USA v. Farrier-Fortner

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
BRIAN JACKSON,
Defendant.
CR. 20-50006-JLV
ORDER
UNITED STATES OF AMERICA,
Plaintiff,
vs.
TODD DEUTSCH,
Defendant.
CR. 20-50137-01-JLV
ORDER
The government filed a motion for joinder of the above-captioned cases. 	(CR.
20-50006, Docket 69; CR. 20-50137-01, Docket 100). 	Defendant Brian Jackson
filed a response indicating he did not oppose joinder. 	(CR. 20-50006, Docket 70).
Defendant Todd Deutsch filed an amended response opposing joinder. 	(CR.
20-50137-01, Docket 102).
On January 22, 2020, defendant Brian Jackson was charged in a
single-count indictment with conspiracy to distribute methamphetamine in
violation of 21 U.S.C. §§ 846, 841(a) and 841(b)(1)(A). 	(“Jackson indictment”).
(CR. 20-50006, Docket 1). 	The Jackson indictment charges the following time
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period: “Beginning at a time unknown to the Grand Jury but no later than
August 2019, and continuing to on or about the date of this Indictment . . . .”
Id., Docket 1.
On October 22, 2020, defendants Todd Deutsch and Lisa Farrier-Fortner
were charged in a single-count indictment with conspiracy to distribute
methamphetamine in violation of 21 U.S.C. §§ 846, 841(a) and 841(b)(1)(A).
(CR. 20-50137, Docket 1) (“Deutsch indictment”). 	The Deutsch indictment
charges the following time period: “Beginning at a time unknown to the Grand
Jury but no later than on or about March 2018, and continuing to on or about
the date of this Indictment . . . .” 	Id., Docket 1. 	Ms. Farrier-Fortner entered
into a plea agreement with the government and pled guilty to the indictment.
See CR. 20-50137-02, Dockets 93 & 96). 	Ms. Farrier-Fortner is awaiting
sentencing and will not be discussed further in this order.
The government asserts joinder is proper under Fed. R. Crim. P. 8(b) and
13 because the defendants are alleged to be participants in the same drug
conspiracy. 	(CR. 20-50137-01, Docket 100 at p. 2). 	The government submits
the evidence will show Mr. Deutsch and Mr. Jackson “could have been charged
in a single indictment. 	Initially, this was not done for strategic reasons, which
are no longer relevant.” 	Id. 	The government represents that several witnesses
“link the defendants and will testify regarding each defendant.” 	Id. 	The
government contends “many of the witnesses are in Bureau of Prisons custody
around the United States and a joint trial would allow those witnesses to be
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brought to Rapid City one time, instead of twice, which would be less
burdensome and more efficient.” 	Id. 	The government “anticipates calling
approximately 14-20 witnesses, many of whom will testify about both
[defendants].” 	Id. at p. 4. 	The government argues:
[T]he evidence will show that Deutsch and Jackson were involved
closely in the conspiracy, oftentimes Deutsch would be seen at
Jackson’s 	home 	when 	law 	enforcement 	was 	conducting
surveillance. 	It is anticipated co-conspirators will testify as to
statements made by [both defendants], which [will] be admissible
against both defendants under FRE 801(d)(2)(3).
Id. at p. 5. 	The government represents “[t]here is no evidence to indicate a
potential issue under Bruton v. United States, 391 U.S. 123 (1968).” 	Id.
Mr. Deutsch opposes joinder. 	(CR. 20-50137-01, Docket 102). 	He
argues the “discovery does not identify any joint activity between himself and
Jackson. 	Deutsch has no knowledge of any government witness that will testify
against both him and Jackson.” 	Id. at p. 1. 	Mr. Deutsch contends his trial has
been set for several months on a date agreed upon by both the defendant and the
government. 	Id. at p. 2. 	Because the parties were not originally jointly
indicted, Mr. Deutsch argues it is the government’s burden “to show an absence
of prejudice from the proposed joinder.”1 	Id. 	Mr. Jackson submits the
government fails to provide “any explanation for its decision to move for joinder
1 Mr. Deutsch acknowledges had the defendants been jointly charged in a
single indictment, it would have been his burden under Fed. R. Crim. P. 14 in
seeking severance to show prejudice to him by an improper joinder. 	(CR.
20-50137-01, Docket 102 at p. 2).
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at this juncture” after agreeing to separate trials on specific dates as to each
defendant. 	Id. at p. 3.
In response, the government contends that while it has only provided
redacted discovery up to this time, the unredacted discovery “will connect [Mr.
Deutsch] and Jackson together in this conspiracy.” 	(Docket 104 at p. 3).
According to the government, “three main witnesses . . . will provide the greatest
amount of information at trial link[ing] the defendant and Jackson together in
the conspiracy.” 	Id. 	In addition, the government submits law enforcement
surveillance and telephone records “show the two defendants in contact with
each other.” 	Id. 	Finally, the government argues “since the two have been
indicted, the investigation . . . continued and more evidence has come forward
linking the two together after indictment.” 	Id. at p. 5 (emphasis in original).
Fed. R. Crim. P. 8 permits the joinder of defendants. 	That rule provides:
Joinder of Defendants. 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). 	Rule 13 similarly permits the court to conduct a joint trial
of separate cases. 	“The court may order that separate cases be tried together as
though brought in a single indictment . . . if all of the offenses and all of the
defendants could have been joined in a single indictment . . . .” 	Fed. R. Crim. P.
13.
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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).
The court finds the inconvenience and expense of separate trials clearly
outweigh any prejudice to Mr. Deutsch in joinder. 	The only troubling factor is
that the separate indictments charge different beginning dates for the
commencement of the alleged conspiracy. 	To rectify this conflict, the
government should within 30 days seek a superseding indictment jointly
charging the defendants with a specific starting date of the alleged conspiracy.
ORDER
Based on the above analysis, it is hereby
ORDERED that the government’s motions for joinder (CR. 20-50006,
Docket 69; CR. 20-50137-01, Docket 100) are granted.
IT IS FURTHER ORDERED that the scheduling order (Docket 87) in CR.
20-50137-01 is vacated.
IT IS FURTHER ORDERED that CR. 20-50006 and 20-50137-01 are
consolidated and all future pleadings shall be filed in CR. 20-50006 .
IT IS FURTHER ORDERED that the scheduling order (Docket 68) in CR.
20-5006 is vacated and a new scheduling order will be issued.
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IT IS FURTHER ORDERED that the consolidated caption in CR. 20-50006
shall identify the defendants in the following order: “Brian Jackson” and “Todd
Deutsch.”
Dated April 25, 2022.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
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