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United States v. Wisher

United States District Court, D. Delaware

December 3, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
THOMAS WISHER TRACEY DANIELS, Defendants.

          MEMORANDUM ORDER

          HONORABLE LEONARD P. STARK UNITED STATES DISTRICT JUDGE.

         Pending before the Court are Defendants' Motions for Severance of Misjoined Defendants pursuant to Federal Rule of Criminal Procedure 8(b) or for Relief from Prejudicial Joinder pursuant to Federal Rule of Criminal Procedure 14. (D.I. 64, 68) Having reviewed Defendants' motions, IT IS HEREBY ORDERED that the motions (D.I. 64, 68) are DENIED for the following reasons:

         1. Defendants Thomas Wisher and Tracy Daniels were indicted on May 23, 2017; the operative superseding indictment was returned on February 5, 2018. It contains the following charges as to Defendant Wisher:

Count I: possession with intent to distribute a controlled substance, the substance being heroin, a Schedule I narcotic, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).
Count II: possession with intent to distribute a controlled substance, the substance being phencyclidine (PCP), a Schedule III narcotic, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).
Count IV: possession of a firearm by a one who has been convicted of a felony, the firearm being a Kel-Tec P32 semiautomatic handgun bearing serial number C5K70, which affects interstate commerce and had previously been shipped and transported in interstate and foreign commerce, in violation of 18 U.S.C. § 992(g)(1) and 924(a)(2).
Count V: possession of a firearm, the firearm being a Kel-Tec P32 semiautomatic handgun bearing serial number C5K70, in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i).

         The superseding indictment also contains the following charge as to Defendant Daniels:

Count III: knowingly and intentionally rented, leased, profited from and made available for use, with and without compensation, a dwelling under her management and control, for the purpose of unlawfully storing, distributing and using a controlled substance, in violation of 21 U.S.C. § 856(a)(2) and (b).

         2. An indictment "may charge two or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses." Fed. R. Crim. P. 8(b). In multi-defendant cases, the Third Circuit has held that "the tests for joinder of counts and defendants is merged in Rule 8(b)." United States v. Irizarry, 341 F.3d 273, 287 (3d Cir. 2003). To satisfy Rule 8(b), "[i]t is not enough that defendants are involved in offenses of the same or similar character; there must exist a transactional nexus in that the defendants must have participated in 'the same act or transaction, or in the same series of acts or transactions.'" United States v. Jimenez, 513 F.3d 62, 82-83 (3d Cir. 2008) (quoting Fed. R. Crim. P. 8(b)).

         3. In determining whether multiple defendants may be joined under Rule 8(b), the Court must focus on the indictment to determine whether a connection exists between each defendant's charges. Irizarry, 341 F.3d at 287; United States v. Eufrasio, 935 F.2d 553, 567 (3d Cir. 1991). However, the Court "may look beyond the face of the indictment to determine proper joinder in limited circumstances. Where representations made in pretrial documents other than the indictment clarify factual connections between the counts, reference to those documents is permitted." United States v. McGill, 964 F.2d 222, 242 (3d Cir. 1992) (affirming district court's denial of motion to sever claims under Rule 8(b) after government proffered evidence that would be introduced at trial to show relationship between charges).

         4. In McGill, it was not apparent on the face of the indictment how a tax evasion and a bribery charge were so related as to constitute the "same act or transaction." 964 F.2d at 242. The charges, on their face, were related only insofar as both crimes tend to involve money or things of monetary value. Yet the district court permitted the government to proffer evidence that the defendant used cash payments from clients, arising out of an alleged bribery, to further an alleged tax evasion scheme. See Id. at 241-42. The Court of Appeals affirmed. See Id. at 222.

         5. Here, Counts I and II ("the possession charges") of the Superseding Indictment (D.I. 41) allege that Defendant Wisher knowingly possessed with intent to distribute a controlled substance. Count III ("the dwelling charge") alleges that Defendant Daniels knowingly and intentionally rented, leased, profited from, and made available for use, with and without compensation, her property ("the Dwelling"), for the unlawful storing and distribution of a controlled substance. As in McGill, the counts, on their face, appear to relate only insofar as they involve a controlled substance intended for distribution.[1]

         6. However, also like in McGill, the government has proffered substantial evidence to show how the counts relate, in that: (i) both Defendants and the controlled substances central to the possession charges were located at or near the Dwelling at the time of arrest; (ii) a sworn affidavit by a Wilmington Police Detective detailed four different controlled buys of a controlled substance over a six-month period, all involving the Dwelling and each of the Defendants; (iii) the Defendants sent cellular communications and a letter indicating that they were in a longstanding romantic relationship at least at the time of arrest; (iv) the Dwelling contained men's and women's clothing, had paperwork and bills naming both Defendants, and Daniels' children and Wisher's nephew were located in the Dwelling at the time of the search, all suggesting Defendants resided together in the Dwelling; and (v) the Defendants each had phones in the Dwelling - phones containing numerous cellular communications referencing each other, ...


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