise where both assault
resulting in serious bodily injury and assault of a dating partner by strangulation
are charged based on a single incident. In many cases, assault by strangulation
will no doubt cause serious bodily injury, collapsing the distinction between the
two offenses. But that situation is not present in this case. Here, the record
shows Counts V & VI are based on separate instances of assault. The two
charges are not identical in law and fact. Roy, 408 F.3d at 491.
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The objection is overruled and the R&R is adopted as modified by this
order.
III. Motions to Sever
Defendants each filed motions to sever. Jesse moved to sever two sets of
counts for separate trials. (Docket 69). Dustin joined in the motion. (Docket
73 at pp. 1-2). Dustin also moved to sever his case from Jesse’s for trial.
(Docket 74). The magistrate judge denied the motions. (Docket 92). Dustin
objected. (Docket 95). Reviewing the magistrate judge’s order for clear error,
see 28 U.S.C. § 636(b)(1)(A), the court overrules Dustin’s objections.
A. Joinder of counts
Dustin is named as a defendant in six of the indictment’s 11 counts.
(Docket 31). He is not named in Counts VII through XI, which accuse Jesse of
kidnapping, strangling as well as physically and sexually assaulting Ms. Wolfe in
August of 2018. Id. at pp. 4-5. Dustin moved to sever Counts I through VI
from Counts VII through XI, joining Jesse’s motion seeking the same relief.6
(Docket 73 at pp. 1-2). He argued the criminal offenses alleged in Counts I
through VI were not properly joined with Counts VII through XI under Federal
Rule of Criminal Procedure 8(b) and that joinder would prejudice him. Id. The
6In a single sentence in his motion seeking to sever defendants, Dustin
also argued Counts I & IV should be severed for trial from Counts II, III, V & VI.
(Docket 74 at p. 6). The magistrate judge rejected this argument. (Docket 92
at pp. 6-7). Dustin’s objection on this issue argues only that insufficient
evidence supports the aiding and abetting theory alleged in Counts II, III, V & VI.
(Docket 95 at p. 2). He cannot litigate the sufficiency of the government’s
evidence before trial. Ferro, 252 F.3d at 968. The court finds the magistrate
judge’s ruling was not clearly erroneous. The objection is overruled.
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magistrate judge rejected these arguments. (Docket 92 at pp. 3-5, 9-12).
Dustin objects, asserting that joinder of these counts would prejudice his right to
a fair trial because of the “sheer magnification of charges” and because the jury
would blame him for “the alleged sins of his brother[.]” (Docket 95 at pp. 1-2).
“When a defendant moves for a severance, a district court must first
determine whether joinder is proper under Federal Rule of Criminal Procedure
8.” United States v. Darden, 70 F.3d 1507, 1526 (8th Cir. 1995). “Under Rule
8, multiple counts can be charged in a single indictment as long as the offenses
are (1) of the same or similar character; (2) based on the same act or transaction;
or (3) constitute parts of a common scheme or plan.” United States v. Garrett,
648 F.3d 618, 625 (8th Cir. 2011) (citations omitted). “The propriety of joinder
is to be determined from the face of the indictment. . . . The factual allegations in
the indictment must be accepted as true.” United States v. Massa, 740 F.2d
629, 644 (8th Cir. 1984) (internal citations omitted), overruled on other grounds
by United States v. Inadi, 475 U.S. 387 (1986). “If joinder is proper, the court
still has discretion to order a severance under Federal Rule of Criminal
Procedure 14. These rules are to be ‘liberally construed in favor of joinder.’ ”
Id. (quoting United States v. Rimell, 21 F.3d 281, 288 (8th Cir. 1994)).
“Under Rule 14, a district court may sever [counts] if it appears that a
defendant is prejudiced by a joinder of offenses[.]” Darden, 70 F.3d at 1527
(internal quotation marks and brackets omitted). “When joinder is proper
under Rule 8, the defendant seeking a severance has the burden to demonstrate
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how the joint trial prejudiced his or her right to a fair trial.” Id. (citations
omitted). “Severe prejudice occurs when a defendant is deprived of an
appreciable chance for an acquittal, a chance that the defendant would have had
in a severed trial. There is a strong presumption against severing properly
joined counts.” Garrett, 648 F.3d at 625-26 (internal quotations and citations
omitted).
Joinder was proper. Counts I through VI are “of the same or similar
character” as Counts VII through XI. Fed. R. Crim. P. 8(a). As the magistrate
judge noted, these two sets of counts allege the same type of crime: kidnapping,
raping, and assaulting Ms. Wolfe. (Docket 92 at pp. 3-5). The alleged offenses
took place less than a year apart. See Garrett, 648 F.3d at 625 (approving 15-
month gap between offenses). Moreover, evidence of the 2018 assaults may well
have been admissible against Jesse under Federal Rule of Evidence 404(b) had
they not be charged.7 Id. (evaluating whether evidence of offenses would be
admissible under Rule 404(b) as part of joinder analysis).
Nor is there sufficient prejudice to justify severance, especially for Dustin.
The jury will be able to easily separate evidence on Counts VII through XI from
the case against Dustin, as he is not named in any of those counts and, so far as
7Dustin conclusorily asserts this evidence would not be admissible under
Rule 404(b). (Docket 95 at p. 1). It certainly would not be admissible against
him, as there is no allegation he participated in the 2018 assaults. But there is
a substantial likelihood it would have been admissible against Jesse, even in a
joint trial, because of the similarity of the 2018 and 2019 assaults. See United
States v. Williams, 796 F.3d 951, 958-59 (8th Cir. 2015) (test for admitting Rule
404(b) evidence).
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the court is aware, did not participate in those assaults. Whatever evidence is
admitted on Counts VII through XI will not pertain to Dustin at all. This is not a
situation presenting the danger of cumulative evidence overwhelming a jury’s
ability to carefully render a verdict on each separate count. The court will give
limiting instructions at trial requiring the jury to consider the cases against each
defendant separately. See United States v. Robinson, 781 F.3d 453, 461 (8th
Cir. 2015) (noting that jury instructions can limit the risk of prejudice). The
nature of this case lends itself well to compartmentalization and the court finds
the risk of prejudice in joining these counts is low.
The magistrate judge’s order denying severance of Counts I through VI
from Counts VII through XI was not clearly erroneous. Dustin’s objection is
overruled and the order is affirmed.
B. Joinder of defendants
Dustin argues joinder of his case to Jesse’s was improper and that joinder
prejudices his right to a fair trial. (Dockets 74 & 95 at pp. 2-4). In particular,
he asserts the weight of the evidence against Jesse will taint the jury’s evaluation
of the case against him and that Jesse would give exculpatory testimony in a
severed trial. (Docket 95 at pp. 3-4). The magistrate judge disagreed. (Docket
92 at pp. 8-9, 12-16). The court finds the magistrate judge’s ruling on this issue
was not clearly erroneous and affirms.
“To properly join defendants for trial, the indictment must allege that the
defendants participated in the same act or transaction, or in the same series of
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acts or transactions, constituting an offense or offenses. It is not necessary that
all defendants be charged in each count, and the prerequisites for joinder are
liberally construed in favor of joinder.” United States v. Morris, 723 F.3d 934,
941 (8th Cir. 2013) (internal quotations and citation omitted); see also Fed. R.
Crim. P. 8(b). “The district court may sever trials if it appears that compelling or
severe prejudice will result to the defendant. . . . Prejudice is some appreciable
chance that defendants would not have been convicted had the separate trial
they wanted been granted.” United States v. Young, 753 F.3d 757, 777 (8th Cir.
2014) (internal quotations and citations omitted); see also Fed. R. Crim. P. 14(a).
“A joint trial is preferable because it gives the jury the best perspective on all of
the evidence and, therefore, increases the likelihood of a correct outcome.” Id.
at 778 (internal quotation omitted).
Joinder was proper. The indictment alleges both Dustin and Jesse took
part in the same “series of acts or transactions”—the July 2019 offenses against
Ms. Wolfe. Fed. R. Crim. P. 8(b). Dustin asserts he “never had anything to do”
with the offenses alleged in Counts II through VI.8 (Docket 95 at p. 3). But in
evaluating the propriety of joinder, “[t]he factual allegations in the indictment
must be accepted as true.” Massa, 740 F.2d at 644. Taking it as true that
8Dustin also argues he is not named as a defendant in Counts VII through
XI. (Docket 95 at pp. 3-4). But “defendants need not be charged in each
count.” Fed. R. Crim. P. 8(b). And, as discussed below, the court concludes
evidence presented against Jesse on the August 2018 counts will not prejudice
Dustin.
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Dustin aided and abetted Jesse in carrying out the offenses alleged in Counts I
through VI, their cases are properly joined for trial.9
Dustin did not show sufficient prejudice to merit severance. He first
asserts the evidence against Jesse will prejudice the trial against him. (Docket
95 at p. 3). He cites United States v. Baker, 98 F.3d 330 (8th Cir. 1996) in
support of his argument. Id. at pp. 2-3. Baker concerned charges of knowingly
possessing ricin, an “extremely deadly” toxin, for use as a weapon levied against
two defendants. 98 F.3d at 333. The Eighth Circuit concluded Mr. Baker’s
trial should have been severed from his codefendant’s because “[m]ost of the
evidence was properly admissible only against” the codefendant. Id. at 335.
The codefendant was involved in a conspiracy and statements from that
conspiracy were admissible against him, prejudicing Mr. Baker. Id. Given the
“extremely serious and admittedly sensational nature” of the offense, the Circuit
concluded it was the “rare case” in which the jury could not compartmentalize
the evidence against each defendant. Id.
This case does not resemble Baker. The government does not allege Jesse
was in a conspiracy with other third parties, with Dustin as a marginal
participant. Dustin does not assert in his objections that Jesse or other third
parties made statements which would be admissible against Jesse, but not
9Dustin asserts “judicial economy” requires dismissing counts now for
lack of evidence, rather than declare a mistrial. (Docket 95 at p. 3). Whatever
the benefits of such a procedure, the court has no authority to evaluate the
sufficiency of the government’s evidence before trial. Ferro, 252 F.3d at 968.
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him.10 The evidence of the 2019 offenses, in which Dustin is alleged to have
played a significant facilitative role, will be admissible against both defendants.
While the alleged offenses are certainly serious, they are not unusual or unduly
sensational by the standards of this court, which often tries cases involving
violent offenses. The alleged offenses do not approach the “sensational nature”
of the attempted biological warfare charged in Baker. 98 F.3d at 335.
Moreover, the court finds the facts of this case lend themselves well to
compartmentalization. As noted above, Dustin is not charged with involvement
in the 2018 offenses. Given the bright temporal line in this case, the jury will no
doubt be able to properly assess the evidence on each set of counts individually
against the defendants. Simply because the evidence may be stronger against
Jesse does not justify severance. United States v. Benedict, 855 F.3d 880, 884
(8th Cir. 2017) (“Varying strength in the evidence against each defendant does
not require a severance.”). Here, as in most joint trials, “the risk of undue
prejudice is best cured through cautionary instructions to the jury[.]” United
States v. Boone, 437 F.3d 829, 838 (8th Cir. 2006).
Finally, Dustin’s objections conclusorily assert Jesse would testify on his
behalf if the cases were severed. (Docket 95 at pp. 3-4). The court is assured
that “a further showing will be made” on this point. Id. at p. 3. In his original
10Dustin made this argument in his motion to sever. (Docket 74 at p. 4).
The magistrate judge, after ordering the government to produce Jesse’s
statements for an in camera review, concluded they did not implicate Dustin.
(Docket 92 at pp. 13-15). Dustin does not object to this finding and the court,
after independently reviewing the statements, adopts it.
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motion, Dustin claimed Jesse would “exonerate” him by testifying his only
involvement in the offenses was to give Jesse and Ms. Wolfe rides “at their joint
request.” (Docket 74 at p. 4). The magistrate judge rejected this argument, see
Docket 92 at pp. 15-16, and the court does as well.
The court is “not required to grant severance simply because [Dustin]
claim[s] he need[s] a separate trial in order to call [Jesse] as a witness.” United
States v. Blaylock, 421 F.3d 758, 766 (8th Cir. 2005). Dustin must make “a
firm representation that [Jesse] would be willing to testify on [his] behalf” and
“must show that [Jesse’s] testimony would be exculpatory.” United States v. Ali,
799 F.3d 1008, 1023 (8th Cir. 2015) (internal quotation omitted). The Eighth
Circuit has consistently rejected severance arguments based on the possibility of
a codefendant’s exculpatory testimony where a defendant offers only conclusory
promises about the testimony. See, e.g., Ali, 799 F.3d at 1023; United States v.
Crumley, 528 F.3d 1053, 1063 (8th Cir. 2008); Blaylock, 421 F.3d at 766-67.
Dustin made only conclusory promises that Jesse would testify on his
behalf. He did not provide, for example, a written statement from Jesse
agreeing to testify. He did not ask the magistrate judge or this court to hold a
hearing at which he could call Jesse to testify. He does not state whether Jesse
would waive his Fifth Amendment privilege to exonerate him at trial. Dustin
asserts “a further showing will be made” about Jesse’s willingness to testify, but
does not explain why that showing could not have been made to the magistrate
judge or this court. (Docket 95 at p. 3).
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The court is left only with the Dustin’s self-serving representations in his
briefing. The proposed testimony—that Dustin’s involvement in the offenses
was limited to providing transportation—would corroborate Ms. Wolfe’s
statement in several respects and would place Jesse at the scenes of some of the
alleged assaults. It would be highly incriminatory. The court will not lightly
infer that Jesse is willing to damage his own trial prospects to exonerate his
brother. The court concludes Dustin “neglected to offer a firm representation
that [Jesse] [is] willing to testify, but simply stated that he w[ill] call [Jesse] to
testify and that h[is] testimony w[ill] exculpate him.” Crumley, 528 F.3d at
1063. This is not enough.
The court finds the magistrate judge did not clearly err in denying Dustin’s
motions to sever. The court affirms her order denying severance, as modified by
this order. Dustin’s objections to the contrary are overruled.
IV. Remaining Motions
As noted above, Jesse did not object to any of the magistrate judge’s R&Rs
or orders. Much of the analysis in this order rejecting Dustin’s objections
encompasses Jesse’s arguments made to the magistrate judge as well. The
court reviewed the magistrate judge’s rejections of Jesse’s motions and finds no
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error, clear or otherwise.11 The court adopts or affirms, as appropriate, the
portions of the magistrate judge’s R&Rs and order pertaining to Jesse.
ORDER
For the reasons given above, it is
ORDERED that defendant Dustin Sierra’s objections to the magistrate
judge’s order denying severance (Docket 95) are overruled.
IT IS FURTHER ORDERED that the magistrate judge’s order denying
severance (Docket 92) is affirmed as modified by this order.
IT IS FURTHER ORDERED that defendants’ motions to sever (Dockets 69,
73 & 74) are denied.
IT IS FURTHER ORDERED that defendant Dustin Sierra’s objections to
the magistrate judge’s report and recommendation concerning the motions to
dismiss (Docket 94) are overruled.
IT IS FURTHER ORDERED that the magistrate judge’s report and
recommendation concerning the motions to dismiss (Docket 91) is adopted as
modified by this order.
IT IS FURTHER ORDERED that defendants’ motions to dismiss (Dockets
71 & 73) are denied.
11A district court’s standard of review of a magistrate judge’s R&R or order
to which no party objects is not well defined in this circuit. Boss v. Ludwick,
863 F. Supp. 2d 845, 852-53 (N.D. Iowa 2012) (concluding review for clear error
is appropriate).
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IT IS FURTHER ORDERED that defendant Dustin Sierra’s objections to
the magistrate judge’s report and recommendation concerning his suppression
motion (Docket 93) are overruled.
IT IS FURTHER ORDERED that the magistrate judge’s report and
recommendation concerning defendant Dustin Sierra’s suppression motion
(Docket 90) is adopted as modified by this order.
IT IS FURTHER ORDERED that defendant Dustin Sierra’s motion to
suppress (Docket 66) is denied.
IT IS FURTHER ORDERED that a scheduling order returning this case to
the trial calendar shall issue.
Dated May 5, 2020.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
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