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United States v. Yurek

United States District Court, D. Colorado

June 30, 2017



          William J. Martínez United States District Judge.

         This 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.

         I. BACKGROUND

         Defendant 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.


         Defendant argues for severance and joint trials pursuant to Federal Rule of Criminal Procedure 14. (See ECF No. 163 ¶ 3.)[1] 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).

         To 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.

         III. ANALYSIS

         Defendant argues for severance on two distinct grounds, and the Court addresses each in turn.

         A Prejudice and “Spillover Effect”

         Defendant 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).

         Initially, 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.

         Defendant 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).

         Defendant 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 ...

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