United States District Court, D. Colorado
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO SEVER COUNT THREE
William J. Martínez United States District Judge.
Marvin Sakori Maleik Dudley is charged in a three-count
Indictment with the following: (1) possession of
methamphetamine with intent to distribute in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(C); (2) possession
of a firearm in furtherance of a drug trafficking offense in
violation of 18 U.S.C. § 924(c)(1)(A); and (3)
possession of a firearm by a prohibited person in violation
of 18 U.S.C. § 922(g)(1).
before the Court is Defendant's Motion to Sever Count 3
(the “Motion”). (ECF No. 39.) Specifically,
Defendant asks for the felon-in-possession charge (Count 3)
to be addressed in a separate trial or bifurcated proceeding,
or, at a minimum, for the Court to issue a limiting
instruction to the jury and limit the amount of information
the Government may present at trial on Defendant's
criminal history. (Id. at 2-3.) For the reasons
explained below, the motion is granted to the extent that the
Court will bifurcate the evidence and deliberation regarding
the felon-in-possession charge asserted against Defendant.
The motion is otherwise denied.
to Federal Rule of Criminal Procedure 14, the Court may order
separate trials of counts if it finds that the joinder of
multiple offenses in an indictment prejudices the defendant
or prosecution. United States v. Valentine, 706 F.2d
282 (10th Cir. 1983). To obtain such a severance, the moving
party must show that the joinder of offenses causes him
“actual prejudice, ” which outweighs the
inconvenience and expense of trying the counts separately.
United States v. Hutchinson, 573 F.3d 1011, 1025
(10th Cir. 2009). Severance is a matter within this
Court's discretion. Valentine, 706 F.2d at
289-90; see also Zafiro v. United States, 506 U.S.
534, 541 (1993) (“Rule 14 leaves the determination of
risk of prejudice and any remedy that may be necessary to the
sound discretion of the district courts.”).
contends that his status as a convicted felon, which must be
introduced as to Count 3, is irrelevant to Counts 1 and 2 and
unduly prejudicial. (Id. at 1-2.) The Government
opposes the Motion. (ECF No. 43.) The Government contends
that an appropriate limiting instruction would cure any risk
of prejudice. (ECF No. 43 at 6-7.) While the Government notes
that all Counts arise from the same occurrence on the same
date, it does not argue that Defendant's prior felony
conviction is relevant beyond Count 3. (Id. at 7.)
The Government states that it is willing to stipulate that
Defendant was previously convicted of a felony offense
without describing the prior conviction. (Id. at 6.)
Court is partially persuaded by Defendant's argument and
finds that bifurcation of Count 3 is warranted here. Hearing
evidence regarding the felon-in-possession charges will
necessarily inform the jury of Defendant's status as a
felon. Such information would be unduly prejudicial in the
jury's consideration of the other charges because there
is a strong likelihood that the jury would view
Defendant's prior conviction as evidence of
predisposition to commit the crimes charged in Counts 1 and
2. See, e.g., Valentine, 706 F.2d at 290
n.7. The prejudice is particularly strong here because the
prior felony convictions involve controlled substances.
the question of judicial economy, the Court finds that the
inconvenience and additional expense of bifurcating the trial
is minimal. Defendant states that proof of Count 3 is
“very simple” and “does not involve all the
proof required” on Counts 1 and 2. (ECF No. 39 at 2.)
The Government notes that, apart from the fact of the prior
conviction itself, some of the evidence relevant to Count 3
overlaps with that needed to prove Counts 1 and 2. (ECF No.
43 at 6.)
light of the foregoing, the Court will bifurcate the trial.
Counts 1 and 2 will be tried first. After the jury returns a
verdict on those offenses, the parties will immediately move
on to their evidence regarding Count 3. The same jury will
hear that evidence and deliberate on Count 3. Defendant
remains free to propose any limiting jury instructions to
ameliorate any lingering prejudice that he perceives. See
United States v. Jones, 213 F.3d 1253, 1261
(10th Cir. 2000); Valentine, 706 F.2d at 290 n.7.
reasons set forth above, the Court ORDERS that
Defendant's Motion to Sever Count 3 is GRANTED IN PART
and DENIED IN PART as set forth above.
 Defendant also filed a Motion to
Suppress Evidence (ECF No. 37) and a Motion to Suppress
Statements (ECF No. 38) (together, “Motions to
Suppress”) concurrently with the Motion. The Court
ordered the Defendant to submit further briefing on the
Motions to Suppress by January 14, 2019. The Court will rule
on those Motions to Suppress after briefing is complete and
the Court ...