United States District Court, M.D. Alabama, Northern Division
OPINION AND ORDER
H. THOMPSON UNITED STATES DISTRICT JUDGE
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
Because the court is not convinced that a severance is
warranted, his motion will be denied.
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
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.
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,
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.
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.
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). 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
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).
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)).
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 ...