USA v. Clark, et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA, CR. 20-50051-01, 04, 05, 07, 08, 09,
10, 11, 12, 13, 14 & 15-JLV
Plaintiff,
vs. ORDER
CHARLES CLARK,
ERIK ANAYA,
JENNIFER CLARK,
MATTHEW FOSTER,
MARTIN SHAW, .
DELAINE MARTINEZ,
TIANA ROUNTREE,
STEPHEN JORDAN,
MASON COLBATH,
CHRISTINA KRUSE,
KELLEY BLEVINS, and
ROBERT BRENDON,
Defendants.
INTRODUCTION
Defendant Tiana Rountree filed a motion and supporting brief to sever
her case from the case of her co-defendants. (Dockets 209 & 210). The
government opposes the defendant's motion. (Docket 224). For the reasons
stated below, the defendeint's motion to sever is denied.
ANALYSIS
A superseding indictment charged Ms. Rountree and 14 other defendants
with a single count of conspiracy to distribute a controlled substance,
Case 5:20-cr-50051-KES Document 248 Filed 04/13/21 Page 1 of 11 PageID #: <pageID>

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 8464
(Docket 171 at pp. 1-2). Defendant Charles Clark is also charged in count 2
with possession of a firearm during a drug trafficking crime in violation of
18 U.S.C. § 924(c)(l)(A)(i). at p. 2.
Ms. Rountree filed a motion pursuant to Fed. R. Crim. P. 14(a) to sever
her case from the case of the other defendants. (Docket 209). Ms. Rountree
contends the discovery received thus far fails to contain an "allegation that all
the co-defendants were aware of the other's [sic] alleged involvement in the
distribution and possession with intent to distribute methamphetamine."
(Docket 210 at p. 2). She also contends "[njot all defendants even know each
other." l±
Ms. Rountree argues she "will be prejudiced by her joinder with co-
defendants . . .[because] the acts complained of[are] generally wholly separate,
apart and distinct from the acts complained of against the other co-
defendants." at p. 4. She submits the "crimes are factually distinct, and
have no relationship with each other except they allegedly involve the
distribution or possession with intent to distribute methamphetamine."
Ms. Rountree believes these crimes "are totally separate and distinct
distributions." li. She believes "[t]here is no evidence that all the defendant's
[sic] even knew each other or knew of the others'involvement in this alleged
conspiracy." 1^
Ms. Rountree argues she will be prejudiced because "the jury will be told
. .. these 15 individuals, although not acting in consort, all did the same
^Two defendants have not yet been arrested so they do not appear in the
caption of this case. Defendant Jennifer Cagle entered into a plea agreement
and is awaiting sentencing. She also does not appear in the caption. See
Dockets 238-39 & 246.
Case 5:20-cr-50051-KES Document 248 Filed 04/13/21 Page 2 of 11 PageID #: <pageID>

criminal acts ... at p. 5. Ms. Rountree contends her "alleged acts are
separate and distinct" such that she "is entitled to have her case tried on its
merits, and not poisoned or associated with the acts of 14 other defendants."
Id. Ms. Rountree believes "[t]he Government will have to put on an entirely
separate case for each co-defendant's allegations." Id.
Finally, Ms. Rountree argues "there exists no evidence that [she] knew
anj^hing about each and every co-defendant's alleged involvement in the
alleged conspiracy." Id^ Because of the "spillover effect," Ms. Rountree believes
she "will suffer prejudice to her constitutional rights because of the allegations
against the other defendants." Id^ For these reasons, Ms. Rountree asks the
court to sever her trial from the trial of the co-defendants. I^ at p. 6.
The government opposes Ms. Rountree's motion. (Docket 224). It
presents the following summary of the evidence binding Ms. Rountree to her
co-defendants.
On October 22, 2019, Charles Clark and Tiana Rountree were
stopped by law enforcement near Rapid City, SO. Law enforcement
had been tracking their vehicle and knew it . . . left Rapid City on
October 20, . . . travelled to Kansas before its' return to South
Dakota. Rountree was driving. During the stop, 3.5 grams of
meth were found as well as a stolen firearm. In October and
November 2019, Rountree had communications with Clark via the
Pennington County Jail email system.
Clark's cell phone content revealed a drug-distribution network in
South Dakota and Kansas. Later investigation revealed Clark and
Rountree had brought between one to two pounds of
methamphetamine to Kansas. Rountree had discussed this trip
with others, including Martin Shaw. Rountree was paid money to
assist in driving during this trip, knowing they were transporting
methamphetamine.
In this conspiracy, methamphetamine was both driven to South
Dakota via couriers and also mailed. On one occasion when a
courier (Erick Anaya) arrived in South Dakota, Rountree and Clark
met with the courier to provide him $5,000 owed for partial
payment of methamphetamine.
Case 5:20-cr-50051-KES Document 248 Filed 04/13/21 Page 3 of 11 PageID #: <pageID>

Rountree's Facebook information also demonstrates her
involvement in the drug conspiracy. She had drug related
conversations with many people, including Clark, Jennifer Clark,
Scott Kallstrom (charged in a separate indictment but the same
conspiracy), Aynjel Schumacher (charged in a separate
indictment), and Martin Shaw.
Surveillance of Clark's house confirmed Rountree at his residence
on January 31, 2020, along with another person. She was inside
his residence for approximately two minutes before exiting to
return to her car. As she exited, she appeared to be concealing
something in her coat. Investigation also revealed Rountree's
association with other co-conspirators, including Mason Colbath.
Rountree received multiple ounces of methamphetamine from
Clark on other occasions which she then further distributed. There
is also evidence Rountree assisted in "middling" methamphetamine
deals of up to % pound within this conspiracy. Further, Rountree
wired money for this conspiracy through Western Union. Overall,
the evidence at trial will support that Rountree knew this
conspiracy involved Mexican suppliers.
A source reported Rountree and Robert Brenden took a trip to get
illegal drugs in the fall of 2019. Other persons have confirmed
they are connected.
Id. at pp. 1-3.
The government contends Ms. Rountree "will be implicated for her
involvement in this conspiracjr" through evidence "includ [ing] witness
testimony, cooperator testimony, controlled purchases, package tracking
Facebook content of those involved, cell phone information and evidence from
various searches conducted." I^ at p. 4. The government submits "[tjhis is a
large scale, complex conspiracy. It is true that not every co-conspirator
personally knew all the other co-conspirators named in the indictment.
However, they were all at least generally aware this was a large conspiracy with
many people." Id. femphasis in original). The government asserts "[i]t is not
necessary that co-defendants in a drug distribution conspiracy know each
4
Case 5:20-cr-50051-KES Document 248 Filed 04/13/21 Page 4 of 11 PageID #: <pageID>

other." freferencing United States v. Gelding. No. 4:17-CR-297, 2018 WL
2690110, at *12 (E.D. Mo. June 5, 2018), report and recommendation adopted,
No. 4:17CR297, 2018 WL 3545202 (E.D. Mo. July 24, 2018)).
The government argues severance of Ms. Rountree for trial "would
amount to conducting the same trial multiple times." at p. 5. It contends
Ms. Rountree "has not set forth how she would be prejudiced by a trial with her
co-conspirators, other than to generally argue 'the juiy will hear evidence
against other defendants which may be more prejudicial th[an] that against
Tiana Rountree.'" (citing Docket 210 at p. 4). The government submits it
"will offer evidence that establishes the overall conspiracy." Id. at p. 6. The
government asserts it "is unaware of any problems under Bmtpn,^ ... as [the
government] anticipates the persons who named the defendant as being
involved will testify."
"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). "Ifjoinder 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)). The United States Court of Appeals for the Eighth Circuit instructs
^United States v. Bruton. 391 U.S. 123, 126 (1968)("We hold that,
because of the substantial risk that the jury, despite instructions to the
contrary, looked to the incriminating extrajudicial statements in determining
petitioner's guilt, admission of[a co-defendant's] confession in this joint trial
violated petitioner's right of cross-examination secured by the Confrontation
Clause of the Sixth Amendment.").
Case 5:20-cr-50051-KES Document 248 Filed 04/13/21 Page 5 of 11 PageID #: <pageID>

"U]oinder must be viewed on a case by case basis." Haggard v. United States.
369 F.2d 968, 974 (8th Cir. 1966).
"The propriety ofjoinder 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. Gardner. 447
F.3d 558, 560-61 (8th Cir. 2006); see also United States v. Wadena. 152 F.3d
831, 848 (8th Cir. 1998)(The "indictment must reveal on its face a proper basis
for joinder.").
1. Federal Rule of Criminal Procedure 8
Federal Rule of Criminal Procedure 8 directs the joinder of charges
against a defendant. That rule provides:
The indictment . . . may charge 2 or more defendants 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. The defendants may be charged in one or more counts
together or separately. All defendants need not be charged in each
count.
Fed. R. Crim. P. 8(b).
"Federal Rule of Criminal Procedure 8(b) permits joinder of defendants 'if
they are alleged to have participated ... in the same series of acts or
transactions constituting an offense or offenses.'" United States v. Gravatt.
280 F.3d 1189, 1191 (8th Cir. 2002)(quoting Fed. R. Crim. P. 8(b)). "Rule 8(b)
is construed liberally." 1^.(citing United States v. Jones. 880 F.2d 55,62(8th
Cir. 1989)).
Case 5:20-cr-50051-KES Document 248 Filed 04/13/21 Page 6 of 11 PageID #: <pageID>

There is a clear preference for a joint trial of persons charged in a
conspiracy. United States v. Ruiz. 446 F.3d 762, 772 (8th Cir. 2006); see also
United States v. Kime. 99 F.3d 870, 880 (8th Cir. 1996)("Persons charged with
a conspiracy will generally be tried together, especially where proof of the
charges against each of the defendants is based on the same evidence and acts.
Rarely, if ever, will it be improper for co-conspirators to be tried together.")
(citations and internal quotation marks omitted). This clear preference for
joinder, applicable here, may be overcome if the party moving to sever "can
show that the benefits [ofjoinder] are outweighed by a clear likelihood of
prejudice." United States v. Clay, 579 F.3d 919, 927 (8th Cir. 2009)(citation
and internal quotation marks omitted); see also United States v. Pherigo. 327
F.3d 690,693 (8th Cir. 2003)(In "ruling on a motion for severance, a court
must weigh the inconvenience and expense of separate trials against the
prejudice resulting from a joint trial of codefendants. To grant a motion for
severance, the necessary prejudice must be severe or compelling.")(citations
and internal quotation marks omitted).
Ms. Rountree fails to specifically articulate any out-of-court statements
of a co-defendant which may be used at trial and which might tend to
incriminate Ms. Rountree. For that reason, any suggestion of Bruton issues is
not supported in the present record.
The court finds the inconvenience and expense of separate trials clearly
outweigh any prejudice to Ms. Rountree in joinder. Ms. Rountree's objection to
joinder pursuant to Rule 8 is overruled.
Case 5:20-cr-50051-KES Document 248 Filed 04/13/21 Page 7 of 11 PageID #: <pageID>

2. Federal Rule of Criminal Procedure 14
"Under Rule 14, a district court may sever a defendant's trial from the
trial of co-defendants if it appears that a defendant... is prejudiced by a
joinder of . . . defendants in an indictment. . . or by such joinder for trial
together." 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 how the joint trial prejudiced his or
her right to a fair trial." Id^ (citations omitted). The preference for joinder may
be overcome only if a defendant "can show that the benefits [ofjoinder] are
outweighed by a clear likelihood of prejudice." Clav. 579 F.3d at 927 (internal
quotation marks and citations omitted).
"In order to show prejudice, a defendant must establish something more
than the mere fact that his chance for acquittal would have been better had he
been tried separately. [The defendant] must affirmatively demonstrate that the
joint trial prejudiced [her] right to a fair trial." United States v. Shivers.
66 F.3d 938, 940 (8th Cir. 1995)(internal quotation marks and citations
omitted). "Disparity in the weight of the evidence between the codefendants is
not a sufficient reason for severance." United States v. Bordeaux. 84 F.3d
1544, 1547 (8th Cir. 1996)(citations omitted).
"Severance is not required ^simply because the evidence may have been
more damaging against one [defendant] than the others.'" United States v.
Nqe, 411 F.3d 878, 886 (8th Cir. 2005)(quoting United States v. Garcia. 785
F.2d 214, 220 (8th Cir. 1986)). "To prevail on such a claim a defendant must
8
Case 5:20-cr-50051-KES Document 248 Filed 04/13/21 Page 8 of 11 PageID #: <pageID>

show prejudice to a specific trial right or that a joint trial would not enable the
jury to make a 'reliable judgment about guilt or innocence.'" United States v.
Benedict. 855 F.3d 880, 885 (8th Cir. 2017)(quoting United States v. Dierling.
131 F.3d 722, 734 (8th Cir. 1997)).
"[T]he mere fact that one defendant tries to shift blame to another
defendant does not mandate separate trials." Shivers. 66 F.3d at 940 (internal
quotation marks and citations omitted). "[T]he existence of antagonistic
defenses does not require severance unless the defenses are actuedly
irreconcilable. . . . Put simply, mere hostility between defendants or one
defendant's attempt 'to save himself at the expense of another'codefendant is
not a sufficient ground to require severance." (quoting United States v.
Bovd. 610 F.2d 521, 526(8th Cir.1979), cert, denied, 444 U.S. 1089 (1980); see
also United States v. Searing. 984 F.2d 960, 965 (8th Cir. 1993)("The mere fact
that defendants are apparently hostile to one another is not grounds for
severance.").
"To show real prejudice, the defendant must establish that '(a) his
defense is irreconcilable with that of his co-defendant or (b) the jury will be
unable to compartmentalize the evidence as it relates to the separate
defendants.'" United States v. Davis. 534 F.3d 903, 916-17 (8th Cir. 2008)
(quoting United States v. Mickelson. 378 F.3d 810, 818 (8th Cir. 2004)); see
also Pherigo. 327 F.3d at 693 (In "ruling on a motion for severance, a court
must weigh the inconvenience and expense of separate trials against the
prejudice resulting from a joint trial of codefendants. To grant a motion for
Case 5:20-cr-50051-KES Document 248 Filed 04/13/21 Page 9 of 11 PageID #: <pageID>

severance, the necessary prejudice must be severe or compelling.")(internal
quotation marks and citations omitted).
Again, Ms. Rountree fails to specifically articulate any allegations of
Bruton issues. On this record, Ms. Rountree's Bruton argument lacks merit
and does not justify severance.
Ultimately, the question is whether this is the"\anusual case'in which
the efficiency ofjoinder would [be] outweighed by difficulty for the jury to
analyze separately the evidence against each individual defendant." Benedict.
855 F.3d at 885 fquoting United States v. Martin. 777 F.3d 984, 995 (8th Cir.
2015).
"This does not appear to be a complex case or one in which a jury is
likely to be confused and incapable of properly 'compartmentalizing' the
evidence." United States v. Collins. 240 F. Supp. 2d 1078, 1081 (D.S.D. 2002)
(quoting Bordeaux. 84 F.3d at 1547). Even if there was a greater risk of
prejudice, the court could cure it with "limiting jury instructions that each
defendant is entitled to have his case decided solely on the evidence which
applies to him, and that the jury must give separate consideration to the
evidence about each individual Defendant." Benedict. 855 F.3d at 885
(internal quotation marks omitted). Aided by the court's instructions, the court
concludes a jury will be able to "compartmentalize the evidence against each
defendant." United States v. McConnell. 903 F.2d 566, 571 (8th Cir. 1990)
(internal quotation marks and citation omitted). Ms. Rountree fails to "show
that the benefits [ofjoinder] are outweighed by a clear likelihood of prejudice."
Clay. 579 F.3d at 927.
10
Case 5:20-cr-50051-KES Document 248 Filed 04/13/21 Page 10 of 11 PageID #: <pageID>

This is not the "unusual case" where prejudice overrides joinder's
efficiency. Martin. 777 F.3d at 995. The court finds joinder is consistent with
Rule 14.
ORDER
Based on the above analysis, it is
ORDERED that Ms. Rountree's motion to sever (Docket 209) is denied.
IT IS FURTHER ORDERED that a scheduling order will be entered.
Dated April 13, 2021.
BY THE COURT:
Isl leffreyL.
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
11
Case 5:20-cr-50051-KES Document 248 Filed 04/13/21 Page 11 of 11 PageID #: <pageID>