DOJ-OGR-00003099.jpg

Case 1:20-cr-00330-PAE Document 204 _ Filed 04/16/21 Page 165 of 239 In sum, the defendant asks this Court to dismiss Counts Five and Six by stretching to read ambiguity into clear questions and encouraging the Court to resolve questions committed to the jury. The Court should reject those arguments and permit the jury to resolve these issues of fact. VI. Counts Five and Six Are Properly Joined and Should Not Be Severed The Indictment charges the defendant with participating in a scheme to sexually abuse minors, and with committing perjury to conceal her crimes. All six counts of the Indictment are properly joined: they are logically connected, subject to overlapping proof, and connected by a common scheme or plan. To sever the counts and justify holding a second trial at which a second jury will be convened and the same witnesses—including victims of sexual abuse—will testify a second time, the defendant must carry a heavy burden by showing substantial prejudice from the joinder. She has not done so, and the severance motion should be denied. A. Applicable Law Federal Rule of Criminal Procedure 8(a) permits the joinder of offenses that “are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.” Fed. R. Crim. P. 8(a). This rule establishes three tests for joinder, each “reflect[ing] a policy determination that gains in trial efficiency outweigh the recognized prejudice that accrues to the accused.” United States v. Turoff, 853 F.2d 1037, 1042 (2d Cir. 1988). Charges are “similar” if they are “somewhat alike” or “hav[e] a general likeness to each other.” United States v. Rivera, 546 F.3d 245, 253 (2d Cir. 2008) (quoting United States v. Werner, 620 F.2d 922, 926 (2d Cir. 1980) (internal quotation marks omitted). “Rule 8(a) does not require ‘too precise an identity between the character of the offenses.’” United States v. Pizarro, No. 17 Cr. 151, 2018 WL 1737236, at *3 (S.D.N.Y. Apr. 10, 2018) (Nathan, J.) (quoting Werner, 620 138 DOJ-OGR-00003099