United States District Court, D. Colorado
ORDER ON MOTIONS TO DISMISS INDICTMENT
William J. Martínez United States District Judge.
matter is before the Court on Defendant Wendy Marie
Yurek's (“Defendant”) Motion for Severance.
(ECF No. 163 (the “Motion”).) For the reasons
explained below, the Motion is denied.
was jointly indicted along with her husband, co-defendant
Daryl Francis Yurek (“Daryl Yurek” or “Mr.
Yurek”). (ECF No. 1.) Both Defendants are jointly
charged in Counts One and Two of the Indictment, while Daryl
Yurek alone is charged in Counts Three, Four, and Five.
(See id.) The factual background of the charges
against Defendants has been set out in several recent and
detailed Orders of the Court, and is not repeated here.
(See, e.g., ECF Nos. 142, 174, 195.) The case is
presently set for a joint trial of both defendants to
commence July 17, 2017.
argues for severance and joint trials pursuant to Federal
Rule of Criminal Procedure 14. (See ECF No. 163
¶ 3.) The relevant portion of Rule 14 provides:
“If the joinder of offenses or defendants in an
indictment, an information, or a consolidation for trial
appears to prejudice a defendant or the government, the court
may order separate trials of counts, sever the
defendants' trials, or provide any other relief that
justice requires.” Fed. R. Crim. P. 14(a).
obtain a severance under Rule 14, a defendant must show
either a “serious risk” of actual prejudice to a
specific protected right or a likelihood that a jury would be
unable to make a reliable decision in a joint trial.
Zafiro v. United States, 506 U.S. 534, 539 (1993);
United States v. Williams, 45 F.3d 1481, 1484 (10th
Cir. 1995). A showing of potential prejudice is not enough to
require separate trials, recognizing the public interest in
economy and expedition in judicial administration. United
States v. Dirden, 38 F.3d 1131, 1140 (10th Cir. 1994).
“There is a preference in the federal system for joint
trials of defendants who are indicted together.”
Zafiro, 506 U.S. at 537. The decision whether to
grant a motion to sever is within the Court's discretion.
Id. at 539.
argues for severance on two distinct grounds, and the Court
addresses each in turn.
Prejudice and “Spillover Effect”
first argues that “[t]he bulk of the factual
allegations in the Indictment are primarily attributable to
Daryl Yurek alone, ” and that the acts for which she is
charged “are ministerial” in nature. (ECF No. 163
¶ 6.) As a result, she argues that she will be unfairly
prejudiced in a joint trial, and further that the jury will
likely view both her and her spouse “as a unit, ”
magnifying the prejudice, (id. ¶ 9), and that
statute of limitations concerns with the allegations of a
lengthy course of conduct will further exacerbate the
prejudice (id. ¶ 10).
the Government disputes Defendant's characterization that
she was only a minor player in the charged conduct. (ECF No.
167 at 4-6.) This is generally consistent with the
Court's own review of the pretrial record and the
anticipated trial evidence, as reflected in other recent
Court Orders. (See, e.g., ECF No. 174 at 1-6; ECF
No. 195 at 4-10.) Indeed, by Defendant's own count, she
is alleged to have participated in 15 of the 29 enumerated
alleged affirmative acts of tax evasion, as set out in
paragraph 16 of the Indictment, either alone or acting
together with her husband and co-defendant. (ECF No. 1 at
5-11; ECF No. 163 at 2.) The Court is thus not persuaded that
any undue “spillover” risked by a single trial
calls for severance. Under the “well settled”
principle that “defendants are not entitled to
severance merely because they may have a better chance of
acquittal in separate trials, ” Defendant has not
raised a sufficient argument for severance based on
“spillover.” Zafiro, 506 U.S. at 540.
also argues that a joint trial will be particularly
prejudicial because she and Daryl Yurek are spouses and that
“human nature is to regard a married couple as a
unit.” (See ECF No. 163 at 3.) On this point,
the Court observes that whatever “human nature”
may or may not be, she and her husband and co-defendant were,
acting “as a unit” as a legal matter during the
central acts and proceedings underlying the allegations in
this case, namely, filing joint tax returns, thereafter not
satisfying their joint tax liability, and jointly filing a
bankruptcy petition. In any event, Plaintiff cites no
authority supporting her request for severance on this basis.
Nor does she establish why any alleged
“spillover” will not be adequately cured by
proper jury instructions directing the jury that to weigh the
evidence against each Defendant independently. Absent such
authority, Defendant's argument on this point is not
sufficient to overcome the “nearly insuperable rule in
[the Tenth C]ircuit that a defendant cannot obtain severance
simply by showing that the evidence against a co-defendant is
more damaging than the evidence against herself.”
United States v. Wardell, 591 F.3d 1279, 1300 (10th
Cir. 2009) (internal quotation marks omitted).
also argues that statute of limitations concerns magnify the
potential for prejudice in a joint trial, since to convict on
Count One, the Government will need to prove beyond a
reasonable doubt that she committed at least one affirmative
act of tax evasion after July 29, 2009, but many of the
affirmative acts charged against herself or her husband
occurred before that date. (ECF No. 163 ¶ 10.) The Court
has already acknowledged that “the jury will need to be
instructed that to convict either defendant it must find that
the individual defendant committed at least one affirmative
act of tax evasion within the limitations ...