United States v. Bear
| Decision Date | 25 November 2019 |
| Docket Number | CR. 16-50149-03-JLV,CR. 16-50149-02 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JULISSA POOR BEAR and WICAHPE MILK, Defendants. |
| Court | U.S. District Court — District of South Dakota |
A grand jury returned a four-count superseding indictment against Defendant Wicahpe Milk and his co-defendant Julissa Poor Bear. (Docket 181). Count 1 charged the defendants with conspiracy to distribute a controlled substance, methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A); Count 2 charged Mr. Milk with being a prohibited person in possession of a firearm in violation of 18 U.S.C. § 922(g)(1); Count 3 charged Mr. Milk with obstruction of justice in violation of 18 U.S.C. § 1503; and Count 4 charged Ms. Poor Bear with obstruction of justice in violation of 18 U.S.C. § 1503. Id. Mr. Milk filed a motion to sever counts 2 and 3 from count 1 and, in the alternative, to dismiss count 3. (Docket 204). The government resists Mr. Milk's motion. (Docket 206). After briefing was completed, the government obtained a second superseding indictment. (Docket 215). The sole purpose of the second superseding indictment was to correct a defect in Count 2 under Rehaif v. United States, ___ U.S. ___, 139 S. Ct. 2191 (2019).1 For the reasons stated below, Mr. Milk's motions are denied.
Relevant to Mr. Milk, the counts of the indictment charge as follows:
Count 1: Beginning at a time unknown to the Grand Jury but on or about January 2, 2015, and continuing to on or about the date of this Superseding Indictment [October 22, 2019], in the District of South Dakota and elsewhere, the defendants, Julissa Poor Bear and Wicahpe Milk, knowingly and intentionally, combined, conspired, confederated and agreed with persons known and unknown to the Grand Jury, to knowingly and intentionally distribute and to possess with the intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, and salts of its isomers, a Schedule II controlled substance . . . . ["conspiracy count"];
Count 2: On or about August 17, 2016, in Rapid City, in the District of South Dakota, the defendant, Wicahpe Milk, having been previously convicted of a crime punishable by imprisonment for a term exceeding one year, and then knowing he had been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly possess a firearm, namely, a Raven MP-25, .25 caliber pistol, bearing serial number 665342, which had been previously shipped and transported in interstate and foreign commerce . . . . ["firearm count"]; and
Count 3: On or about between November 22, 2016, and July 5, 2017, in the District of South Dakota, the defendant, Wicahpe Milk, did endeavor to corruptly influence, obstruct and impede the due administration of justice in United States v. Milk, 16-CR-50118 and United States v. Poor Bear, et al, 16-CR-50149,2 in the United States District Court for the District of South Dakota, by writing and causing to be delivered letters to a witness to discourage and alter his testimony at such proceedings described above . . . . ["obstruction count"].
Federal Rule of Criminal Procedure 8 directs the joinder of charges against a defendant. That rule provides: "[t]he indictment . . . may charge a defendant in separate counts with 2 or more offenses if the offenses charged . . . are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan." Fed. R. Crim. P. 8(a). "The joinder of offenses pursuant to rule 8(a) is allowed in three situations: (1) when the offenses are of the same or similar character; (2) when the offenses are based on the same act or transaction; or (3) when the offenses are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan." United States v. Rodgers, 732 F.2d 625, 629 (8th Cir. 1984). "Joinder of offenses is proper where the . . . counts refer to the same type of offenses . . . and the evidence as to [the] counts overlaps." United States v. Shearer, 606 F.2d 819, 820 (8th Cir. 1979).
Even though counts of an indictment may be properly joined, the court must determine if under Rule 14 the counts should be severed to avoid undueprejudice to the defendant. The rule provides: "[i]f the joinder of offenses . . . appears to prejudice a defendant . . . the court may order separate trials of counts . . . or provide any other relief that justice requires." Fed. R. Crim. P. 14(a).
"Even if charges are properly joined under Rule 8, a district court may exercise its discretion and sever the charges if the defendant will be prejudiced by the joinder of the two charges." United States v. Garrett, 648 F.3d 618, 625 (8th Cir. 2011). "Severe prejudice occurs when a defendant is deprived of an appreciable chance for an acquittal, a chance that [he] would have had in a severed trial . . . ." Id. at 625-26 (internal citation omitted). "[T]here is a strong presumption against severing properly joined counts . . . [and] [t]he defendant bears the burden of establishing prejudice." Id. at 626. "Where evidence that a defendant had committed one crime would be probative and thus admissible at the defendant's separate trial for another crime, the defendant does not suffer any additional prejudice if the two crimes are tried together." Rodgers, 732 F.2d at 630 (internal citation omitted).
United States v. Payton, 636 F.3d 1027, 1037 (8th Cir. 2011) (internal quotation marks and citation omitted).
"[S]everance of counts [is required] only when a defendant has made a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other." United States v. Jardan, 552 F.2d 216, 220 (8th Cir. 1977) (internal quotation marks and citation omitted). "In making such a showing, it is essential that the defendant present enough information regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other to satisfy the court that the claim of prejudice is genuine and to enable [the court] intelligently to weigh the considerations of 'economy and expedition in judicial administration against the defendant's interest in having a free choice with respect to testifying.' " Id. (internal citation omitted). See also United States v. Possick, 849 F.2d 332, 338 (8th Cir. 1988) (). A defendant does not satisfy this burden by simply suggesting he may want to testify on one count, but not another. Jardan, 552 F.2d at 220.
COUNT 2
Mr. Milk asserts the firearm count must be severed from the conspiracy count because "[t]here is nothing in the indictment alleging that the gun charge was or is related to Milk or that it was related to any drug activity." (Docket 204 at p. 5). Mr. Milk argues United States v. Chavis, 296 F.3d 450 (6th Cir.2002), is an "identical situation" to the case before the court and warrants severance. Id. at pp. 4-5.
The government opposes defendant's motion. (Docket 206). The government contends it Id. at p. 4. Because "there is an evidentiary overlap between charges demonstrating interrelatedness," the government argues "the Eighth Circuit has previously upheld joinder." Id. at pp. 4-5 (referencing United States v. Colhoff, 833 F.3d 980, 983 (8th Cir. 2016).
The court finds joinder of the conspiracy count and the firearm count is proper. Accepting the government's summary of the evidence, the two counts are connected by the same evidence and constitute parts of a common scheme or plan. Fed. R. Crim. P. 8(a). Unlike Chavis, Mr. Milk is alleged to have possessed the firearm during the time of the conspiracy count and there is "a common thread of an overarching criminal scheme connecting these two crimes." Chavis, 296 F.3d at 458. "[E]vidence pertaining to both charges . . . [would be] admissible in separate trials [and Mr. Milk] . . . cannot show a reasonable probability that joinder [would] affect[] the outcome of the proceedings." Colhoff, 833 F.3d at 983-84.
Defendant's motion to sever count 2 is denied.
COUNT 3
Mr. Milk contends the obstruction count must be separated from the conspiracy count and the firearm count because 'the obstruction charge is not based on the same act or transaction as either of the previous charges." (Docket 204 at p. 2). The defendant argues because the obstruction count "is based on two letters that [he] allegedly sent to other inmates at the Pennington County Jail discussing his case, one sent on November 22, 2016, and the other sent on July 5, 2017[,]" the letters "have no relationship with" the other counts. Id. For that reason, Mr. Milk asserts "[t]here is no duplication of evidence on any of the counts." Id. (referencing United States v. Rajewski, 526 F.2d 149 (7th Cir. 1974)).
Mr. Milk argues any "reference to the two letters, if they are as incriminating as the government suggests in this case, is tantamount to an admission that defendant committed the [other] offenses[.]" Id. at p. 3. He claims at trial ...
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