United States District Court, N.D. California
ORDER GRANTING MOTION TO SEVER AND GRANTING IN PART MOTION FOR NOTICE OF RULE 404(B) EVIDCENCE Re: Dkt. Nos. 137, 138
SUSAN ILLSTON, District Judge.
Now before the Court are defendant's motion to sever and defendant's motion for an order requiring the government to provide notice of Rule 404(b) evidence. For the reasons set forth below, the Court GRANTS the motion to sever and ORDERS the government to provide notice of the Rule 404(b) evidence by June 22, 2015.
On November 21, 2013, the grand jury issued an indictment charging defendant Eugene Hill with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); and one count of obstruction of justice, in violation of 18 U.S.C. § 1512(a)(2)(A). On April 10, 2014, the grand jury issued a superseding indictment, containing the original two charges, and also adding one count of robbery affecting interstate commerce, in violation of 18 U.S.C. § 1951(a), and one count of using or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c).
In an order filed July 24, 2014, the Court granted defendant's motion to sever counts one and two from counts three and four. The Court found that "[f]rom the face of the indictment, the only similarity apparent between counts one and two, and counts three and four, is that both count one and count four allege firearms offenses." Dkt. 96 at 3:7-8. The Court noted, "[h]owever, count one charges defendant with being a felon in possession of a firearm, while count four charges him with using or carrying a firearm during and in relation to a crime of violence. While both counts charge conduct taking place within the Northern District of California, the two charges are separated by a gap of more than five months. Additionally, count four alleges that defendant used a firearm during the robbery affecting commerce charged in Count Four [sic], ' which in turn alleges that defendant robbed Victim 2, ' an individual with no apparent relationship to the charges in counts one and two. This vague, thematic similarity is insufficient to support joinder of these charges." Id. at 3:8-15.
On September 11, 2014, the grand jury issued a second superseding indictment charging defendant with the same four counts contained in the superseding indictment. The second superseding indictment adds the new allegations that defendant "is a high-ranking member of KUMI 415 within the Santa Rosa, California, community" and that "KUMI 415 is an African-American prison and street gang that originated in the Bay Area.... Members of KUMI 415 protect the power, territory, reputation, and profits of KUMI 415 through the use of violence, threats of violence, extortion, assaults, robbery, firearms trafficking, and witness intimidation." Second Superseding Indictment ¶¶ 1-2. The second superseding indictment contains a new "Manner and Means" section that states that "[f]rom at least in or around April 2013 through at least in or around September 2013, EUGENE HILL used his status as a high-ranking member of KUMI 415 to gain access to Victim-1 and Victim-2. At various times relevant to this Indictment, EUGENE HILL held Victim-1 and Victim-2 captive using firearms, force, and the threat of physical force. All of these events occurred within a five-mile radius in Santa Rosa, California, an area controlled by KUMI 415." Id. ¶ 3.
With respect to the first victim, the second superseding indictment charges that "[i]n or around September 2013, Victim-1 was informed that KUMI 415 had authorized the murder of Victim-1's relative. On or about September 12, 2013, Victim-1 met with EUGENE HILL in HILL's capacity as a KUMI 415 leader in order to convince EUGENE HILL to cancel the murder. EUGENE HILL, brandishing a.32 caliber Ceska firearm (Firearm-1'), drove Victim-1 to approximately 3 locations in Santa Rosa, California. Victim-1 feared for his life. EUGENE HILL exited the vehicle and began to load a magazine into the Firearm-1 and aim it at Victim-1's face. Although Victim-1 was able to escape, EUGENE HILL continued to look for Victim-1 and make threats against him." Id. ¶ 4.
The second superseding indictment also charges that "EUGENE HILL met and gained access to Victim-2 because of HILL's status as a leader of KUMI 415 within Santa Rosa, California. On or about April 3, 2013, EUGENE HILL, using physical force and the threat of physical force, to rob Victim-2 of half of an ounce of methamphetamine. While robbing Victim-2, EUGENE HILL struck Victim-2 in the face with another firearm (Firearm-2) and broke his cheekbone. EUGENE HILL then held Victim-2 captive while pointing Firearm-2 at him. EUGENE HILL coerced Victim-2 to drive to a large retailer in Santa Rosa, California, to shoplift items for EUGENE HILL under threat of further physical force. While driving around with Victim-2, EUGENE HILL kept Firearm-2 displayed on his lap. All of these actions placed Victim-2 in fear for Victim-2's life." Id. ¶ 5.
The second superseding indictment also alleges "beginning in at least April 2013, EUGENE HILL aided and abetted by others known and unknown to the Grand Jury, engaged in a pattern of intimidating individuals, including Victim-1, through the use of force and the threat of physical force, in order to influence, delay, and prevent testimony against EUGENE HILL." Id. ¶ 6.
Defendant now again moves to sever counts one and two from counts three and four, arguing misjoinder under Federal Rule of Criminal Procedure 8(a), and prejudicial joinder under Federal Rule of Criminal Procedure 14(a). Defendant has also filed a motion seeking an order requiring the government to provide notice of Rule 404(b) evidence by 45 days prior to trial. Specifically, defendant seeks notice of the evidence the government may introduce at trial regarding any uncharged acts of witness intimidation referred to in the second superseding indictment.
I. Defendant's motion to sever
Defendant contends that the new "manner and means" section does not cure the deficiencies of the previous indictment and affords no basis for joining the four counts together. Defendant argues that the face of the new indictment does not show any causal or transactional connection between the April 2013 and the September 2013 allegations, and fails to establish a statutory or evidentiary overlap between the alleged crimes that would allow for a joint trial under Federal Rule of Criminal Procedure 8(a). In response, the government contends that the second superseding indictment shows the similarities between the charged crimes because it charges that defendant used his status as a high-ranking member of KUMI 415 to gain access to both victims; defendant held both victims captive using firearms, force and the threat of physical force within a 5 mile radius in Santa Rosa, California; and defendant drove both victims around in vehicles while holding them captive.
Federal Rule of Criminal Procedure 8(a) provides that an indictment may charge a defendant with two or more offenses if the offenses charged: (1) "are of the same or similar character, " (2) "are based on the same act or transaction, " or (3) "are connected with or constitute parts of a common scheme or plan." The validity of the basis for joinder "should be discernible from the face of the indictment" alone. United States v. Jawara, 474 F.3d 565, 573 (9th Cir. 2006); id. at 572 ("We take the view that because Rule 8 is concerned with the propriety of joining offenses in the indictment, the validity of the joinder is determined solely by the allegations in the ...