United States v. Jenkins

884 F.Supp.2d 789

UNITED STATES of America, Plaintiff,

v.Arthur JENKINS, Defendant.

Case No. 12–CR–34.

United States District Court, E.D. Wisconsin.

Aug. 15, 2012.

Tracy M. Johnson, United States Department of Justice, Milwaukee, WI, for Plaintiff.

DECISION AND ORDER

LYNN ADELMAN, District Judge.

On February 14, 2012, the government filed an indictment charging defendant Arthur Jenkins with fourteen counts of theft of property of the United States, contrary to 18 U.S.C. § 641. Specifically, the indictment alleged that on fourteen separate dates between August 3, 2010, and September 2, 2011, defendant “stole and converted to his own use and the use of another property belonging to the United States, namely Social Security retirement benefits made payable to and intended for the benefit of B.P.” (Indictment [R. 1] at 2.) Defendant accomplished this theft, the indictment alleged, by assuming control over the account into which the Social Security Administration (“SSA”) direct deposited B.P.'s benefits.

Defendant moved to dismiss the indictment, arguing that it failed to state a federal crime (i.e., that the stolen property belonged to the United States rather than B.P.). On May 3, 2012, I denied the motion, finding the issue one for resolution at trial rather than pre-trial motion.

On May 8, 2012, the government obtained a superseding indictment, adding two additional counts. After re-stating counts one to fourteen, the superseding indictment alleged in count fifteen that defendant unlawfully transmitted or caused to be transmitted in interstate commerce from Missouri to Wisconsin stolen money (i.e., the same fourteen payments involved in the preceding counts), contrary to 18 U.S.C. § 2314. Count fifteen specifically incorporated by reference the common factual allegations from counts one to fourteen. (Superseding Indictment [R. 19] at 3.) In count sixteen, the superseding indictment alleged that:

On or about July 12, 2011, in the State and Eastern District of Wisconsin,

ARTHUR JENKINS

did willfully and knowingly make and cause to be made materially false, fictitious, and fraudulent statements and representations in a matter within the jurisdiction of the Social Security Administration, an agency of the United States. The statements and representations were false because as the defendant knew, he had two open accounts at Northshore Bank, and B.P. lived with him at the time he submitted his application for Supplemental Security Income.

All in violation of Title 18 United States Code, Section 1001.

( Id. at 4.)

Defendant concedes that count fifteen is properly joined with counts one to fourteen but moves to sever count sixteen. See 1A Charles Alan Wright & Andrew D. Leipold, Federal Practice and Procedure § 145, at 104 (4th ed.2008) (stating that the proper remedy for misjoinder is severance). The government opposes the motion. I conclude that count sixteen is not properly joined and therefore grant defendant's motion to sever.

I.

Under Fed.R.Crim.P. 8(a), “The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged—whether felonies or misdemeanors or both—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.” Courts construe this Rule broadly in order to serve the purposes of increasing judicial efficiency and avoiding costly and duplicative trials. United States v. Freland, 141 F.3d 1223, 1226 (7th Cir.1998). Nevertheless, at least one of the Rule's three conditions must be satisfied for proper joinder, and “those conditions, although phrased in general terms, are not infinitely elastic.” United States v. Randazzo, 80 F.3d 623, 627 (1st Cir.1996); see also United States v. Jawara, 474 F.3d 565, 573 (9th Cir.2007); United States v. Cardwell, 433 F.3d 378, 385 (4th Cir.2005); United States v. Kaquatosh, 227 F.Supp.2d 1045, 1046 (E.D.Wis.2002).

In the present case, the parties agree that count sixteen is not based on the same act or transaction, or common scheme or plan, as the other counts. The issue is thus whether it is of “same or similar character” as the other counts. In deciding whether joinder is proper under this clause, the Seventh Circuit looks to the face of the indictment, not the underlying facts. United States v. Alexander, 135 F.3d 470, 475–76 (7th Cir.1998). The court does so because this:

language in Rule 8(a) is a rather clear directive to compare the offenses charged for categorical, not evidentiary, similarities. Further, the similarity of character of different offenses does not significantly depend on their separation in time. Two armored car robberies committed months apart are offenses of same or similar character; possessing five kilograms of cocaine and defrauding a bank, even if they occur on the same day, are not. Simply put, if offenses are of like class, although not connected temporally or evidentially, the requisites of proper joinder should be satisfied so far as Rule 8(a) is concerned.

United States v. Coleman, 22 F.3d 126, 133 (7th Cir.1994) (footnote omitted).

As I discussed in Kaquatosh, while “the same or similar character” prong is the broadest of the three possible bases for joinder in Rule 8(a), it is, contradictorily, the one least likely to serve the purposes of joinder (judicial economy and convenience). 227 F.Supp.2d at 1047. “Offenses arising out of the same act or a common scheme will involve overlapping evidence and if tried together would eliminate duplicative efforts. However, if offenses similar in type but sharing no common evidence, witnesses or victims are joined little time and effort is saved.” Id. Some courts and commentators have accordingly suggested that such offenses should be joined only to the extent that evidence of one would be admissible at a separate trial on the other, under Fed.R.Evid. 404(b), for example. Id. at 1048–49 (collecting sources).

As indicated, the Seventh Circuit favors a categorical approach, see Coleman, 22 F.3d at 133;see also United States v. Jackson, 208 F.3d 633, 638 (7th Cir.2000); United States v. Turner, 93 F.3d 276, 283 (7th Cir.1996), although the court has at times considered evidentiary overlap, including the potential applicability of Rule 404(b), see, e.g., United States v. Traeger, 289 F.3d 461, 473 (7th Cir.2002) (“Additionally, there would have been no point in severing the charges because evidence of the Great Bank attempted robbery would have been admissible in a trial on the LaSalle Bank robbery charge under Federal Rule of Evidence 404(b) to prove identity.”); United States v. Quilling, 261 F.3d 707, 714 (7th Cir.2001) (“Although it is not required that the two counts be related evidentially or temporally, the district court did find these factors to be satisfied in this case.”). One district court has noted that the Seventh Circuit:

has articulated two different standards for determining whether the “same or similar” offenses are properly joined. The first standard is met when the counts refer to the same type of offenses occurring over a relatively short period of time, and the evidence as to each count overlaps. This standard has been called the “short-period-of-time/evidence-overlap” formula. Alternatively, if offenses are of like class, although not connected temporally or evidentially, the requisites of proper joinder should be satisfied so far as Rule 8(a) is concerned.

United States v. Williams, 64 F.Supp.2d 787, 788–89 (C.D.Ill.1999) (internal citations and quote marks omitted).

II.

Counts one to fifteen allege that defendant stole social security retirement benefits intended for B.P., while count sixteen alleges that he made false statements on his own application for SSI benefits. These are two distinct classes of offenses, not properly joined under Rule 8(a). Nor is there sufficient evidentiary overlap to support joinder.

The offenses arise under different statutes involving totally different elements. Counts one to fourteen allege a violation of 18 U.S.C. § 641, which will require the government prove that: (1) the money described in the indictment belonged to the United States; (2) defendant stole or converted that money to his own use; and (3) he did so with the intent to deprive the United States of the use or benefit of that money. Federal Criminal Jury Instructions of the Seventh Circuit 205 (1999). Similarly, count fifteen, which charges a violation of 18 U.S.C. § 2314, will require the government prove that: (1) the property identified in the indictment had been stolen; (2) the property had a value of at least $5000; (3) defendant transported or caused to be transported the property in interstate commerce; and (4) at the time he transported or caused to be transported the property he knew it had been stolen. Id. at 362. While §§ 641 and 2314 contain different jurisdictional elements, the gravamen of both offenses is theft. In order to establish a violation of 18 U.S.C. § 1001, as charged in count sixteen, the government must prove that: (1) defendant made a false statement; (2) the statement was material; (3) he made the statement knowingly and willfully; and (4) the statement was made in a matter within the jurisdiction of an agency of the United States. Id. at 240. Unlike counts one to fifteen, count sixteen does not require the government to establish a theft or loss, or even a financial motive. While offenses need not be of identical statutory origin to be categorically similar, they must correspond in type, see Turner, 93 F.3d at 284; the offenses at issue here are “wholly distinct [and] established on proof of elements unique to [each] offense,” United States v. Hubbard, 61 F.3d 1261, 1270–71 (7th Cir.1995).

The government contends that the offenses fall into the same category of defrauding a government agency, and that they involve the similar objective of unlawfully obtaining money from the SSA. While the SSA...