United States District Court, D. Arizona
Honorable David C. Bury United Slates District Judge
Defendant seeks to sever Counts One and Two as being
improperly joined under Rule 8 or, alternatively, seeks
severance under Rule 14 because Defendant is prejudiced by
joinder of Count One with Count Two. The Count One sexual
allegations are “likely to produce emotionally charged
feelings of disgust towards the Defendant which will invite
the jury to find Huntoon guilty of Count Two without
providing him a fair trial.” (Motion (Doc. 60) at 4.)
true that the child-pornography videos found by law
enforcement's investigation using sharing software, which
make up the Count One charges, are more disgusting than the
videos found on the flash drive (thumb drive) which make up
Count Two. But this fact alone is not enough to warrant
severance. United States v.
Vasquez-Velasco, 15 F.3d 833, 846 (9th
Cir. 1994) (denying severance based on argument that
testimony on one count will be gruesome and emotionally
allows for joinder “if the offenses charged . . . are
the same or similar character or are based on the same act or
transaction or on two or more acts or transactions connected
together or constituting parts of a common scheme or
plan.” Joinder is determined on the face of the
indictment by looking for a nexus between the counts.
Jawara, 474 F.3d 565, 573 (9th Cir.
argues that the pornography in the two counts is not similar
and did not arise at the same time. The Count One files were
discovered being shared on the internet on December 15, 2014,
by a law-enforcement investigation using sharing software.
The Count Two videos are deleted files found on a thumb drive
on November 16, 2015, by law enforcement officers when they
searched Defendant's father's house, where the
Defendant had been living. Defendant asserts the two counts
did not arise at the same time, but both the sharing (Count
One) and possession (Count Two) occurred during the few
months that the Defendant was at his father's residence.
The Count One offenses involve adults sexually abusing very
young children as compared to the deleted videos found on the
thumb drive which show two young girls play-acting in the
nude and partially clothed with the camera focusing on their
pubic and vaginal areas. There is a nexus between the two
counts because both offenses occurred during the same period
of time and all the videos involve sexual abuse of young
children, mainly little girls.
Government intends to introduce evidence that after the
Defendant moved from his motor-home from his father's
Hereford property to his mother-in-law's property in
Apache Junction, the Defendant continued to share
child-sexual abuse videos on line. There was a common scheme
or plan by which the Defendant searched for and received
child pornography on line, transferred it to the thumb drive
and/or stored it on his laptop computer along with hundreds
of other images and videos of child pornography, and thereby
amassed and accumulated a collection of child pornography.
The lap top evidence ties all the videos from both counts
Ninth Circuit “‘joinder is the rule rather than
the exception.'” United States v.
Whitworth, 856 F.2d 1268, 1277 (9th Cir.
1988) (quoting United States v. Armstrong, 621 F.2d
951, 954 (9th Cir. 1980)). This Court's
dominate concern in deciding the question of severance is
judicial economy. Id.
14 sets a high standard for showing prejudice from
joinder.” Vasquez-Velasco, 15 F.3d at 845.
Joinder must be so manifestly prejudicial that it outweighs
the dominate concern for judicial economy,
Whitworth, 856 F.2d at 1277. Defendant must prove
clear, manifest or undue prejudice from a joint trial such as
to deny him a fair trial. Vasquez-Velasco, 15 F.3d
Court finds there is a clear nexus between Count One and
Count Two, which is evident when you consider that the video
files charged under both counts are on Defendant's
laptop, along with hundreds of other incriminating pictures.
The laptop links the Defendant to both counts. Meaning that
at trial there will be no meaningful qualitative difference
between the evidence underlying Count One or Two. The
Government submits that the Defendant resided at the Hereford
residence, where he had access to his father's Wi-Fi for
sharing purposes and access to the garage where the thumb
drive was found, he moved to Apache Junction and was arrested
there and charged by Pinal County with distribution of child
pornography by using sharing software on his laptop computer,
and the child pornography found in the Pinal County case on
his laptop computer was the same type found on the thumb
drive and shared in this case.
not a case where inflammatory evidence to prove Count One is
not admissible to prove Count Two; arguably, if the counts
were not joined evidence of one would be admissible as to the
other under Rule 414 or 404(b). Repulsive evidence, alone,
does not establish unfair prejudice if prejudice is
outweighed by the probative value of the evidence. Cf.,
United States v. LeMay, 260 F.3d 1018, 1030 (9th
Cir.2001); United States v. Spillone, 879 F.2d 514,
520 (9th Cir.1989) (under Rule 404(b) and 403 balancing, the
probative value of evidence is not outweighed by unfair
prejudice where prior conviction has a “clear logical
connection” to the issue of knowledge and intent in the
present case). Here, there is a clear logical connection
between the two counts, and each count is probative of the
other. Joinder of the two counts in this case will not
prelude the Defendant from getting a fair trial.
Court finds that the counts are properly joined under Rule 8,
and there is no basis to sever the counts for trial because
any prejudice is outweighed by the interests of judicial
IS ORDERED that the Motion to Sever ...