Order — United States v. Jamel Newman (D.R.I., Dkt. 77, June 21, 2022)

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Order in United States v. Jamel Newman, Case 1:21-cr-00108-JJM-PAS, U.S. District Court for the District of Rhode Island, Document 77, filed June 21, 2022, signed by Chief United States District Judge John J. McConnell, Jr. The Court takes up the defendant's Motion to Sever Count Sixteen, the charge of possession of a firearm by a prohibited person under 18 U.S.C. 922(g)(9), from the other counts, which the government opposes. The order describes the alleged conduct as unemployment benefits applications and a firearm seen during a protective sweep. The Court finds that joinder was not proper and that severance would be required because of prejudice, and grants the motion.

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Case 1:21-cr-00108-JJM-PAS Document 77 Filed 06/21/22 Page 1 of 6 PagelD #: 698

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

UNITED STATES OF AMERICA,

v. CR. No. 21-cr-108-J3JM-PAS

JAMEL NEWMAN,
Defendant.

ORDER

Before the Court is Defendant Jamel Newman’s Motion to Sever Count Sixteen
from the indictment for possession of a firearm by a prohibited person. ECF No 69.
Mr. Newman moves alleging that the charge of being a prohibited person in violation
of 18 U.S.C. 922(g)(9) is not part of a common scheme or plan and is thus incongruent
with the other counts. See ECF No. 69-1 at 1. The government opposes this motion
asserting that “[a]ll offenses that Defendant has been charged with center around the
chat messages between Defendant and co-conspirator Hill.” ECF No. 73 at 7.

I, BACKGROUND!

In the midst of the COVID-19 pandemic, Mr. Newman and his two alleged co-
conspirators, Rashaad Hill and Darren Robinson, purportedly developed a plan to
submit unemployment benefits applications to the federal government. ECF No. 73
at 2. The three men allegedly “submitted ten false applications in their names to four

State Workforce Agencies (SWAs) in states that they did not reside, receiving at least

1 The facts stem from the government’s opposition, ECF No, 73.
Case 1:21-cr-00108-JJM-PAS Document 77 Filed 06/21/22 Page 2 of 6 PagelD #: 699

$70,802.” Jd. Myr. Newman allegedly submitted another false application to the
Massachusetts SWA and received payments to his bank account in someone else’s
name. Jd.

Mr. Newman was arrested, and a protective sweep was conducted of his
apartment at that time. Jd. While this sweep was conducted, “agents observed a
Glock 19 Gen 5 9x19 mm semi-automatic pistol on top of a television stand in what
was believed to be Defendant’s bedroom.” Jd. The pistol contained eight rounds of
ammunition, though no round was present in the chamber. See id. “Notably, the
serial number of this firearm indicates that it was purchased by co-conspirator Hill
several months previously.” Jd. at 3. “Defendant was prohibited from possessing
firearms or ammunition based on his two previous convictions of misdemeanor
domestic violence. Hill, however, was not.” Jd. at 3, n.1.

As a result of this alleged conduct, the government avers the following:

Defendant is charged with one count of conspiracy to commit wire fraud

in violation of 18 U.S.C. § 1349 (Count 1), three counts of wire fraud in

violation of 18 U.S.C. § 1343 (Counts 2, 4, and 8), three counts of

aggravated identity theft in violation of 18 U.S.C. § 1028A (Counts 11-

13),one count of theft of government in violation of 18 U.S.C. § 641

(Count 15), and one count of possession of a firearm by a prohibited
person in violation of 18 U.S.C. 922(g)(9) (Count 16).

ECF 78 at 1.
II. DISCUSSION

This inquiry starts and ends with the Federal Rules of Criminal Procedure.
One particularly relevant rule is 8(a), which pertains to joinder of offenses.

Two or more offenses may be charged in the same indictment or
information in a separate count for each offense if the offenses charged,
Case 1:21-cr-00108-JJM-PAS Document 77 Filed 06/21/22 Page 3 of 6 PagelD #: 700

whether felonies or misdemeanors or both, are of 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.

Fed. R. Crim. P. 8(a). On the other hand, however, “If the joinder of offenses . . . in
an indictment... appears to prejudice a defendant . . ., the court may order separate
trials of counts . . . or provide any other relief that justice requires.” Fed. R, Crim. P.
14; see United States v. Luna, 585 F.2d 1, 4 n.2 (1st Cir. 1978).

As reflected by Rule 8, “similarity of charges is not the sole criterion for
joinder.” United States v. Fenton, 367 F.3d 14, 21 (1st Cir. 2004). Indeed, Rule 8
must be counterbalanced by Rule 14, such that it may not significantly prejudice a
defendant. “Severance on the ground of undue prejudice is a judgment call and, thus,
is a matter committed to the trier's informed discretion. Jd. at 22 (citing United
States v. Alosa, 14 F.3d 693, 694-95 (1st Cir. 1994)). Practically speaking, this means
that even “[clounts that are properly joined need not always be tried together.” Jd. at
22.

Courts often break down this analysis into two parts: whether joinder was
proper and whether there would be significant prejudice. See zd. at 20-23. The Court
addresses them in turn.

A. Misjoinder.

As alluded to, the standard for whether joinder is proper turns on the nature
of the offenses, such that 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.” Fed. R. Crim. P. 8(a). “A plausible basis for the joinder of multiple
Case 1:21-cr-00108-JJM-PAS Document 77 Filed 06/21/22 Page 4 of 6 PagelD #: 701

counts ordinarily should be discernible from the face of the indictment.” Fenton, 367
F.3d at 21 (citing United States v. Natanel, 938 F.2d 302, 306 (1st Cir. 1991). As
applied, the question before the Court is whether a gun charge under 18 U.S.C. §
922(g)(9) is of the same character as the other fraud offenses or constitutes a common
scheme or plan.

Mr. Newman is being charged with defrauding the government. There is no
indication from these facts that Mr. Newman required a firearm to perpetrate these
offenses, or that carrying a firearm would have made the committing of these offenses
more “effective.” Indeed, as is often true with drug transactions, defendants carry
weapons either for safety reasons or intimidation purposes. See, e.g., United States
v, Richardson, 515 F.3d 74, 81 (1st Cir. 2008) (affirming denial of motion to sever 18
U.S.C. § 922(g) violation from a narcotics offense). That Mr. Newman had a gun bears
no influence on the underlying charges. From the facts presented by the government,
there is no support for the notion that Mr. Newman even interacted with anyone in
his submission of false documentation to receive fraudulent unemployment benefits.

The Court is aware of the First Circuit’s notion that “Rule 8(a)’s joinder
provision is generously construed in favor of joinder.” United States v. Randazzo, 80
F.3d 623, 627 (Ist Cir. 1996). However, not even the most “generous” construal can
produce a common thread between these fraud charges and the 922(g)(9) charge.
Contrary to the government’s argument, mere proximity in conversation of two
offenses does not necessarily mean they are related or indicative of a common scheme

or plan. As the government states, “forensic extraction revealed a chat thread of
Case 1:21-cr-00108-JJM-PAS Document 77 Filed 06/21/22 Page 5 of 6 PagelD #: 702

thousands of messages between Defendant and co-conspirator Hill... . ECF No. 73
at 3 (emphasis added). That there were over one thousand messages is more
indicative that Mr. Newman and Mr. Hill had a close relationship with each other.
It is likely that they talked about everyday things, along with their criminal
escapades. These daily mundanities need not, and can hardly be said to, be part ofa
common scheme or plan.

Thus, the Court finds that joinder was not proper here under the Federal Rules
of Criminal Procedure. As a result, the charge under 18 U.S.C. 922(g) should be
severed.

B. Prejudice

Even if the Court were to find that joinder was proper, severance would still
be required because of the prejudice it would have on Mr. Newman. The Court does
not reach this conclusion merely because Mr. Newman would be prejudiced. As the
government keenly notes, “[slome prejudice results in almost every trial in which the
court tries more than one offense together.” United States v. Richardson, 515 F.3d
74, 81 (1st Cir. 2008). Instead, the Court finds that justice would be inhibited without
severance.

The prejudice here is also derived from the domestic violence charge on which
Mr. Newman is prohibited person within the definition of 922(g) than the gun charge

itself2 Because the government would have to set forth its basis for charging Mr.

2 Soe ECF No. 64 (“TEXT ORDER denying without prejudice 46 Motion to
Dismiss as to Jamel Newman (1): Defendant Jamel Newman's Motion to Dismiss
Count 16 (ECF No. 46) Is DENIED without prejudice. Whether the alleged victim in
Case 1:21-cr-00108-JJM-PAS Document 77 Filed 06/21/22 Page 6 of 6 PagelD #: 703

Newman with 922(g)(9), it would bring forth evidence of domestic violence. This
information, which is unrelated to Mr. Newman’s fraud charges, would unfairly
prejudice Mr. Newman. In fact, the Court finds that Mr. Newman has met the
standard set forth by the government, that Mr. Newman has made a “strong showing
of prejudice.” See United States v. Luna, 585 F.2d 1, 4 (1st Cir. 1978) (internal
quotation marks omitted) (citing Sagansky v. United States, 358 F.2d 195, 199 (1st
Cir. 1963)).

The Court closes this opinion by noting that this severance represents the
exception to the rule, rather than the rule itself. The Court knows that granting a
motion to sever a charge from the indictment is rare. But the Court finds that
granting a motion to sever 18 U.S.C. 922(g)(9) is required by the interests of justice.
As a result, Defendant Jamel Newman’s Motion to Sever Count Sixteen of the

indictment is hereby GRANTED. ECF No. 69.

IT IS SO va / a

John J. McConnell, Jr.
Chief United States District Judge

June 21, 2022

the underlying state court charge was “person similarly situated to a spouse, parent
or guardian of the victim,” as required by 18 U.S.C. § 921(a)(38)(A)G-ii) is a
determination that is not appropriate for the Court to decide at this time based on
the sufficiency of the indictment.”).


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