United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
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.
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
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.
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
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).
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.
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.)
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.
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).
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
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.
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).
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 ...