United States District Court, D. Delaware
HONORABLE LEONARD P. STARK UNITED STATES DISTRICT JUDGE.
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:
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).
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).
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)).
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).
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.
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
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