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Joinder Appeal Must Prove Prejudice Outweighs Economy

By Robyn Hagan Cain on November 19, 2012 | Last updated on March 21, 2019

The last thing a criminal defendant needs is for a jury to perceive him as "a bad guy." Unfortunately, a defendant charged on drug and firearm counts will likely fall within that cognitive category.

Nonetheless, that risk of prejudice -- by itself -- is not enough to sever charges into separate trials.

The FBI snared Detrek Manchel Tucker in its multi-year investigation of an Oklahoma City gang, the "107 Hoover Crips."

As part of this investigation, the FBI conducted surveillance and made video recordings of an automotive repair shop where the owner was dealing crack-cocaine. The evidence showed that Tucker made "numerous" crack purchases at the auto shop, and that at least two of those purchases occurred when Tucker had what appeared to be a firearm with him.

He was convicted on six drug-related charges, and two felon-in-possession of a firearm and ammunition charges.

On appeal, Tucker argued that the district court erred in refusing to sever the indictment's drug-related counts from the felon-in-possession of a firearm and ammunition counts because there was no nexus between the two sets of counts. The Tenth Circuit Court of Appeals disagreed.

Federal Rule of Criminal Procedure 14(a) states, in relevant part: "If the joinder of offenses ... in an indictment ... appears to prejudice a defendant ... the court may order separate trials of counts ... or provide any other relief that justice requires."

Before the district court, Tucker had the burden to show that the denial of severance would result in 'actual prejudice' to his defense, and that this prejudice would 'outweigh' the expense and inconvenience of separate trials.

Here, Tucker asserted that he suffered prejudice for two related reasons: first, because his drug-related convictions relied on the weak testimony of two cooperating witnesses that both had credibility problems; and, second, if it were not for the evidence presented regarding Tucker being "a previously convicted felon in possession of a firearm and ammunition," the jury would have acquitted him or at least been unable to reach a verdict on the drug-related counts.

The Tenth Circuit noted two flaws in Tucker's arguments.

First, the drug-related convictions were supported by detailed testimony from the government's two cooperating witnesses, describing multiple drug buys at the auto shop, and the testimony was corroborated by video-recording and wiretap evidence. Thus, a reasonable fact-finder would have been able to reach a finding of guilt on his drug-related counts, even if the counts weren't joined with the firearm charges.

Second, the appellate court concluded that, even assuming some appreciable prejudice, the prejudice was not sufficient to outweigh the inconvenience and expense of a separate trial.

Before you file a criminal joinder appeal, keep in mind that you have to prove both that your client was prejudiced by a court's refusal to sever the charges into separate trials and that the prejudice outweighed the court's interest in limiting trial costs.

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