United States v. Guardado

• Decision Date: 20 January 2023
• Docket Number: 5:21-CR-50024-JLV-3
• Parties: UNITED STATES OF AMERICA Plaintiff, v. ERIKA JEANETTE GUARDADO Defendant.
• Court: U.S. District Court — District of South Dakota

UNITED STATES OF AMERICA Plaintiff,
v.
ERIKA JEANETTE GUARDADO Defendant.

No. 5:21-CR-50024-JLV-3

United States District Court, D. South Dakota, Western Division

January 20, 2023

ORDER DENYING MOTION TO SEVER (DOC. 122)

DANETA WOLLMANN, United States Magistrate Judge.

Erika Guardado filed a Motion to Sever requesting her case be completely severed from that of her co-defendants, Joe Mendez and Nathan Mendez. (Doc. 122). The United States opposes the motion. (Doc. 131). A grand jury returned an Indictment charging the defendants with Possession with Intent to Distribute a Controlled Substance, namely 500 grams of methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A). (Doc. 44). The pending Motion was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and United States District Court District of South Dakota's Local Rule (LR) 57.11(B).

DISCUSSION

I. Defendants are Properly Joined under Rule 8(b)

When considering a motion for severance, the district court must first determine whether joinder was proper under Rule 8(b) of the Federal Rules of Criminal Procedure. United States v. Darden, 70 F.3d 1507, 1526 (8th Cir. 1995).

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Federal Rule of Criminal Procedure 8(b) provides two or more defendants may be charged in the same indictment “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.”

Guardado does not argue that the defendants are improperly joined under Rule 8(b); joinder is in fact proper. In light of proper joinder of defendants, the issue then becomes whether the joinder is prejudicial, permitting severance.

II. Severance under Rule 14(a)

Severance under Federal Rule of Criminal Procedure 14(a) provides, “[i]f the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires.”

Rule 14 severance should be granted only “if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants[] or prevent the jury from making a reliable judgment about guilt or innocence.” United States v. Zafiro, 945 F.2d 881, 885 (7th Cir. 1991). Serious risks identified by the Supreme Court include circumstances where essential exculpatory evidence available to a defendant tried alone is unavailable in a joint trial, where defendants with drastically different degrees of culpability are tried together in a complex case, and where highly prejudicial evidence that is

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probative of a defendant's guilt is only technically admissible against a codefendant. Id.; United States v. Williams, 507 F.Supp.3d 181 (D.D.C. 2020).

“To grant a motion for severance, the necessary prejudice must be severe or compelling.” United States v. George, 548 F.Supp.2d 713, 720 (D.S.D. 2008). “Because defendants who are jointly indicted on similar evidence from the same or related events should normally be tried together, to warrant severance a defendant must show ‘real prejudice', that is, ‘something more than the mere fact that he would have had a better chance for acquittal had he been tried separately.' ” United States v. Collins, 240 F.Supp.2d 1078, 1081 (D.S.D. 2002) (quoting United States v. Oakie, 12 F.3d 1436, 1441 (8th Cir. 1993).

“A defendant can show real prejudice either by showing that [his] defense is irreconcilable with the defense of [his] codefendant or codefendants or that the jury will be unable to compartmentalize the evidence as it relates to separate defendants.” United States v. Jackson, 64 F.3d 1213, 1217 (8th Cir. 1995). Even though “one of the co-defendants may try to shift the blame to the other” that does “not mandate separate trials.” Collins, 240 F.Supp.2d at 1081; see also United States v. Bordeaux, 84 F.3d 1544, 1547 (8th Cir. 1996).

“Joint trials play a vital role in the criminal justice system” by promoting efficiency and serving “the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.” Id. (internal quotations omitted). “[A] joint trial gives the jury the best perspective on all of the evidence and therefore, increases the likelihood of a correct outcome.” George, 548 F.2d at 720.

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This clear preference for joinder, applicable here, may be overcome if the party moving to sever "can show that the benefits [of joinder] are outweighed by a clear likelihood of prejudice." United States v. Clay, 579 F.3d 919, 927 (8th Cir. 2009). A court must weigh the inconvenience and expense of separate trials against the prejudice resulting from a joint trial of co-defendants. George, 548 F.Supp.2d at 720.

When the risk of prejudice is high, a district court is more likely to determine that separate trials are necessary; however, the risk of prejudice posed by joint trials is best cured by “less drastic measures, such as limiting instructions.” Zafiro v. United States, 506 U.S. 534, 537 (1993).

A. Whether Guardado has Established Prejudice Warranting Severance

When joinder is proper under Rule 8, the defendant seeking to sever his case has the burden to demonstrate how a joint trial would prejudice his right to a fair trial. Darden, 70 F.3d at 1526.

Guardado has three arguments in favor of severance. (Doc. 122, pp. 12). First, Guardado seeks the testimony of her co-defendants. Id. at p. 1. Second, Guardado argues the defendants have “antagonistic defenses.” Id. Third, Guardado seeks to draw the jury's attention to “any in-trial silence of a co-defendant.” Id. at p. 2. The court will address each argument separately.

1. Co-defendant's Testimony

The Eighth Circuit Court of Appeals held that the mere fact that the defendant claimed “he needed a separate trial in order to call co-defendant [] as a witness” was insufficient to demand severance; instead, the defendant must

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show the witness would have “actually would have testified and his testimony would have been exculpatory.” United States v. Blaylock, 421 F.3d 758, 766 (8th Cir. 2005); United States v. Graham, 548 F.2d 1302, 1311-1312 (8th Cir. 1977) (“A defendant is not entitled to severance on the weight of an unsupported possibility that a co-defendant's testimony might be forthcoming at a separate trial.” The “assertion that his co-defendant might testify at a separate trial must find some independent support in the record.” In this case, the court found that “the representation that these defendants might testify at a separate trial is based on nothing more than pure speculation and wishful thinking;” thus the motion to sever was denied.).

“[I]n view of the strong policies favoring joint trials where permissible, the defendant must show that the co-defendant's testimony would be substantially exculpatory. The defendant must show that the co-defendant's testimony would do more than ‘merely tend to contradict a few details of the government's case against [him or her].' ” United States v. Benton, 890 F.3d 697, 714 (8th Cir. 2018) (quoting United States v. DeLuna, 763 F.2d 897, 920 (8th Cir. 1985)); see also United States v. Crumley, 528 F.3d 1053, 1064-65 (8th Cir. 2008) (holding that it is not enough “for a defendant to claim . . . that he needed a separate trial in order to call a co-defendant as a witness. He must show that it is likely his codefendant would have testified, and the testimony would have been exculpatory.”). In deciding whether a co-defendant's testimony would be substantially exculpatory, the district court is entitled to

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take into account “the other trial evidence and the impeachment evidence available to the government.” Oakie, 12 F.3d at 1441.

Guardado asserts she would call one or both of her co-defendants to testify. Thus, the issue is whether the co-defendant would have actually testified and whether that testimony would be exculpatory. Guardado anticipates that her co-defendant's testimony would be “that Guardado rented the pickup from Hertz on January 26, 2021, and she subsequently had no access to the Pickup until they all three departed for South Dakota later on the same day.” (Doc. 122, p. 1). Guardado provided no...