Order on Motion to Sever — United States v. Nathan Reardon (D. Me., Dkt. 118)

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Order on Motion to Sever, filed June 27, 2022 as Document 118, Case 1:21-cr-00061-LEW, United States v. Nathan Reardon, District of Maine. It states that Defendant is charged with ten counts arising from allegedly fraudulent applications for Paycheck Protection Program loans and Economic Injury Disaster Loans, and one count of perjury for allegedly false statements on an application for court-appointed counsel. It states that the counts are sufficiently factually related to be joined, that trying them together poses only a minimal risk of prejudicial spillover that can be remedied by jury instructions, and that Defendant has not shown testimonial prejudice. It orders Defendant's Motion to Sever Count Eleven DENIED, signed /s/ Lance E. Walker, United States District Judge.

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Case 1:21-cr-00061-LEW Document 118 Filed 06/27/22 Page 1 of 4                  PageID #: 634




                           UNITED STATES DISTRICT COURT

                                   DISTRICT OF MAINE


UNITED STATES OF AMERICA,                   )
                                            )
       v.                                   )
                                            )
NATHAN REARDON,                             )              No. 1:21-cr-00061-LEW
                                            )
              Defendant.                    )


                           ORDER ON MOTION TO SEVER

       Defendant, Nathan Reardon, stands before the court charged with ten counts arising

from his allegedly fraudulent applications for Paycheck Protection Program loans and

Economic Injury Disaster Loans, as well as one count of perjury for allegedly false

statements that he made on his application for court-appointed counsel in this case. See

Indictment (ECF No. 20). Defendant now moves to sever the perjury count from the fraud

counts, arguing that trying all eleven counts simultaneously would prejudice him by

inviting an impermissible propensity inference that a defendant who lies in one instance is

likely also to have lied in other instances. See Def.’s Mot. (ECF No. 99).

       To start, the counts against Defendant are sufficiently factually related to be joined

in a single case. Separate counts that are “based on the same act or transaction” or

“constitute part of a common scheme or plan” may be tried simultaneously even if they

involve legally unrelated offenses. Fed. R. Crim. P. 8(a). Though Defendant’s alleged

perjury did not arise in the course of his allegedly fraudulent loan applications, the fact that

he allegedly perjured himself in the course of the government’s investigation and

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Case 1:21-cr-00061-LEW Document 118 Filed 06/27/22 Page 2 of 4                                     PageID #: 635




prosecution of those claims is a sufficient factual nexus for the cases to be joined in a single

proceeding. See United States v. Stackpole, 811 F.2d 689, 693 (1st Cir. 1987) (permitting

count for obstruction of justice with respect to investigation into arson to be joined with

underlying arson count). See also United States v. Duzac, 622 F.2d 911, 913 (5th Cir. 1980)

(permitting joinder of perjury count based on false statements made during travel of case);

United States v. Barney, 568 F.2d 134, 135–36 (9th Cir. 1978) (same).

         Severance may nonetheless be warranted if joinder of the offenses poses such a risk

of prejudice as to deprive Defendant of his right to a fair trial. See Fed. R. Crim. P. 14(a).

Though “some prejudice almost necessarily results” when “similar but unrelated offenses

are jointly charged to a single defendant,” Cupo v. United States, 359 F.2d 990, 993 (D.C.

Cir. 1966), the mere fact that a defendant has been charged with multiple offenses does not

justify severing the counts. The First Circuit has recognized three sources of prejudice

meriting severance of criminal counts, of which two are relevant here. 1 First, severance

may be warranted in cases of prejudicial spillover, where “proof that defendant is guilty of

one offense may be used to convict him of a second offense, even though such proof would

be inadmissible in a separate trial for the second offense.” United States v. Scivola, 766

F.2d 37, 41–42 (1st Cir. 1985) (cleaned up). Second, severance may be warranted in cases

of testimonial prejudice, where “a defendant may wish to testify in his own behalf on one

of the offenses but not another, forcing him to choose the unwanted alternative of testifying

as to both or testifying as to neither.” Id. at 42.



1
 Though courts in this Circuit also recognize a need to sever criminal proceedings where “the defendant may become
embarrassed or confounded in presenting separate defenses,” United States v. Scivola, 766 F.2d 37, 41 (1st Cir. 1985),
Defendant does not suggest that such a risk is present in this case.
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       Trying all of the charges against Defendant in a single proceeding poses only a

minimal risk of prejudicial spillover that does not merit severing the counts. Defendant

argues that evidence supporting the perjury charge is irrelevant to the fraud charges, while

being highly prejudicial inasmuch as it suggests a propensity to lie on official documents.

To be sure, had the government not added the perjury count to this case, evidence of

Defendant’s alleged perjury would likely be barred by the Federal Rules of Evidence. See

Fed. R. Evid. 402 (“Irrelevant evidence is not admissible.”), 403 (permitting exclusion of

evidence whose prejudicial value substantially outweighs probative value). But the

situation in this case—where evidence is relevant to one count but not others—is a routine

occurrence that can be remedied by jury instructions. Juries are “clearly capable of

discriminating among the evidence applicable to” different counts in a case, especially

when aided by “appropriate limiting instructions.” United States v. Edgar, 82 F.3d 499,

504 (1st Cir. 1996). Likewise, to the extent that a determination that Defendant is guilty of

perjury would invite the impermissible inference that he also committed fraud, it is well

within the competence of jury members and of this Court to ensure that the jury’s

deliberations remain uninfluenced by such prejudicial spillover.

       Nor has Defendant plausibly shown that he faces a risk of testimonial prejudice. To

make such a showing, Defendant bears the burden of providing “enough information” to

establish that “he has both important testimony to give concerning one count and strong

need to refrain from testifying on the other.” Scivola, 766 F.2d at 43. But Defendant has

made no such showing; indeed, he has not provided any information regarding the

importance of his testimony or his need to refrain from testifying, instead offering the

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vague suggestion that he “may wish” to testify as to one count but not the other. Def.’s

Mot. 4. This argument sounds in preference, not prejudice; and while Defendant has a right

not to testify against himself in a criminal proceeding, he does not have a judicially

enforceable right to “testify selectively.” United States v. Alosa, 14 F.3d 693, 695 (1st Cir.

1994).

         Defendant’s Motion to Sever Count Eleven is therefore DENIED.

         SO ORDERED.

         Dated this 27th day of June, 2022.

                                               /s/ Lance E. Walker
                                              UNITED STATES DISTRICT JUDGE




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