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United States v. Dyer

United States District Court, E.D. Wisconsin

November 29, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
TODD A. DYER, NICHOLAS C. HINDMAN, SR., and MELVIN E. KRUMDICK, Defendants.

          ORDER

          J.P. Stadtmueller U.S. District Judge

         Before the Court are two rulings from Magistrate Judge Jones. The first is Magistrate Jones' October 28, 2016 Report and Recommendation on motions to dismiss filed by Defendants Nicholas Hindman (“Hindman”) and Melvin Krumdick (“Krumdick”), and a motion to modify and narrow the indictment filed by the government. (Docket #150). The second is Magistrate Jones' October 28, 2016 order denying Hindman's and Krumdick's motions to sever. (Docket #151). For the reasons stated below, both rulings will be adopted in full.

         First, the Report and Recommendation will be adopted because no objections to it have been filed. In his Report and Recommendation, Magistrate Jones found that the government's motion to modify and narrow the indictment was mooted by the filing of a superseding indictment in this case. (Docket #150 at 4). Likewise, Magistrate Jones concluded that Hindman's and Krumdick's motions were largely mooted by the superseding indictment, since it remedied the alleged deficiencies in the original indictment. Id. at 5. Moreover, to the extent the motions to dismiss were not wholly mooted by the superseding indictment, Magistrate Jones recommended that they be denied on their merits, reasoning that Defendants asked the Court to be overly technical in its assessment of the validity of the indictment. Id.

         In his Report and Recommendation, the Magistrate noted that any objections to his findings and recommendations were to be filed no later than fourteen days from issuance thereof. Id. at 6; see also 28 U.S.C. § 636(b)(1)(B) and (C); Fed. R. Crim. P. 59(b); Gen. L. R. 72(c). That deadline was November 11, 2016. Although the parties filed objections to Magistrate Jones' order denying their motions to sever, they failed to raise any objection to any of his findings or conclusions in his Report and Recommendation issued on the same date. The Court, having reviewed the report and recommendation and having received no objections thereto, will adopt it in full.

         Second, the Court will overrule Hindman and Krumdick's objections to the magistrate's order denying their motions to sever. On September 21, 2016, these two Defendants both filed motions to sever their trials from that of their pro se co-defendant, Todd Dyer (“Dyer”). (Docket #120 and #124). The arguments raised in each motion were nearly identical. Both argued that severance was appropriate under Federal Rule of Criminal Procedure 14 because trying all counts in the same trial would cause them unfair prejudice.

         On October 28, 2016, Magistrate Jones issued an order denying both motions. (Docket #151). In the order, the magistrate noted that courts enjoy discretion to order separate trials of counts if it appears that the joinder of offenses would prejudice a defendant. Fed. R. Crim. P. 14. However, a defendant seeking severance must make “a strong showing of prejudice.” United States v. Moya-Gomez, 860 F.2d 706, 767-68 (7th Cir. 1988). The Supreme Court has explained that “a district court should grant a severance under Rule 14 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.” Zafiro v. United States, 506 U.S. 534, 539 (1993).

         Magistrate Jones analyzed the four circumstances in which severance is usually appropriate: “(1) conflicting and irreconcilable defenses; (2) a massive, complex amount of evidence that makes it almost impossible for the jury to separate evidence as to each defendant; (3) a co-defendant's statement that incriminates the defendant; and (4) a gross disparity of evidence between the defendants.” United States v. Clark, 989 F.2d 1490, 1499 (7th Cir. 1993). Both Hindman and Krumdick complained that there is a vast amount of evidence in this case, most of it relating to Dyer, which the jury will unfairly consider against them. (Docket #150 at 4-5). Further, both Defendants are afraid that Dyer will make inflammatory and damaging statements at trial that they will not have an opportunity to rebut through cross-examination. Id. As the magistrate perceived it, Defendants raised the following concerns: (1) potential violations of Bruton v. United States, 391 U.S. 123 (1968); (2) mutually antagonistic defenses; and (3) the complexity and disparity of evidence. Id. at 5.

         Magistrate Jones rejected each argument. First, he noted that Dyer's pro se status did not give Hindman and Krumdick an automatic right to sever. Id. at 5-6; United States v. Oglesby, 764 F.2d 1273, 1276 (7th Cir. 1985). Instead, courts can minimize and remediate possible prejudice resulting from a pro se co-defendant by appointing standby counsel, warning the pro se defendant regarding his conduct and statements at trial, and instructing the jury at several stages of the proceeding. Oglesby, 764 F.2d at 1276. Krumdick and Hindman contended that those measures would be insufficient to avoid unfair prejudice in this case, but the magistrate found that “their arguments amount to speculation and are therefore not grounds to support severance.” (Docket #150 at 6.)

         The magistrate also rejected Defendants' allegation that failure to sever would result in a Bruton violation. In that case, the Supreme Court held that admission of a co-defendant's confession inculpating the defendant at a joint trial where the co-defendant does not testify, and therefore cannot be cross examined, violates a defendant's Sixth Amendment right to confrontation. Bruton, 391 U.S. at 127-28. Krumdick and Hindman failed to specify what co-defendant statement or confession might implicate Bruton and the Confrontation Clause. (Docket #150 at 6). Magistrate Jones found their Bruton allegations premature since, prior to trial, it cannot be known “whether any inculpatory statements exist, whether these co-defendants will testify at trial, and whether the statements were made in furtherance of the charged conspiracy.” Id.

         Third, Magistrate Jones found unavailing Defendants' argument that there were mutually antagonistic defenses at play which warranted severance. This situation arises “where acceptance of one defendant's position precludes the acquittal of the other defendant.” United States v. Turk, 870 F.2d 1304, 1306 (7th Cir. 1989). However, “[s]imple blame-shifting, ” standing alone, does not support severance. United States v. Goines, 988 F.2d 750, 781 (7th Cir. 1993). And even if mutually antagonistic defenses exist, the defendant seeking severance must still demonstrate “prejudice to a specific right.” United States v. Mietus, 237 F.3d 866, 873 (7th Cir. 2001). As with their other arguments, here the magistrate found that Defendants' overbroad assertions of possible prejudice fell short of identifying the specific right in danger and the specific manner in which prejudice would arise. (Docket #150 at 7).

         Lastly, Magistrate Jones denied the motion for severance on the ground that the evidence is too complex and there is a disparate amount of evidence against Krumdick and Hindman as opposed to Dyer. Even if such a disparity exists, the magistrate reasoned, “other less dramatic alternatives [than severance] should first be explored.” Id. at 7-8 (citing United States v. Papia, 560 F.2d 827, 837 (7th Cir. 1977)). Such alternatives include limiting instructions from the court, which are particularly effective when one considers the presumption that juries will follow the instructions given to them to consider each defendant separately and will view the evidence through that lens. United States v. Stillo, 57 F.3d 553, 557 (7th Cir. 1995). The generalized fear of “spill-over guilt, ” expressed by Hindman and Krumdick, was inadequate to demonstrate to the magistrate that severance was appropriate, especially since limiting instructions or other measures might mitigate possible prejudice. (Docket #150 at 8) (citing United States v. Lopez, 6 F.3d 1281, 1286 (7th Cir. 1993)). In sum, noting that “[t]here is a strong preference that co-conspirators be jointly tried, particularly when they were indicted together, ” United States v. Alviar, 573 F.3d 526, 539 (7th Cir. 2009), Judge Jones concluded that Hindman and Krumdick's “speculative claims of harm” were insufficient to overcome that presumption and support severance, (Docket #150 at 9).

         On November 10, 2016, Krumdick filed an objection to the magistrate's order. (Docket #159). The next day, Hindman filed a similar objection. (Docket #160). The government filed a response to the objections on November 19, 2016. (Docket #168). Federal Rule of Criminal Procedure 59(a) governs the district court's review of a magistrate judge's ruling on a non-dispositive matter, such as Defendants' motions to sever. Parties have fourteen days to file “specific written objections” to a magistrate judge's non- dispositive pretrial order. Fed. R. Crim. P. 59(a). When reviewing the magistrate's order, the Court is obliged to analyze any timely objections and must “modify or set aside any part of the order that is contrary to law or clearly erroneous.” Id.

         The Court finds nothing raised in Defendants' objections warranting reversal of the magistrate's order. In their objections, Defendants largely rehash the arguments previously made. First, they contend that because the vast bulk of the evidence is directed at Dyer, not them, the jury will undoubtedly and unfairly consider that evidence in determining Hindman and Krumdick's guilt. (Docket #159 at 1); (Docket #160 at 2-3). Second, Defendants argue that Dyer's pro se status and his “history of inflammatory and unpredictable statements” shows that he will make prejudicial statements during trial. (Docket #159 at 2-4); (Docket #160 at 1-2). Third, Defendants point to statements Dyer has made in pretrial emails in an effort to show that the admission of such statements at trial will constitute Bruton violations. (Docket #159 at 2-4); (Docket #160 at 2).

         Defendants' concerns are, as the Court found, mere speculation which, even if they come to fruition, are better addressed by curative measures taken at trial. Assuming that the evidence at trial will be sparser with respect to Hindman and Krumdick, Defendants do not show how limiting instructions or other measures will fail to allay their concerns. Granted, Defendants do not believe such instructions will work, but their unilateral belief does not convince the Court that harsher curative measures, such as severance, are warranted. Alviar, 573 F.3d at 539 (“In all but the ‘most unusual circumstances, ' the risk of prejudice arising from a joint trial is ‘outweighed by the economies of a single trial in which all facets of the crime can be explored once and for all.'”) (quoting United States v. Velasquez, 7 ...


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