USA v. SIROIS et al

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA, 	)
)
v. 	) 	No. 1:21-CR-00175-LEW
)
KENNETH ALLEN, 	)
)
Defendant 	)
ORDER ON MOTION TO SEVER
Defendant Kenneth Allen, a Farmington-based tax counselor, requests “relief from
prejudicial joinder,” citing Rule 14 of the Federal Rules of Criminal Procedure. 	Def.
Allen’s Motion to Sever (ECF No. 300). The indictment in this matter charges Allen with
Conspiracy to Defraud the United States and Impede and Impair the Internal Revenue
Service, in violation of 18 U.S.C. § 371 (Count Ten), and Tax Fraud in violation of 26
U.S.C. § 7206(2) (Count Twelve). 	The alleged co-conspirators for Count Ten are Lucas
Sirois, alleged to be the ringleader of an illicit marijuana distribution and money-laundering
conspiracy, and David Burgess, Sirois’s financial lieutenant who pleaded guilty to the
trafficking conspiracy, honest services fraud, and the tax-related fraud charged in Count
Ten. Allen maintains that subjecting him to joint prosecution at trial alongside Sirois and
those other defendants who have not entered guilty pleas will deprive him of a fair trial due
to spillover prejudice.
Rule 8(b) permits the joinder of defendants “if they are alleged to have participated
in the same act or transaction . . . constituting an offense.” 	Fed. R. Crim. P. 8(b). 	The
indictment complies with Rule 8 because the charges associated with Lucas Sirois’s alleged
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tax fraud arise out of an act or transaction in which Sirois, Burgess, and Allen participated.
“As a general matter, if joinder is proper under Rule 8(b), then those indicted together are
tried together to prevent inconsistent verdicts and to conserve judicial and prosecutorial
resources.” 	United States v. Martínez, 994 F.3d 1, 12 (1st Cir. 2021) (internal quotation
marks omitted). However, Rule 14 allows a court to provide relief from prejudicial joinder,
including by means of an order “sever[ing] the defendants’ trials.” Fed. R. Crim. P. 14(a).
As the Rule suggests, severance is not the only solution to prejudicial joinder. See Zafiro
v. United States, 506 U.S. 534, 538–39 (1993) (“Rule 14 does not require severance even
if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the
district court’s sound discretion.”). 	Severance is the appropriate remedy only upon a
showing of “a serious risk that a joint trial would compromise a specific trial right . . . or
prevent the jury from making a reliable judgment about guilt or innocence.” Martínez, 994
F.3d at 12 (quoting Zafiro, 506 U.S. at 539).
Based on the indictment, Allen’s alleged complicity is limited to providing tax
arbitrage services to Lucas Sirois, which arbitrage the Government alleges crossed the line
between tax avoidance and tax evasion. Beyond that, the indictment does not suggest that
Allen played any part in the wider alleged conspiracy involving black market marijuana
transactions or money laundering.
Allen has demonstrated the existence of some prejudice. 	Specifically, Allen is to
be tried alongside others who, unlike him, are embroiled in the wider drug-trafficking
conspiracy charge. One of them, Lucas Sirois, is alleged to have joined Allen in the Count
Ten conspiracy. 	Most of the anticipated witnesses and evidence will have nothing to do
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with the charges against Allen, as Allen has no demonstrated connection to any drug-
trafficking activity. Co-defendants will also be tried on charges of money laundering and
bank fraud. 	Allen has no demonstrated connection to money laundering or bank fraud.
While this depicts a typical prejudicial joinder scenario, Allen also faces charges that are
readily 	susceptible 	to 	compartmentalization. 	Both 	the 	trial 	presentation 	and 	my
instructions will make it apparent to the jury that the charges associated with the alleged
tax arbitrage services 	stand apart from the concerns related to 	trafficking, money
laundering, and bank fraud. These distinctions should be easily understandable to the jury.
To the extent the revenue charges share common witnesses with the money laundering and
bank fraud charges, I anticipate that the government’s presentation will differentiate
between the respective charges and defendants, and I will afford ample leeway for cross-
examination 	that 	makes 	the 	distinctions 	clear 	and 	welcome 	requests 	for 	curative
instructions should the need arise. 	Finally, the jury instructions and verdict form will be
drawn to reinforce the lines of demarcation that apply to the charges and those defendants
who stand for trial. With these measures, the jury will be prepared to return a verdict as to
Allen that is not the product of spillover prejudice.
Allen’s Motion to Sever (ECF No. 300) is DENIED.
SO ORDERED.
Dated this 17th day of October, 2023
/s/ Lance E. Walker
UNITED STATES DISTRICT JUDGE
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