United States v. Smirnoff

          OPINION AND ORDER

          MYRON H. THOMPSON UNITED STATES DISTRICT JUDGE

         A single indictment charges defendant Michael Brandon Smirnoff with using unreasonable force, in violation of 18 U.S.C. § 242, during two separate arrests that he carried out in 2016 and 2015 as a city police officer. Count One alleges a March 2016 incident, and Count Two a July 2015 incident. Smirnoff moved to sever the two counts, arguing that he would be substantially prejudiced by a joint trial on both. His sole asserted ground for severance is that he “must” testify as to Count Two, but “must not” as to Count One. Motion to Sever (doc. no. 20) at 3.^[1] Because the court is not convinced that a severance is warranted, his motion will be denied.

         I. Background

         Count One alleges that, in March 2016, as an officer with the Police Department for the City of Tallassee, Alabama, Smirnoff used unreasonable force while arresting a person identified as J.M., in violation of his Fourth Amendment rights. Specifically, it states that, while J.M. was handcuffed and without legal justification, Smirnoff slammed him to the ground and used unreasonable force while placing him into a police vehicle, resulting in bodily injury to J.M. See Indictment (doc. no. 1) at 1-2. Smirnoff counters that, on the day of the incident, J.M. was illegally operating an all-terrain vehicle on city streets in Tallassee. See Motion to Sever (doc. no. 20) at 3. Another officer tried to stop J.M., but he refused, leading to an extended chase that culminated with his apprehension in a grassy field. A body camera captured J.M.'s arrest. The footage shows “Smirnoff placing his foot on the back of J.M.'s head. Two other officers are on top of J.M.'s torso and place J.M. in handcuffs.” Id. at 4. J.M. is then “lifted off the ground by ... Smirnoff and another officer. The body camera footage appears to show J.M. being lifted and then falling down to the ground. The two officers once again attempt to stand up J.M., and once again he is elevated and falls to the ground.” Id. J.M. is then “stood up, and he and two officers, one of whom is ... Smirnoff, begin walking towards the police vehicle. As the trio are approaching the vehicle, the footage appears to show J.M. making contact with the rear passenger door.” Id.

         Count Two alleges that, in the prior year, July 2015, Smirnoff used unreasonable force while arresting a person identified as M.S., also in violation of his Fourth Amendment rights. The indictment states that, without legal justification, Smirnoff tasered M.S. after he had been placed in handcuffs, resulting in bodily injury to M.S. See Indictment (doc. no. 1) at 2. Smirnoff counters that he and two other officers responded to a “disturbance” at the Huddle House in Tallassee. Motion to Sever (doc. no. 20) at 5. “Footage from ... Smirnoff's body camera clearly shows that when the officers arrived at the Huddle House, they stumbled into a chaotic situation.” Id. Smirnoff says that he will testify that, initially, the other officers got into altercations--at least one of which was physical--with subjects at the scene, see Id. at 8; that, as he assisted fellow officers, another officer handcuffed M.S. and placed him in front of one of the patrol vehicles; that, after a moment, Smirnoff approached M.S. and escorted him to his patrol vehicle; that, while escorting him, “M.S. was yelling and being disruptive; and that, upon reaching the vehicle, M.S. resisted and attempted to pull away, ” id. At that point, Smirnoff will testify, he tased M.S.'s back for approximately five seconds. See id.

         While Smirnoff's motion does not specify how much of the July 2015 incident is on video, the government alleges that the footage captured the “conduct charged” in Count Two. Government Response (doc. no. 24) at 7. The government further asserts that the “video of Count Two shows that, immediately after tasing M.S., [Smirnoff] taunted him by saying ‘you see the language I f--king speak? There's your f--king rights.'” Id. at 6. Smirnoff admits that “[t]here is no question” that he tased M.S, and that afterwards he used “some colorful language.” Motion to Sever (doc. no. 20) at 5, 8.

         Smirnoff has moved to sever Count One (the alleged March 2016 slamming incident) from Count Two (the alleged July 2015 taser incident), and to try them separately.

         II. Discussion

         A. Joinder

         Although Smirnoff does not raise the issue, the court first finds that joinder of the counts is proper under Federal Rule of Criminal Procedure 8(a). Rule 8(a) allows joinder when separate counts “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.” Fed. R. Crim. P. 8(a). The rule “is construed broadly in favor of initial joinder, ” and the offenses “need only be similar in category, not in evidence.” United States v. Hersh, 297 F.3d 1233, 1241 (11th Cir. 2002). Here, Count One (the alleged March 2016 slamming incident) and Count Two (the alleged July 2015 taser incident) are sufficiently “similar, ” in that they both allege that Smirnoff used unreasonable force while arresting handcuffed people.^[2]

         B. Severance

         Even where joinder is proper under Rule 8(a), Rule 14 of the Federal Rules of Criminal Procedure permits severance if a single trial on all counts would be unduly prejudicial. The resolution of a Rule 14 motion is “left to the discretion of the trial judge.” United States v. Wolford, 614 F.2d 516, 518 (5th Cir. 1980).^[3] The trial court balances “the prejudice to the defendant against the interests of judicial economy.” United States v. Benz, 740 F.2d 903, 911 (11th Cir. 1984). To prevail on a motion for severance, the prejudice must be “severe or compelling.” United States v. Liveoak, 377 F.3d 859, 864 (8th Cir. 2004); see also United States v. Cardwell, 433 F.3d 378, 387 (4th Cir. 2005) (stating that severances “will be rare”; it is “not enough for the defendant to show that severance offers him a better chance of acquittal”); 1A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 222 (4th ed. 2018) (“[T]he mere possibility of prejudice is not enough for severance; courts have said that the risk must be ‘compelling,' ‘specific' and ‘substantial.'”).

         Courts have recognized several types of prejudice that may result from joined counts, including that: “(1) the defendant may become embarrassed or confounded in presenting separate defenses; (2) proof that defendant is guilty of one offense may be used to convict him of a second offense, even though such proof would be inadmissible in a separate trial for the second offense; and (3) a defendant may wish to testify in his own behalf on one of the offenses but not another, forcing him to choose the unwanted alternative of testifying as to both or testifying as to neither.” United States v. Scivola, 766 F.2d 37, 41-42 (1st Cir. 1985) (internal citations omitted); see also Davis v. Coyle, 475 F.3d 761, 777 (6th Cir. 2007) (recognizing that prejudice may also result from the jury using evidence of one charged crime to infer a general criminal disposition, or from cumulating evidence of various charged crimes).

         Where, as here, the basis of the alleged prejudice is that the defendant wishes to testify as to one count but not another, he must satisfy three requirements. Namely, he “must show” (1) that the charges are “distinct in time, place, and evidence”; (2) that he has “important” testimony to offer about one set of charges; and (3) a “‘strong need' not to testify on the other counts.” Hersh, 297 F.3d at 1243 n.15 (quoting United States v. Gardiner, 955 F.2d 1492, 1497 (11th Cir. 1992)).

         To determine whether Smirnoff satisfies these three requirements, the court must first address a threshold evidentiary question: whether under Federal Rule of Evidence 404(b), the video--and other evidence--to prove Count One (the March 2016 incident) would be admissible in a separate trial to prove Count Two (the July 2015 incident), and vice versa? It is in part because the answer to this question is yes--the evidence is m ...