Order Denying Motion to Sever Count 10 — United States v. Allison Marie Baver, No. 2:21-cr-00520-JNP (D. Utah)

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A Memorandum Decision and Order Denying Defendant's Motion to Sever Count 10, Document 124 in United States v. Allison Marie Baver, Case No. 2:21-cr-00520-JNP, filed 06/06/23, in the U.S. District Court for the District of Utah, running 7 pages, by District Judge Jill N. Parrish. The December 15, 2021 indictment charged Baver with eight counts of False Statement to a Bank under 18 U.S.C. § 1014 and one count of money laundering under 18 U.S.C. § 1957, arising from Paycheck Protection Program (PPP) loan applications for her company, Allison Baver Entertainment, LLC. Count 10 of the Second Superseding Indictment charges contempt under 18 U.S.C. § 401(3) for refusing to comply with a subpoena for bank records. The court finds the counts properly joined, because the records bear on tracing the proceeds of a $10 million PPP loan, and denies severance.

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“Order Denying Motion to Sever Count 10 — United States v. Allison Marie Baver, No. 2:21-cr-00520-JNP (D. Utah).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/124-1a493e6e8a/, SHA-256 fc81023768a1ceb267559bd581221e8ed3f3f1754515278933c8d6576c290e49.

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Case 2:21-cr-00520-JNP Document 124 Filed 06/06/23 PageID.1778 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

UNITED STATES OF AMERICA,
MEMORANDUM DECISION AND
Plaintiff, ORDER DENYING DEFENDANT’S
MOTION TO SEVER COUNT 10
v.
Case No. 2:21-cr-00520-JNP
ALLISON MARIE BAVER,
District Judge Jill N. Parrish
Defendant.

Before the court is a motion filed by Defendant Allison Marie Baver (“Ms. Baver”) to sever

count 10 of the Second Superseding Indictment. ECF No. 99. The court DENIES the motion.

FACTUAL BACKGROUND

On December 15, 2021, the United States filed an indictment against Ms. Baver for eight

counts of violating 18 U.S.C. § 1014 (False Statement to a Bank) and one count of violating 18

U.S.C. § 1957 (Money Laundering). Indictment, ECF No. 1. The charges arose from several

Paycheck Protection Program (“PPP”) loan applications that Ms. Baver had submitted on behalf

of her company, Allison Baver Entertainment, LLC (“ABE”). Id. at 3–7.

Prior to indicting ABE as a codefendant, on May 6, 2022, the United States served ABE

with a subpoena duces tecum requesting the production of “[d]ocuments reflecting any bank

account (other than bank accounts held at Meridian Bank) in the name of Allison Baver

Entertainment, or controlled by Allison Baver Entertainment, or used by Allison Baver

Entertainment, during the time period from October 2019 through December 2020” by June 15,

2022. Second Superseding Indictment, ECF No. 47 at 9. On June 10, 2022, ABE’s former counsel
Case 2:21-cr-00520-JNP Document 124 Filed 06/06/23 PageID.1779 Page 2 of 7

filed a motion to quash the subpoena, which Judge Stewart denied. 1 Id. On June 22, 2022, former

counsel for Ms. Baver filed a motion to intervene and quash the subpoena. Id. at 10. Judge Stewart

denied Ms. Baver’s motion to intervene and quash and ordered Ms. Baver and ABE (collectively,

“Defendants”) to comply by June 30, 2022. Id.

On July 8, 2022, ABE appealed Judge Stewart’s order to the Tenth Circuit, which dismissed

the appeal. Id. On September 14, 2022, Judge Stewart issued an order to show cause and ordered

Ms. Baver and ABE to comply with the subpoena by September 28, 2022 or be held in contempt

of court. Id. On October 19, 2022, the United States filed a Second Superseding Indictment against

Defendants alleging that they were in contempt of court in violation of 18 U.S.C. § 401(3) for

refusing to comply with the subpoena. ECF No. 47. Defendants still refuse to comply with the

subpoena.

On May 8, 2023, Ms. Baver filed this motion to sever count 10 of the Second Superseding

Indictment from counts 1–9. ECF No. 99. The court DENIES the motion to sever for the reasons

explained below.

LEGAL STANDARD

“[T]he propriety of joining offenses in a single instrument is typically determined by

examining the allegations in the indictment. Some courts, however, have looked beyond the face

of the indictment at other evidence to determine if joinder is proper.” 1A Charles Alan Wright &

Arthur R. Miller, Fed. Prac. & Proc. Crim. § 144 (5th ed. 2023). The Tenth Circuit has not

1
The United States requested that this Court unseal case number 2:22-sc-00091-TS, which was
sealed by Judge Ted Stewart. This Court will not unseal a case that has been sealed by another
district court judge. If the United States wants that case unsealed, the United States will have to
file a motion to unseal with Judge Stewart.
2
Case 2:21-cr-00520-JNP Document 124 Filed 06/06/23 PageID.1780 Page 3 of 7

addressed whether courts are constrained to the indictment in determining joinder under Rule 8(a).

United States v. Burgess, No. CR-20-132-RAW, 2021 WL 2414124, at *1 (E.D. Okla. June 14,

2021). Courts in this district have “review[ed] the indictment as well as representations made by

the government in briefing” in making this determination. Id. However, the scope of the documents

that the court may review is not a problem here as the court bases its analysis solely on the facts

contained in the indictment.

ANALYSIS

Ms. Baver argues that the United States improperly joined count 10 with counts 1–9 in

violation of Rule 8(a) of the Federal Rules of Criminal Procedure. Alternatively, even if count 10

is properly joined, Ms. Baver requests that the court sever count 10 pursuant to Rule 14 of the

Federal Rules of Criminal Procedure to avoid unfair prejudice. The court addresses the joinder

argument and then moves to the severance argument.

I. Joinder

The United States “may charge a defendant in separate counts with 2 or more offenses if

the offenses charged . . . 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). Courts consider statutory elements, temporal proximity, evidentiary overlap, physical

location, motive, and victims’ identities in evaluating whether offenses can be joined. See United

States v. Jawara, 474 F.3d 565, 578 (9th Cir. 2007). “Rule 8 is construed broadly to allow liberal

joinder to enhance the efficiency of the judicial system.” United States v. Morales, 108 F.3d 1213,

1219 (10th Cir. 1997).

Joinder is appropriate where “there is a general interrelationship of the offenses . . . .”

United States v. Dunne, 134 F. Supp. 2d 1231, 1235 (D. Utah 2001) (citing United States v. Jones,
3
Case 2:21-cr-00520-JNP Document 124 Filed 06/06/23 PageID.1781 Page 4 of 7

578 F.2d 1332 (10th Cir. 1978)). This does not mean that all transactions can be joined. See United

States v. Buchanan, 930 F. Supp. 657, 662 (D. Mass. 1996) (“One point seems both clear and

prudent: A vague thematic connection among offenses may not support joinder. The government

cannot link cases simply by changing the level of abstraction—namely that this case is about an

abuse of trust, rather than about two distinct allegedly illegal schemes.”). For example, counts

cannot be joined when “[t]he Defendant himself appears to be the only connection between the

two schemes . . . .” United States v. Oaks, 285 F. Supp. 3d 876, 880 (D. Md. 2018). But, so long

as “the acts or transactions are ‘connected together’” the offenses may be joined. Gornick v. United

States, 320 F.2d 325, 326 (10th Cir. 1963) (internal citation omitted).

The United States argues that the contempt charge is connected with counts 1–9. The

United States subpoenaed the bank records of ABE in order to trace the proceeds of the $10 million

PPP loan. Defendants’ refusal to comply with the subpoena prevented the United States from

accounting for $158,000 in proceeds. ECF No. 106 at 13. How the loan proceeds were spent may

be evidence of Defendants’ motive in applying for the loan. Moreover, the status of the bank

accounts held by ABE “go[es] directly to BAVER’s claim about the operational status of ABE at

the time the applications were submitted to the bank.” Id. at 11.

However, Ms. Baver asserts that joinder is inappropriate because the other factors the court

may consider weigh against joinder. Specifically, the attempted applications that resulted in counts

1– 9 did not occur contemporaneously with the refusal to comply that resulted in count 10; a

contempt violation does not share the same elements as false statements to a bank or money

laundering; there is no “overarching plot” behind the offenses; and the contempt violation occurred

in a court related context while counts 1–9 occurred in a banking context. ECF No. 99 at 10. As a

4
Case 2:21-cr-00520-JNP Document 124 Filed 06/06/23 PageID.1782 Page 5 of 7

preliminary matter, the United States does not need to satisfy all of the factors in order to join

offenses.

Rule 8 contemplates joinder in a range of circumstances, from those
situations in which the relationship between and among offenses
charged is clear—and the events pertaining to each inextricably tied
to the others—to those circumstances in which the offenses are
fairly discrete but sufficiently linked in fact and in character to
permit a single trial.

Buchanan, 930 F. Supp. at 662. So long as there is a “logical relationship” between the charged

offenses, joinder is appropriate. United States v. Anderson, 642 F.2d 281, 284 (9th Cir. 1981).

The court finds the contrast between United States v. Halper, 590 F.2d 422, 429–430 (2d

Cir. 1978) and Anderson, 642 F.2d 281 (9th Cir. 1981) informative in clarifying the degree of

connection necessary to join offenses. In Halper, the United States tried Halper simultaneously on

Medicare fraud and income tax evasion charges despite the fact that “the sums charged in the

income tax evasion indictment were not the same funds embraced in the Medicaid fraud

indictment” and the evidence admissible on one charge would not be admissible in the other. 590

F.2d at 429. The Second Circuit concluded that “[w]hatever connection exists here, it is entirely

too speculative to justify joinder of indictments.” Id.

In contrast, in Anderson, the Ninth Circuit concluded that a narcotics conspiracy charge

was properly joined with an income tax evasion charge. 642 F.2d 281. “The financial evidence on

the conspiracy counts was relevant to the tax counts, because it showed the source of Anderson’s

unexplained wealth.” Id. at 284.

The court is persuaded that the relationship between the contempt charge and counts 1–9

is more similar to the joinder in Anderson than in Halper. Defendants were charged with contempt

because they refused to provide the United States with the financial records needed to investigate

5
Case 2:21-cr-00520-JNP Document 124 Filed 06/06/23 PageID.1783 Page 6 of 7

counts 1– 9. This may serve as evidence of Defendants’ motives in both of the alleged offenses. In

short, the court concludes that joinder is appropriate pursuant to Rule 8.

II. Severance

Having determined that joinder is proper, the court moves to Ms. Baver’s argument that

count 10 should be severed to avoid unfair prejudice. “If the joinder of offenses or defendants in

an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the

government, the court may order separate trials of counts, sever the defendants’ trials, or provide

any other relief that justice requires.” Fed. R. Crim. P. 14(a).

Ms. Baver asserts that she will be prejudiced because a jury that convicts her on contempt

will also convict her on counts 1– 9. ECF No. 99 at 14. “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.” Id. But juries are presumed to be capable of distinguishing between these charges. See

United States v. Cardall, 885 F.2d 656, 668 (10th Cir. 1989) (“The assumption that juries can and

will follow the instructions they are given is fundamental to our system of justice.”). The court is

not persuaded that speculation about potential juror confusion warrants severing a properly joined

offense.

Alternatively, Ms. Baver argues that she will be prejudiced because she intends to exercise

her right to testify regarding counts 1–9 and may wish to exercise her right to remain silent

regarding count 10.

When a defendant moves for severance because he seeks to testify
about some counts but not others, “no need for severance exists until
the defendant makes a convincing showing that [ ]he has both
important testimony to give concerning one count and a strong need
to refrain from testifying on the other.”
6
Case 2:21-cr-00520-JNP Document 124 Filed 06/06/23 PageID.1784 Page 7 of 7

United States v. Thomas, 752 F. App’x 606, 610 (10th Cir. 2018) (quoting United States v. Jones,

530 F.3d, 1292, 1300 (10th Cir. 2008)). Ms. Baver has not made such a showing. Thus, the court

concludes that severance is unnecessary.

CONCLUSION AND ORDER

For the aforementioned reasons, the court DENIES Ms. Baver’s motion to sever count 10.

ECF No. 99.

DATED June 6, 2023

BY THE COURT

______________________________
Jill N. Parrish
United States District Court Judge

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