United States District Court, E.D. Wisconsin
ORDER DENYING WITHOUT PREJUDICE DEFENDANT
HAYNIE'S MOTION TO SEVER (DKT. NO. 412)
PAMELA PEPPER United States District Judge
9, 2015, the grand jury returned a sixty-six count indictment
against defendant Haynie and twenty-one other defendants.
Dkt. No. 115. The first count alleges a conspiracy among ten
of the defendants to distribute heroin; the remaining counts
allege that various groups of defendants possessed drugs with
intent to distribute on certain dates, or used communications
facilities to facilitate drug dealing on various dates (and
one defendant was charged as a felon in possession-not
defendant Haynie). Earlier in the case, Judge Joseph
designated the case as complex, due to the scope of the case
and the amount of discovery.
the date of the indictment, three of the twenty-two
defendants have filed executed plea agreements. This leaves
eighteen (18) defendants in a trial posture (although one
other defendant has asked the court for an order directing
the pretrial services office to conduct a pre-plea criminal
history investigation). The court has not yet scheduled a
trial date; a scheduling hearing is set for September 15,
2016 at 3:30 p.m. to hold further discussions.
August 24, 2016, defendant Haynie filed a motion to sever his
case from that of the other defendants, citing Fed. R. Crim.
P. 8(b) and 14(a). Given the arguments in the motion and the
current status of the case, the court will deny that motion.
Haynie first argues that he is misjoined with the other
defendants in the case pursuant to Fed. R. Crim. P. 8(b).
Rule 8(b) states that an 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
rule specifically provides that “[t]he defendants may
be charged in on or more counts together or separately,
” and that “[a]ll defendants need not be charged
in each count.”
One of the indictment in this case alleges that ten of the
twenty-two defendants participated in the heroin conspiracy;
defendant Haynie is one of those ten defendants. Five other
counts allege that defendant Haynie and others (mostly
defendant Rayford Williams) possessed with intent to
distribute and distributed heroin on dates certain. Williams
is one of the defendants with whom Haynie is alleged to have
United States v. Garner, the Seventh Circuit held
that “[i]t is well-established that a conspiracy charge
is a proper basis for joinder under Rule 8(b).”
United States v. Garner, 837 F.2d 1404, 1412 (7th
Cir. 1987) (citing United States v. Bruun, 809 F.2d
397, 406 (7th Cir. 1987)). The court has reiterated that
holding over the years. See, e.g., United States
v. Diaz, 876 F.2d. 1344, 1355-56 (7th Cir. 1989);
United States v. Stillo, 57 F.3d 553, 557 (7th Cir.
1995). Despite this well-established holding, Haynie argues
that he should not be joined with others in this indictment.
In support of his Rule 8(b) misjoinder argument, he simply
states, “The prejudicial joinder arguments below apply
to the defendant's misjoinder argument.” Dkt. No.
412 at 2. As the government notes in its response, this
isn't really an argument in support of misjoinder. Dkt.
No. 425 at 4. The court finds no basis for concluding that
Haynie has been misjoined with the other defendants in this
case under Rule 8(b).
devotes most of his motion to arguing that even if the court
finds that he was properly joined under Rule 8(b), the court
should sever his case from the other defendants' under
Fed. R. Crim. P. 14(a). Rule 14(a) provides that if the
joinder of offenses or defendants “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 “leaves the determination of
risk of prejudice and any remedy that may be necessary to the
sound discretion of the district courts.” United
States v. Rollins, 301 F.3d 511, 517-18 (7th Cir. 2002)
(quoting United States v. Moore, 115 F.3d 1348, 1362
(7th Cir. 1997)). The determination that the district court
must make is one of “balancing the cost of multiple
trials against the possible prejudice inherent in a single
trial . . . .” Id. at 518.
support of his argument that he would be prejudiced by having
to go to trial with the other defendants charged in the
indictment, Haynie states that, “[a]t this stage in the
overall case, there are a number of different factual
scenarios which might develop to cause prejudice at a joint
trial.” Dkt. No. 412 at 3. One of those scenarios, he
states, is the possibility that “evidence inadmissible
against the defendant alone is admissible if the defendants
are tried jointly.” Id. He describes the
evidence that the government has against him-telephone
conversations between Haynie and defendant Rayford
Williams-and then indicates that based on the discussion
among the parties at the last status hearing, it is possible
that only he and one other defendant will go to trial.
Id. at 3-4. Accordingly, he argues that a joint
trial will not promote judicial economy. Id. at 4.
He concludes by saying that “[c]ounsel estimates that
Haynie's trial alone will take 2 days, not 2 weeks if
tried with co-defendants.” Id.
as the court can tell, these disparate (and speculative)
statements boil down to this: Haynie would like to go to
trial as soon as possible, and to have his trial take as
little time as possible. He believes that if his case were
severed from the cases of the other defendants, he could go
to trial right away, whereas he believes that if he remains
one of twenty-two defendants, it will take longer for his
case to go to trial. He believes that if he goes to trial
alone, his case will be over in a fifth of the time it would
take to try all of the defendants. Thus, the
“prejudice” that Haynie identifies is having to
wait to go to trial, and having to be embroiled in trial for
a longer period of time. While Rule 14(a) does not define
“prejudice, ” those issues constitute prejudice
that might not exist were he to be tried alone.
argument is premised on the assumption that trying one
defendant takes less time than trying multiple defendants.
Standing on its own, this is an over-generalization. The
length of a trial, and the length of time it takes to get to
trial, depends on the charges and the evidence. It can take
months to try a single defendant if that defendant is charged
in multiple counts (as defendant Haynie is), or with numerous
separate act, or is faced with factully complex allegations;
it can take days to try multiple defendants on a single,
straight-forward count. The same is true in terms of
Haynie's assumption regarding how quickly the court could
get his case on the calendar. It depends on the court's
calendar, on the availability of witnesses (the
government's and the defendants), the government's
calendar, and the calendar of defense counsel, among other
things. Standing alone, Haynie's arguments that he would
be prejudiced by having to go to trial with others is not
sufficient to outweigh the judicial economy created by trying
him with his co-defendants.
reasoning ignores the fact that practically, he
cannot go to trial alone. Count One charges him with
conspiring with nine other co-defendants. As of the date of
this order, one of the nine defendants charged with defendant
Haynie in Count One has been dismissed (defendant Hines), and
two (defendants David Williams and William Phillips) have
filed executed guilty plea agreements. This leaves six other
defendants with whom defendant Haynie is alleged to have
definition, a conspiracy is an agreement among two or more
people to commit a crime. It is logical that the trial of a
conspiracy involve trying the people who allegedly agreed
with each other in the same trial; the evidence that person A
conspired with person B is similar, if not identical, to the
evidence that person B conspired with person A. While it is
true that under federal law, all of the named members of the
conspiracy do not have to conspire with each other, or even
know each other, each has to have conspired with someone else
in order for a jury to find the defendant guilty of
conspiracy. So, at the very least, defendant Haynie would
have at least one co-defendant at trial. Two of the six other
defendants charged in Count One-Rayford Williams and Brenda
North-also are Haynie's co-defendants in the substantive
counts against him. Again, from a practical standpoint, logic
dictates that Haynie would have at least two co-defendants at
even if the court were to agree that it made sense to sever
something at this point, it does not make sense to
sever defendant Haynie from everyone else. He'd still
have to go to trial with at least two other people, which
likely would mean that he still would suffer the prejudice of
having to coordinate his counsel's schedule with that of
two other defense attorneys, ...