United States District Court, E.D. Wisconsin
ORDER ON DEFENDANT'S MOTION TO SEVER
WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE.
November 17, 2016, defendant Jaboree Williams moved to sever
Counts Seven and Eight of his original indictment (ECF No.
21) from the remaining counts in the indictment. (ECF No.
49.) Count Seven charged Williams with conspiring to
distribute heroin, and Count Eight charged Williams with
distributing heroin resulting in the overdose of a
third-party, “V-4.” (ECF No. 21). The remaining
counts in the original indictment charged Williams with sex
trafficking (Counts One through Six) and evidence destruction
December 13, 2016, the government filed a nineteen-count
superseding indictment against Williams. (ECF No. 62.) The
offenses charged in Count Seven and Eight of the original
indictment became Counts Nine and Ten of the superseding
indictment. (ECF Nos. 21, 62.) The other added counts
concerned evidence obstruction, interference with grand jury
investigation, and violations of the court's no contact
order. (ECF No. 62.)
next day, December 14, 2016, the government filed a response
to the defendant's motion to sever (ECF No. 61) without
addressing the impact the superseding indictment would have
on Williams's motion to sever. Williams's reply (ECF
No. 64) also did not address the differences between the
original and superseding indictments. Nevertheless, the
motion has not been withdrawn. Being fully briefed (ECF Nos.
49, 61, 64), the motion is ready for resolution.
sets forth three reasons why the two drug distribution counts
should be severed from the other counts in the indictment.
First, he argues that Federal Rule of Criminal Procedure 8(a)
does not allow joinder because the drug trafficking acts and
the sex trafficking acts did not constitute the same act or
transaction nor are they connected by a common scheme or
plan. Next Williams asserts that under Federal Rule of
Criminal Procedure 14(a) he will be prejudiced by joinder of
all of the counts. Lastly, Williams says that he will also be
prejudiced by joining all of the counts in one trial because
he has determined that he likely would testify in a
trial regarding human trafficking but likely would not
testify in a trial regarding drug trafficking.
government contends that Williams's drug trafficking and
sex trafficking are connected with a common scheme or plan
and that the evidence introduced at a sex- trafficking trial
will substantially overlap with the evidence presented at a
drug trafficking trial. The government asserts that one of
the victims of sex trafficking identified in the indictment,
“V2, ” will testify about how her involvement in
the sex trafficking crimes motivated her to participate in
the drug trafficking crimes. The government's theory is
that Williams's sex trafficking offenses involving V2
gave him extreme control over her to the point where she was
willing to aid in his drug trafficking. V2's testimony
regarding the sex trafficking and drug trafficking will be
Rule of Criminal Procedure 8(a) permits joinder of offenses
if they 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.”
Typically, courts judge the propriety of joinder based upon
the face of the indictment rather than the evidence that
supports that indictment. United States v. Berg, 714
F.3d 490, 495 (7th Cir. 2013) (quoting United States v.
Lanas, 324 F.3d 894, 899 (7th Cir. 2003)) (“[I]n
assessing whether joinder was proper, we look solely to the
face of the indictment and not to the evidence adduced later
at trial.”); United States v. Alexander, 135
F.3d 470, 475 (7th Cir. 1998) (“In assessing the
propriety of joinder under this rule, we look solely to the
face of the government's indictment and not to any
evidence ultimately presented at the defendant's
trial.”); United States v. Coleman, 22 F.3d
126, 132 (7th Cir. 1994) (quoting United States v.
Quintanilla, 2 F.3d 1469, 1482 (7th Cir. 1993)
(“The test of misjoinder is what the indictment
charges, not what the proof at trial shows.”)).
economy and convenience are the chief virtues of joint
trials.” United States v. Coleman, 22 F.3d
126, 132 (7th Cir. 1994). Thus, “there is a strong
policy preference in favor of the joinder of qualifying
charges and [Rule 8a] must be broadly characterized toward
that end.” Alexander, 135 F.3d at 475 (7th
Cir. 1998). Whether efficiencies will be realized often
depends upon the extent of evidentiary overlap between the
joined charges. Coleman, 22 F.3d at 132.
“Separate counts that involve much of the same evidence
would, if tried separately, engender duplicative efforts at
trial. On the other hand, separate counts that for the most
part depend on separate evidence save fewer steps when tried
court begins with an analysis of the face of the superseding
indictment. While Williams originally brought this motion to
sever on the basis of the original indictment, that
indictment was superseded on December 13, 2016. (ECF No. 62).
Count Nine of the Superseding Indictment reads:
Beginning in approximately January of 2015, and continuing
through July of 2015, in the State and Eastern District of
Wisconsin, Jaboree Williams knowingly and intentionally
conspired with persons known and unknown to the grand jury,
to possess with the intent to distribute and distribute
controlled substances, including a mixture and substance
containing heroin, a Schedule I controlled substance, in
violation of Title 21, United States Code, Section 841(a)(1).
All in violation of Title 21, United States Code, Sections
841(a)(1), 841(b)(1)(C) and 846.
(ECF No. 62 at 9). Count Ten of the Superseding Indictment
1. On or about June 20, 2015, in the State and Eastern
District of Wisconsin, Jaboree Williams knowingly distributed
a mixture and substance containing heroin, a Schedule I
controlled substance. 2. Serious bodily injury, including the
heroin overdose of V-4, resulted from the use of the heroin
distributed. All in violation of Title 21, United States