Motion to Sever Count 10 and Memorandum in Support — United States v. Baver (Dkt. 99, D. Utah)

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A Motion to Sever Count 10 and Memorandum in Support in United States of America v. Allison Marie Baver, Case No. 2:21-cr-00520-1, in the U.S. District Court for the District of Utah, dated May 8, 2023. Through Assistant Federal Defenders Kristen R. Angelos and Robert K. Hunt, the defendant asks the Court to sever Count 10's contempt charge from Counts 1-9 of the Second Superseding Indictment. The motion argues that Count 10 does not meet the joinder standard of Rule 8(a) of the Federal Rules of Criminal Procedure, citing U.S. v. Bagby, 696 F.3d 1074. It argues in the alternative that Count 10 should be tried separately under Rule 14 to avoid unfair prejudice.

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Case 2:21-cr-00520-JNP Document 99 Filed 05/08/23 PageID.958 Page 1 of 16




SCOTT KEITH WILSON, Federal Public Defender (#7347)
KRISTEN R. ANGELOS, Assistant Federal Defender (#8314)
ROBERT K. HUNT, Assistant Federal Defender (#5722)
OFFICE OF THE FEDERAL PUBLIC DEFENDER
DISTRICT OF UTAH
Attorneys for Defendant
46 West Broadway, Suite 110
Salt Lake City, Utah 84101
Telephone: (801) 524-4010
Email: kris_angelos@fd.org and robert_hunt@fd.org



                         IN THE UNITED STATES DISTRICT COURT

                                        DISTRICT OF UTAH


  UNITED STATES OF AMERICA,                         MOTION TO SEVER COUNT 10 AND
                                                      MEMORANDUM IN SUPPORT
                  Plaintiff,

  v.

  ALLISON MARIE BAVER,                                      Case No. 2:21-cr-00520-1

                  Defendant.                               Honorable Judge David Sam



       Defendant Allison Marie Baver (“Ms. Baver”), by and through counsel, Kristen R.

Angelos and Robert K. Hunt, submits this Motion to Sever Count 10’s Contempt Charge from

Counts 1-9 of the Second Superseding Indictment.    Specifically, Count 10 of the Second

Superseding indictment must be severed because it does not meet the standards for joinder set

forth in Rule 8(a). Even if Count 10 met the standard under Rule 8(a), Count 10 should be tried

separately to avoid unfair prejudice.




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                                              ARGUMENT

   I.      JOINDER OF THE CONTEMPT COUNT WITH THE FALSE STATEMENTS
           AND MONEY LAUNDERING COUNTS VIOLATES RULE 8(a) OF THE
           FEDERAL RULES OF CRIMINAL PROCEDURE

        Rule 8(a) of the Federal Rules of Criminal Procedure permits a defendant to be charged

in a single indictment with multiple offenses when the offenses are sufficiently related. U.S. v.

Bagby, 696 F.3d 1074, 1086 (10th Cir. 2012). Offenses cannot be joined in one indictment

unless they “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.” F.R.C.P 8(a); U.S. v.

Hutchinson, 573 F.3d 1011, 1026 (10th Cir. 2009). Rule 8(a) is construed broadly to enhance

the efficiency of the judicial system. United States v. Jones, 530 F.3d 1291, 1298 (10th Cir.

2008). While the requirements of Rule 8 are generous, they “cannot be stretched to cover

offenses . . . which are discrete and dissimilar and which do not constitute parts of a common

scheme or plan.” United States v. Richardson, 161 F.3d 728, 733 (D.C. Cir. 1998). “A vague

thematic connection among offenses may not support joinder.” United States v. Buchanan, 930

F. Supp. 657, 662 (D. Mass 1996).

        Most courts only look to the face of the indictment to determine whether joinder is

proper. 1A Wright & Leipold, Federal Practice and Procedure §144 at 41-42 (2020 ed.)

(footnotes omitted); See, e.g., United States v. Howell, 17 F.4th 673, 686 (6th Cir. 2021) (the

propriety of joinder is determined from the face of the indictment); United States v. Mink, 9 F.4th

590, 603 (8th Cir. 2021) (the determination of whether joinder is proper is made from the face of

the indictment). Some courts, however, have looked beyond the face of the indictment at other

evidence to determine if joinder is proper. See, e.g., U.S. v. Carson, 455 F.3d 336, 372 (D.C.


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Cir. 2006) (“the propriety of joinder is determined as a legal matter by evaluating only the

indictment [and] any other pretrial evidence offered by the government.”) The Tenth Circuit

has not specifically addressed this issue, although a leading case in the circuit about joinder,

United States v. Hill, found joinder was proper, but only examined the indictment itself in

coming to that conclusion. 786 F.3d 1254, 1272 (10th Cir. 2015). Some district courts within

the Tenth Circuit, however, have decided under their interpretation of Tenth Circuit case law that

it is appropriate to “analyze a Rule 8(a) challenge by reviewing the indictment as well as

representations made by the government in briefing.” See, e.g., United States v. Burgess, 2021

WL 2414124, at *1 (E.D. Okla. June 14, 2021).

       In the present instance, the current Second Superseding Indictment fails the test of Rule

8(a), even broadly construed. Contempt is unrelated to false statements and money laundering

in all of the ways that matter under Rule 8(a). Count 1-9 (false statements and money

laundering) and Count 10 (contempt) do not charge 1) offenses of the same or similar character,

2) the same act or transaction, or 3) a common scheme or plan. Docket (“Dkt”) 47, Second

Superseding Indictment.

       First, contempt is not of the same or similar character to money laundering and false

statements. In determining what constitutes the “same or similar character,” courts generally

find joinder to be proper when the counts “refer to the same type of offenses occurring over a

relatively short period of time, and the evidence as to each count overlaps.” U.S. v. Garrett, 648

F.3d 618, 625 (8th Cir. 2011). “[F]actors such as the elements of the statutory offenses, the

temporal proximity of the acts, the likelihood and extent of evidentiary overlap, the physical

location of the acts, the modus operandi of the crimes, and the identity of the victims” are helpful


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in assessing whether the acts are of the “same or similar” character for purposes of Rule 8(a).

U.S. v. Jawara, 474 F.3d 565, 578 (9th Cir. 2007).

       Contempt does not have a single element in common with money laundering or false

statements. The offenses of money laundering and false statements, by contrast, are inextricably

linked. To convict a defendant of a false statement designed to influence a bank, the

government must establish that 1) the defendant made a false statement or report, and 2) that he

did so for the purpose of influencing in any way the action of a bank. See Williams v. United

States, 458 U.S. 279, 284 (1982) (quoting §1014). To convict a defendant of money laundering,

the government must prove that the defendant 1) engaged or attempted to engage, 2) in a

monetary transaction, 3) in criminally derived property, 4) knowing that the property is derived

from unlawful activity, and 5) that the property is, in fact, derived from specified unlawful

activity. United States v. Huff, 641 F.3d 1228, 1230 (10th Cir. 2011), citing United States v.

Baum, 555 F.3d 1129, 1131 (10th Cir. 2009). The false statement provided to a bank is often

what satisfies the “specified unlawful activity” element of the money laundering statute. Here,

the alleged conduct involved PPP loan applications containing false information, and a money

transfer arising out of the money derived from those applications. The Second Superseding

Indictment makes clear in Count 9 (money laundering) that “such property was derived from the

specified unlawful activity of False Statement to a Bank as alleged above.” Dkt. 47, ¶ 25. The

explicit reference of the “false statement” as part of the money laundering charge demonstrates

why these charges are properly joined in the indictment.

       By contrast, the offense of contempt bears no relation to either the false statement or

money laundering statute. The offense of contempt involves three essential elements: “1) a


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violation, 2) of a clear and reasonably specific order, and 3) the violation was willful.” The

United States Department of Justice Archives, Criminal Resource Manual 701-799, 753

“Elements of the Offense of Contempt.” January 2020. (citing United States v. Nynex Corp, 8

F.3d 52, 54 (D.C. Cir. 1993)); see also United States v. Voss, 82 F.3d 1521, 1525 (10th Cir.

1996)(citing Cooper v. Texaco, Inc., 961 F.2d 71, 72 n. 3 (5th Cir. 1992)(“There are three

elements to contempt under 189 U.S.C. §401(3);(1) a reasonably specific order, (2) violation of

the order, and (3) the willful intent to violate the order.”)). None of these elements overlaps or

relates in any way to elements of § 1014 or § 1957 – the other charges in the Second Superseding

Indictment. The Second Superseding Indictment’s linking of the contempt conduct to the

money laundering and false statement charges is an attempt to connect an offense that is

fundamentally dissimilar.

       Further support for misjoinder comes from the statutes themselves. The titles of the

crimes of money laundering, giving false statements, and contempt are also instructive in

understanding how contempt is unrelated to the other charges. The title of 18 USC §1014 (false

statements designed to influence a bank) is “[l]oan and credit applications generally,” and the

title of 18 USC §1957 (money laundering) is “[e]ngaging in monetary transactions in property

derived from specified unlawful activity.” It is quite obvious to see how these two sections are

related to one another – both involve money, banks, and financial instruments generally.

        In stark contrast to these titles, the title of 18 USC § 401 (contempt) is “power of court.”

This section is entirely about the power of the court. In general, this charge has absolutely

nothing to do with financial crimes. This section allows a court to punish “disobedience or

resistance to its lawful writ, process, order, rule, decree, or command.” 18 USC § 401(c). The


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purpose of a criminal contempt charge is to “vindicate the authority of the court.” Latrobe Steel

Co. v. United Steelworkers of America, AFL-CIO, 545 F.2d 1336, 1343 (3d Cir. 1976). “Its

proceedings are separate from the actions which spawned them.” Id. “There is no denial here

that a criminal contempt is punishable in an independent proceeding divorced from the original

cause, in the course of which it may have occurred.” Yates v. United States, 227 F.2d 848, 850

n.4 (9th Cir. 1955).

       While “criminal contempt [also] seeks to punish past acts of disobedience,” Latrobe Steel

Co. at 1336, this does not mean that all acts of criminal conduct constitute disobedience and

would thus be properly joined under Rule 8(a). Such a reading would render the Rule

superfluous. Although criminal conduct is “disobedience” generally – this sweeps too broadly

and would essentially permit joinder of any and all criminal charges. For “the same or similar

character” provision of Rule 8(a) to have meaning, it must be narrowly applied, especially in

situations like Ms. Baver’s where permitting joinder will lead to the sort of prejudice addressed

in Rule 404(b) of the Federal Rules of Evidence. Rule 404(b) prohibits the admission of other

bad acts evidence in order to show the defendant’s bad character and her propensity to act in

conformity therewith. “A broad reading of the ‘similar character’ provision of Rule 8(a) would

invite the very sort of irrelevant ‘bad character’ reasoning prohibited under Rule 404(b)”. U.S.

v. Buchanan, 930 F.Supp. 657, 665-666 (D. Mass 1996). The contempt charge here is a direct

result of Ms. Baver’s alleged failure to obey an order of the judge, over two years later, and

simply represents the court’s ability to punish for noncompliance with its orders. Thus, the

offense of contempt cannot be properly joined to the other charges because it is not of a similar

character to money laundering or false statements to a bank.


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       The evidence available to support these charges also supports their dissimilarity. The

extent of evidentiary overlap is very minimal, or perhaps even non-existent between counts 1-9

and count 10. The alleged evidence used to support the false statements and money laundering

consists of PPP loan applications, the statements on those applications, and the transfer of those

PPP funds. The alleged evidence used to support the contempt charge in this instance is a grand

jury subpoena and whether Ms. Baver failed to comply with the order by failing to produce bank

documents of Allison Baver Entertainment LLC (“ABE”). Moreover, the underlying documents

requested, which were not produced and resulted in the contempt charge, covered a broad range

of time, specifically October 2019 through December 2020. This is significant because counts

1-9 only involve the time period of April 2020, and count 10 only involved the time period of

July 2020. Indeed, it is not clear from the Second Superseding Indictment whether these

documents are related to the underlying allegations or for what purpose the government wanted

these documents. In fact, the Government seized the PPP loan money from ABE in October

2020, as such, defense counsel is unclear why the Government needed ABE’s bank records for

November and December of 2020. Moreover, since counts 1-9 all involve conduct occurring in

April of 2020, defense counsel is unsure why it was necessary for ABE to produce bank records

from October 2019-February 2020, the months prior to the loan application. Indeed, in some

ways, the Government’s request of these specific time periods seems to be based on a fishing

expedition. Moreover, the Government already had bank records from the bank accounts

surrounding the PPP loan as they cited them in the affidavit for the seizure warrant that resulted

in the seizure of around 9.5 million dollars of the PPP money. See Dkt. 82, Exhibit 1, Seizure

Warrant.


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       The evidence arising out of the contempt charge is of a distinct character and involves

only whether the Ms. Baver failed to comply with a court order. Because the contempt charge

shares neither similarity in its elements, statutory placement, or evidentiary overlap with the false

statement and money laundering charges, the contempt charge cannot be said to be of a “similar

character” to the other charges. The only similarity in these charges is the identity of the Ms.

Baver – and her alleged role in both ---- at very different and distinct times ---- and that is simply

not enough to justify joinder under Rule 8(a). See e.g., United States v. Mackins, 315 F.3d 399,

412-413 (4th Cir. 2003) (finding the district court’s joinder was error where the “only

connection” between the counts was the defendant); United States v. Hawkins, 776 F.3d 200, 209

(4th Cir. 2015) (finding joinder of offense was improper because “nothing ties [the offense]

together except the defendant.”). Two or more charges cannot be joined simply because the

defendant is the same; the offenses must be of the “same or similar character.”

       Second, the Second Superseding Indictment fails to connect the contempt offense as part

of the same “act or transaction” as the money laundering and false statement offenses. But this

makes sense, as the contempt charge involves separate and discrete conduct from that of money

laundering. “Transaction” in Rule 8(a) requires that the joined offenses have a logical

relationship with each other. See, e.g., U.S. v. Cardwell, 433 F.3d 378, 386-87 (4th Cir. 2005)

(charges must be logically related, not just temporally related). Courts have held that the term is

“flexible,” but often determine that there is a logical relationship between offenses when there

are large areas of overlapping proof, temporal relatedness, or other logical relationships between

the offenses.   See, e.g., U.S. v. Anderson, 642 F.2d 281, 284 (9th Cir. 1981) (when the joined

counts are logically related, and there is a large area of overlapping proof, joinder is appropriate).


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       The Tenth Circuit frequently relies on temporal proximity to conclude that joinder is

appropriate. See, e.g., United States v. Buckley, 216 F.3d 1088 (10th Cir. 2000) (“the temporal

proximity of only four days between the bank robbery and . . . flight from arrest” permitted

joinder); United States v. Bagby, 216 F.3d 1088 (10th Cir. 2000) (holding that a three month

difference in timing did not preclude joinder, while also acknowledging that usually cases

upholding joinder involve even closer time proximity). Similarly, in U.S. v. Olsen, the Tenth

Circuit explained that perjury statements were properly joined, but only because all fifteen

counts arose from a single transaction – the defendant’s grand jury testimony. 519 F.3d 1096,

1102. Thus, the offenses were both temporally and logically related.

       In this instance, by contrast, the offense of contempt is not temporally or logically related

to the other charges. The contempt charge involves separate and discrete conduct from that of

false statements and money laundering. The false statements and money laundering counts all

involve conduct that occurred between April 13th and July 23rd of the year 2020. The alleged

false statements all occurred during an 11- day period in April, while the alleged money

laundering occurred on one day: July 23rd of 2020. The contempt offense, by contrast, involved

an incident occurring on or about July 1 of 2022 – a full two years after the events which led to

the other charges. No temporal proximity exists between the contempt and the earlier offenses

Ms. Baver is charged with because the alleged false statements and money laundering had

concluded years before. In contrast, the money laundering and false statement charges share

extremely close temporal proximity. Accordingly, the fact that the offense alleged in Count 10

occurred two years after the other alleged offenses is further proof that Counts 1-9 are not

properly joined with Count 10 in the Second Superseding Indictment.


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       Additionally, the alleged evidence for the contempt charge is not logically related to the

alleged evidence for the other charges. In order to “determin[e] whether offenses are based on

‘acts or transactions connected together,’ the predominant consideration is whether joinder

would serve the goals of trial economy and convenience; the primary purpose of this kind of

joinder is to ensure that a given transaction need only be proved once.” Baker v. U.S., 401 U.S.,

401 F.2d 958, 971 (D.C. Cir. 1968). In Ms. Baver’s case, joinder does not serve the goals of

economy and convenience since the evidence related to the contempt charge does not relate and

overlap with the other counts. There is no repetition of evidence between the false statement,

money laundering, and contempt charges. The contempt evidence will surround an order of the

court to provide ABE bank records, and steps taken by Ms. Baver to comply or not comply after

the order was imposed. Since the alleged evidence is completely separate, resolving these

counts separately would not involve repetition of evidence. Thus, judicial economy is not

served by joinder in Ms. Baver’s case.

       Third, there is no overarching plot connecting these counts in this case. In trying to

determine whether there is a “common scheme or plan,” some courts look at “whether the

commission of one of the offenses either depended upon or necessarily led to the commission of

the other” or whether the “proof of the one act either constituted or depended upon proof of the

other.” Jawara, 474 F.3d at 574 (9th Cir. 2007 (citations omitted). Here, the evidence alleged

in the Second Superseding Indictment does not support any contention that the contempt charge

somehow facilitated the false statements or alleged money laundering. This is especially true

given that those events had occurred years before. The false statements and money laundering

are based on a common scheme or plan, arising from the PPP loan applications and money


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transfer to a specified movie, i.e., No Man of God. In contrast, the contempt charge, as

explained above, was about resisting a lawful order from a judge. The contempt conduct did not

arise as part of a fraudulent scheme – it was not part of the PPP loan application or money

transfer, nor was it related to those schemes. The Second Superseding Indictment lacks any

allegation that the contempt charge is part of a common scheme or plan, or is part of the same

transaction. Count 10 of the Second Superseding Indictment cites the date of the subpoena and

other dates leading up to the alleged refusal to turn over documents. Nothing on the face of the

Second Superseding Indictment links the contempt to the money laundering and false statement

charges. In essence, it fails to connect the dots. Because the Second Superseding Indictment

lacks this demonstration of connection, the contempt charge cannot be properly be joined under

Rule 8(a).

       Indeed, in U.S. v. Halper, the government argued that the defendant’s scheme to defraud

the Medicaid system produced the income which he then failed to report on his personal tax

returns. The court concluded that the offenses neither depended upon nor necessarily led to the

commission of the other. 590 F.2d 422, 429 (2d Cir. 1978). Thus, although there may have

been some sort of “connection,” it simply was not enough to permit joinder. Id. Similarly, in

United States v. Oaks, the court found that the Defendant’s scheme to commit bribery and his

scheme to obstruct justice were two distinct efforts, lacking a shared objective. 285 F. Supp.3d

876, 879-80 (D. Md. 2018). Just as in these cases, Ms. Baver’s alleged crimes were two distinct

efforts, and the Second Superseding Indictment has failed to allege how they shared the same

objective.




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         The criminal contempt charge should be severed because it is not of the same or similar

character, is not based on the same act or transaction, and is not part of a common scheme or

plan as the other charges in the Indictment.

   II.      EVEN IF PROPERLY JOINED, COUNT 10 SHOULD BE TRIED
            SEPARATELY FROM THE OTHER COUNTS PURSUANT TO RULE 14

         Rule 14 provides that “the court may order separate trials of counts” if joinder “appears

to prejudice a defendant.” Fed. R. Crim. P. 14. See also, United States v. Muniz, 1 F.3d 1018,

1022 (10th Cir. 1993) (“[T]he district court may sever counts which are properly joined if it

appears the defendant is prejudiced by their joinder.”). The Due Process clause of the United

States Constitution similarly protects a defendant such as Ms. Baver from undue prejudice, and

therefore requires severance when “there is a serious risk that a joint trial would compromise a

specific right of one of the defendants, or prevent the jury from making a reliable judgment about

guilt or innocence.” Zafiro v. United States, 506 U.S. 534, 539 (1993). Severance is

appropriate when an individual’s right to a fair trial is threatened or actually deprived. United

States v. Holland, 10 F.3d 696, 699 (10th Cir. 1993). The decision to grant a severance is

“within the sound discretion of the trial court and its decision will not ordinarily be reversed in

the absence of a strong showing of prejudice.” United States v. Hill, 786 F.3d 1254, 1272 (10th

Cir. 2015) (quoting United States v. Valentine, 706 F.2d 282, 289 (10th Cir. 1983).

         United States v. Foutz specifically elaborates that severance may be justified if “(1) the

jury may confuse and cumulate the evidence, and convict the defendant of one or both crimes

when it would not convict him of either if it could keep the evidence properly segregated; (2) the

defendant may be confounded in presenting defenses, as where he desires to assert his privilege

against self-incrimination with respect to one crime but not the other; or (3) the jury may

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conclude that the defendant is guilty of one crime and then find him guilty of the other because

of his criminal disposition.” 540 F.2d 733, 736 (4th Cir. 1976).

          First, severance of the contempt offense is necessary to avoid prejudice in the event that

Ms. Baver wishes to testify regarding some counts and invoke the Fifth Amendment regarding

others. See Cross v. U.S., 335 F.2d 987, 989 (D.C. Cir. 1964) (held that joinder was prejudicial

where such joinder confounded the accused in making his defense since he wished to testify on

one count and to remain silent on the other)1.

          It is anticipated that Ms. Baver will seek to exercise her right to testify with regard to

Counts 1-9. As noted in prior motions filed with the Court on this matter, Ms. Baver has

asserted that when she was applying for the PPP loan, she was forthright to banks regarding the

fact that the PPP loan was for the future hiring of employees and that at the time of the PPP loan

she had no payroll, just anticipated future payroll. However, with regard to Count 10, Ms.

Baver may wish to exercise her right to remain silent, as this count simply involves the failure to

act, specifically the failure of Ms. Baver to provide bank documents, which the Government

already had (as noted above) and which was occurring during a period when Ms. Baver’s

attorneys were filing motions on her and ABE’s behalf. Joinder of these counts puts Ms. Baver

in an untenable situation and severely inhibits her from properly making her defense in each

matter.




1 A defendant who wishes to remain silent on some counts and testify on other counts must demonstrate “a
convincing showing that he has both important testimony to give concerning one count and strong need to refrain
from testifying on the other.” U.S. v. Martin, 18 F.3d 1515, 1518-1519 (10th Cir. 1994) (quoting United States v.
Valentine, 706 F.2d 282, 291 (10th Cir. 1983)).

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         Second, severance is necessary because the jury would have difficulty

compartmentalizing the charges of money laundering and false statements from the contempt

charge, and could be swayed to convict on the false statement and money laundering charges

based on the evidence heard about the unrelated contempt charge. See, e.g., U.S. v. Jones, 16

F.3d 487, 493 (2d Cir. 1994) (joinder of felon in possession charge with armed bank robbery and

related firearms charges was abuse of discretion because of “overwhelming probability” jurors

would not adhere to court’s instructions and would be swayed by evidence of prior convictions

to convict defendant on unrelated charges); U.S. v. Holloway, 1 F.3d 307, 312 (5th Cir. 1993)

(joinder was an abuse of discretion because jury was unfairly influenced to judge defendant

based on who defendant was and not on material evidence). Prejudice and the risk of an

unreliable verdict in this case seem self-evident, if a single jury hears evidence related to false

statements and money laundering while considering a contempt allegation, and vice versa. The

elements of the money laundering and fraud counts are far more complex, and the evidence more

voluminous. Contempt, on the other hand, is quite straightforward. If the government is able

to carry its burden of proof on the simpler charge of contempt, there is a real possibility that

jurors could conclude that anyone who would disregard a court order would knowingly disregard

financial laws as well. The jury may conclude from the evidence surrounding the contempt

charge that Ms. Baver is a lawbreaker and therefore a person of poor moral character and quite

likely to break other laws as well. Such inferences are improper, yet likely to occur.2 This is a



2 It is important to note that jury instructions cannot be considered an adequate safeguard against such prejudice. As
the Supreme Court acknowledged in Bruton v. United States, 391 U.S. 123 (1968), “[t]he naïve assumption that
prejudicial effects can be overcome by instructions to the jury . . . all practicing lawyers know to be unmitigated
fiction.” See also United States v. Riggi, 541 F.3d 94, 104 (2d Cir. 2008). Even a properly instructed jury is likely
to conflate the contempt charge with the false statements/money laundering charges.

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risk that is not worth taking. Joinder is not appropriate because of the undue prejudice it would

cause Ms. Baver.

       Third, severance is necessary so that the government is required to carry its burden of

proof. There is a very real risk that including the contempt charges will lower the government’s

burden of proof on the fraud and money laundering charges. This is because the jury confusion

explained above has the collateral consequence of lowering the government’s burden of proof.

The potential spillover from the easy to understand count (contempt) to the harder to understand

counts (money laundering and false statements) effectively allows the government to satisfy a

lower burden of proof.

       While it is true that there is a liberal policy in favor of joinder among most courts, it is

important to not lose sight of the reason that joinder is favored. The liberal policy in favor of

joinder is based on the fact that “[t]he rules are designed to promote economy and efficiency and

to avoid a multiplicity of trials, where these objectives can be achieved without substantial

prejudice to the right of the defendants to a fair trial.” Bruton v. United States, 391 U.S. 123,

123 n.6 (1968). Significantly, in Ms. Baver’s case, failure to sever would result in prejudice and

an unfair trial, without furthering the main purpose behind joinder, i.e., judicial economy.

Lowering the government’s burden of proof is an unacceptable consequence of joinder in this

case. There is no judicial economy to be served by joinder because the contempt charge is

discrete – the government can prove the contempt was willful without proving a motive for it in

the underlying charges. Joinder does not serve the interest of judicial economy, but does risk a

considerable amount of prejudice toward Ms. Baver.




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       Rule 14 provides that – even if multiple counts were properly joined under Rule 8 – a

court may order separate trials if consolidation for trial would “appear to prejudice [the]

defendant.” United States v. Tarango, 396 F.3d 666, 675 (5th Cir. 2005). Whether to grant

severance under Rule 14 rests squarely within the discretion of the district court. U.S. v.

Johnson, 130 F.3d 1420, 1427 (10th Cir. 1997). A district court has “very broad” discretion to

sever in order to avoid unfair prejudice, or to deny such relief. United States v. Wiseman, 172

F.3d 1196, 1211 (10th Cir. 1999), abrogated on other grounds by Rosemond v. United States,

572 U.S. 65 (2014). “When joinder of either defendants or offenses causes the actual or

threatened deprivation of a fair trial,” however, “severance [pursuant to Rule 14] is no longer

discretionary.” United States v. Butler, 494 F.2d 1246, 1256 (10th Cir. 1974). And where, as

here, there is significant threat of such an unfair trial, severance is entirely appropriate and within

the bounds contemplated by Rule 14.

                                          CONCLUSION

       For the reasons noted above, the Court must grant Ms. Baver’s motion for a severance

and order the trial of Counts 1-9 to be separate from the trial of Count 10.    Count 10 does not

meet the standard for joinder as set forth in Rule 8(a).   Even supposing it did, Count 10 should

be tried separately to avoid unfair prejudice.

       DATED this 8th day of May, 2023.

                                                 /s/ Kristen R. Angelos
                                                 KRISTEN R. ANGELOS
                                                 Assistant Federal Defender


                                                 /s/ Robert K. Hunt
                                                 ROBERT K. HUNT
                                                 Assistant Federal Defender

                                                   16

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