United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
H. MCKINLEY, JR., CHIEF JUDGE UNITED STATES DISTRICT COURT
matter is before the Court on Defendant's Motion to Sever
Counts [DN 52]. Defendant Vance previously moved to sever
Counts 2 and 3; but, despite Vance's argument that the
jury will inevitably conclude that Vance's prior felonies
tend to establish his guilt of the drug charge, Vance offered
no evidence that he would suffer compelling, specific, and
actual prejudice that cannot be cured by a limiting
instruction. (Mem. Op. [DN 46] at 4-5.) As such, the Court
denied his motion, finding joinder proper. (Id.)
Motion to Sever [DN 52] similarly fails. This time, Vance
argues that Count 3 should be severed based on this
Court's most recent opinion [DN 51]. In that opinion, the
Court determined that evidence of Vance's prior
possession of a firearm and ammunition on November 9, 2015 is
admissible as to prove knowledge as an element of
constructive possession for Count 3 under Fed.R.Evid. 404(b).
However, the Court declined to allow the admission of the
evidence resulting from this incident to prove any element of
any other count. Now, Vance argues that "[t]he counts
should be severed under [Fed. R. Crim. P. 14] since a jury
will inevitably consider the very damaging . . . evidence
[from the November 9, 2015 incident] as evidence of guilt not
only for Count 3, for which it is admissible, but
also for Counts 1 and 2, for which it is not
admissible." (Mot. [DN 52] at 2-3 (emphasis in
enough, "[e]ven when joinder is appropriate under Rule
8(a), a district court may, in its discretion, grant the
defendant a severance if it appears that the defendant is
prejudiced by a joinder of the offenses." United
States v. Hang Le-Thy Tran, 433 F.3d 472, 478 (6th Cir.
2006) (citing Fed. R. Crim. P. 14). As such, "[t]he
resolution of a Rule 14 motion is left to the sound
discretion of the trial court and will not be disturbed
absent an abuse of that discretion." Id.
(citing United States v. McCoy. 848 F.2d 743, 744
(6th Cir. 1988)). As this Court previously stated, "[i]n
order to prevail on a motion for severance, a defendant must
show compelling, specific, and actual prejudice."
United States v. Vance, No. 3:16-CR-00070-JHM, 2017
WL 2350234, at *2 (W.D. Ky. May 30, 2017) United States
v. Saadev. 393 F.3d 669, 678 (6th Cir. 2005). To do
this, a defendant must make a strong showing a prejudice,
United States v. Gallo, 763 F.2d 1504, 1525 (6th
Cir. 1985), by proving "that joinder would compromise a
specific trial right or prevent the jury from making a
reliable judgment about guilt or innocence, " Hang
Le-Thy Tran, 433 F.3d at 478 (citing Zafiro v.
United States. 506 U.S. 534, 539 (1993)).
multiple claims against one defendant are joined, "[a]
defendant is prejudiced if the jury would be unable to keep
the evidence from each offense separate and unable to render
a fair and impartial verdict on each offense."
United States v. Rox. 692 F.2d 453, 454 (6th Cir.
1982) (citing United States v. Lane. 584 F.2d 60, 64
(5th Cir. 1978)). However, "absent a showing of
substantial prejudice, spillover of evidence from one [count]
to another does not require severance." Hang Le-Thy
Tran. 433 F.3d at 478 (citing United States v.
Johnson. 763 F.2d 773, 777 (6th Cir. 1985)).
showing has been made. Vance merely posits that the jury will
inevitably consider evidence specifically admitted for Count
3 for all counts. A "jury is presumed capable of
considering each count separately." Vance, 2017
WL 2350234, at *2 (quoting United States v.
White. 543 Fed.App'x 563, 566 (6th Cir. 2013); see
United States v. Cope. 312 F.3d 757, 781 (6th Cir.
2002). Vance's conclusory statement does not suffice to
show compelling, specific, and actual prejudice required for
severance. Additionally, the Sixth Circuit has stated that
"[e]ven where the risk of prejudice is high, 'less
drastic measures, such as limiting instructions, often will
suffice to cure any risk of prejudice.'" United
States v. Driver. 535 F.3d 424, 427 (6th Cir. 2008)
(quoting Zafiro v. United States, 506 U.S. 534, 539, 113
S.Ct. 933, 122 L.Ed.2d 317 (1993)); United States v.
Potter. No. 3:09-CR-138, 2010 WL 2776327, at *4 (E.D.
Tenn. July 14, 2010). Vance advances no argument or proof of
such substantial prejudice that could not be cured by a
limiting instruction. Accordingly, Vance has not met his
burden to prevail on this Motion to Sever.
reasons set forth above, IT IS HEREBY ORDERED that