Motion to Sever — United States v. Ryan Dales (Dkt. 50)

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A Motion to Sever filed October 10, 2023, as Document 50 in United States v. Ryan Dales, Cr. No. GLR-23-026, Case 1:23-cr-00026-GLR, in the U.S. District Court for the District of Maryland. The defendant, by undersigned counsel, moves to sever count 1 from counts 2 through 4 and from counts 5 through 7, each group to be tried separately. The motion argues that the unemployment insurance fraud count, the guns and drugs counts, and the identity theft counts are unrelated and improperly joined. It cites United States v. Hawkins and United States v. Caldwell, both Fourth Circuit decisions, and refers to two search warrant exhibits, Exhibit A and Exhibit B. The signature block names Richard Bardos.

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“Motion to Sever — United States v. Ryan Dales (Dkt. 50).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/gov-uscourts-mdd-529188-50-0-660cab7ebd/, SHA-256 09aecdafb103ef934faa6498184cd049ffcfc241be3675e5f1bfbf27d290fbae.

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Case 1:23-cr-00026-GLR Document 50 Filed 10/10/23 Page 1 of 9

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

UNITED STATES OF AMERICA *

V. * Cr. No. GLR-23-026

RYAN DALES *

Defendant *

For: RYAN DALES *

MOTION TO SEVER

RYAN DALES, by his undersigned counsel, hereby moves this Honorable Court to

sever count 1 from counts 2 through 4 and from counts 5 through 7, each group needing

to be tried separately, and as grounds states:

FACTS

Defendant Ryan Dales is charged in a seven count superseding indictment with three

entirely separate offenses - different in kind, distant in time and unrelated to each other,

but for Dales being the defendant in each.

Specifically, count 1 charges a wire fraud scheme beginning in December, 2020, and

ending in September 2021, involving alleged fraudulent obtaining of COVID-19

unemployment insurance benefits (“UI fraud”) ECF 35. Counts 2 through 4 concern a

search of the defendant’s residence on January 20, 2023, nearly one and one-half years

later in which drugs and guns were claimed to be found; these guns and drugs are

unrelated to the wire fraud allegation. Finally, counts 5 through 7 alleged an entirely

different fraud scheme involving identity theft that occurred from August, 2022, and
Case 1:23-cr-00026-GLR Document 50 Filed 10/10/23 Page 2 of 9

concluded in September, 2022 (“ID fraud”). No factual connection exists between the

September, 2022, ID fraud that began over a year after the insurance fraud ended and the

UI fraud alleged in count 1; they involved different methods, different goals and different

evidence. Each of these groups must be tried separately.

ARGUMENT

Under Fed. R. Crim. Proc. 8(a), joinder of offenses in a single indictment is

permitted in three circumstances:

(a) JOINDER OF OFFENSES. The indictment or information may charge a defendant
in separate counts with 2 or more offenses if the offenses charged—whether
felonies or misdemeanors or both—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.

Application of this Rule establishes that the current indictment charges three unrelated

offenses and, therefore, must be tried in three separate trials.

I. Guns and Drugs Unrelated in Any Way to Fraud Counts

Counts 1 and 5 to 7 alleged two fraud schemes, one occurring from December, 2020

to September, 2021 (“the unemployment fraud”), and the latter occurring a year later

from August to September, 2022 (“the ID theft fraud”). Counts 3 and 4 allege possession

of guns and drugs. The offense in counts 3 and 4 is alleged to have occurred on a single

date - January 20, 2023. There is no allegation in the indictment, or any of the discovery,

that the guns and drugs are related in any way to the fraud allegations. The gun/drug

counts and the fraud counts and obviously not of a similar character, not part of the same

transaction or parts of a common scheme or plan. They are improperly joined in this

indictment.
Case 1:23-cr-00026-GLR Document 50 Filed 10/10/23 Page 3 of 9

Law enforcement filed two search warrant applications for 900 East Fort Avenue -

the first on January 18, 2023, that sought “evidence, fruits, contraband and

instrumentalities of wire fraud in violation of 18 U.S.C. sec 1343…” It was only during

that search that law enforcement found weapons and substances it believed to be

controlled dangerous substances and packing materials for same. By the Government’s

own filings, the wire fraud and gun/drug charges are unrelated.

The search warrant applications establish that law enforcement did not allege

anything related to guns or drugs when they sought a search warrant for Mr. Dales’

residence on January 18, 2023. In this first application, the “Items to be Seized”

attachment to the application describes in detail that types of documents the affiant

expected to find. That attachment is attached hereto as Exhibit A.1 No guns or drugs

are mentioned or expected to be found. Dales was not being investigated for these crimes

prior to the execution of the search warrant on January 20.

During the search that started in the early morning hours of January 20, however, law

enforcement found suspected guns and drugs.2 Because such items were not included in

the permission of the first warrant, a second warrant was obtained. In this latter warrant

the “Items to be Seized” is vastly different - guns, drugs and all evidence related to same

1
For Government reference, this exhibit is USA_01-117 to 121.
2
The affidavit for the second warrant states: “During the execution of the search
warrant for the TARGET RESIDENCE on the morning of January 20, 2023, law
enforcement identified two firearms (handguns), ammunition, and suspected Controlled
Dangerous Substances (CDS), as well as suspected CDS packaging materials.”
(emphasis in original). Warrant appliction at p.3. For Government reference, this
quote is from USA_01-127.
Case 1:23-cr-00026-GLR Document 50 Filed 10/10/23 Page 4 of 9

were requested to be seized. See attached Exhibit B.3 Thus, the only time Mr. Dales

was connected in any way to the crimes in counts 3 and 4 was the unexpected alleged

finding of both in his apartment on January 20, 2023, while agents searched for evidence

of the UI fraud.

Therefore, the UI fraud and the guns/drugs charges are not “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.” They are not related in type of offense and are

alleged to occur 16 months apart. And, nothing in the UI fraud count suggests that the

drug/gun counts were part of a common scheme or plan. These counts are improperly

joined and must be severed from the UI fraud counts.

For the same reasons, the guns and drugs counts cannot be tried with the later

charged ID theft counts. The guns and drugs were located in January, 2023; the ID theft

fraud began in August, 2022 and was completed by September, 2022. Other than the

name of the defendant, no overlap exists between the guns/drugs charges and the ID theft

charges and no such connection is alleged in the indictment or found in the discovery.

The only similarity between the guns/drug counts and the ID theft is that both were

unanticipated in the first search warrant. Indeed, the affidavit for the first search warrant

has no mention of the ID theft fraud; evidence related to that crime was located for the

first time during the January 20, 2023, search.4 Thus, again, the ID theft and the

3
For Government reference, this exhibit is USA_01-131.
4
Presumably, because the first warrant authorized seizure of records and documents
related to fraud, the seizure of such items related to an unexpected crime appeared to fall
within the permissive range of the warrant and, therefore, a second warrant to seize these
other fraud records was not sought.
Case 1:23-cr-00026-GLR Document 50 Filed 10/10/23 Page 5 of 9

guns/drugs charges are not “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.”

They are not related in type of offense and are alleged to occur 4 months apart. And,

nothing in the ID theft count suggests that the drug/gun counts were part of a common

scheme or plan. These counts are improperly joined and must be severed from the ID

theft counts.

II. The Fraud Counts, Although Similar in Title, Are Unrelated in Kind, Evidence
and Time and Should be Severed From Each Other

Assuming, arguendo, that the guns/drugs charges are severed from the fraud counts,

the Court must then consider whether the UI fraud and ID theft charges are properly

joined. Because these latter counts and count one are so different in kind, evidence and

timing, they are improperly joined and should be severed.

Count one of the indictment alleges that while Mr. Dales was living at a halfway

house in East Baltimore, he submitted false document to obtain unemployment insurance.

The application was in his own name; no other names or identity theft is alleged as part of

the scheme. And the UI fraud, per the indictment, was completed by September, 2021;

actually, all actions involved in applying for the money was completed by the end of

2020 - the remaining time was when the benefits were paid out.

The ID theft fraud, by contrast, did not even start until almost a year later. The UI

fraud alleges that Dales submitted, in his own name, an application for unemployment

benefits when, in fact, he had not been previously employed and entitled to such benefits.

The ID theft counts allege that Dales used the names of others to steal not from the

Government, but from retail stores by obtaining retail items using the fraudulent accounts.
Case 1:23-cr-00026-GLR Document 50 Filed 10/10/23 Page 6 of 9

The ID theft counts alleged that Dales used drivers licenses in others’ names that

contained his picture to buy these items. Nothing similar is alleged for the UI fraud -

there the allegation is that Dales claimed to have been employed and provided documents

the Government believes are false.

As charged, the two alleged schemes thus completely different not only in the time

they were committed, but, more importantly, in the manner they were committed and the

victims of the offenses and the evidence the Government would introduce for each crime

are entirely distinct from one another. There is no overlapping evidence: other than the

name of the defendant, nothing in a trial of the UI fraud would be evidence of the ID theft

a year later and nothing in the trial of the ID theft would come into a trial to prove the

prior unemployment fraud.

III. Under Fourth Circuit Law, These Counts are Improperly Joined

While Rule 8(a) "permit[s] very broad joinder because of the efficiency in trying the

defendant on related counts in the same trial”, United States v. Mackins, 315 F.3d 399 (4th

Cir. 2003), when the only connection between the counts is the defendant’s name, joinder

is not permitted.5 United States v. Hawkins, 776 F.3d 200, 209 (4th Cir. 2009) and

Mackins, at 412-413. Rather, “ joinder is permitted where the events pertaining to each

[crime are] inextricably tied to the others.” United States v. Caldwell, 433 F.3d 378, 385

(4th Cir. 2005) (internal quotation marks omitted). Other than charging the defendant in

5
But “the less rigorous requirements of Rule 8(a) are not infinitely elastic, and so
cannot be stretched to cover offenses ... which are discrete and dissimilar and which do
not constitute parts of a common scheme or plan” Mackins, at 412-413. (internal
quotations omitted).
Case 1:23-cr-00026-GLR Document 50 Filed 10/10/23 Page 7 of 9

both frauds, the UI fraud and ID theft charges are not only not “inextricably tied”, they

are not tied to each other at all.

The distance in time between the offenses also precludes joinder here. In United

States v. Foutz, 540 F.2d 733 (4th Cir. 1976), the Court found joinder improper where the

defendant was charged in two bank robberies that were perpetrated fewer than four

months apart. Exactly the same crime, four months apart but not properly joined. In

the instant case, the two fraud crimes are entirely dissimilar and nearly 12 months apart.

Similarly, Hawkins held joinder improper where the defendant was charged with

carjacking and possession of a weapon and, “about three weeks later, being felon in

possession of a different weapon.” Id., at 208. Similar offenses, but three weeks was

too distant in time for the charges to be brought in one trial.6

Even without a temporal connection, joinder may be allowed where one “crime was

committed in a manner so similar to that of the offense for which the defendant is being

tried that it is highly probable that the same person committed both crimes…” United

States v. Foutz, 540 F.2d 733, 737 (4th Cir. 1976). This permission also fails here - the

UI fraud involved only the defendant’s name and company, did not use anyone else’s

identification and was submitted online. The ID theft charge concerns stealing multiple

6
Hawkins cited United States v. Holloway, 1 F.3d 307 (5th Cir. 1993) with approval.
In Holloway, the Court found joinder improper where the defendant was charged with
robbery and being a felon in possession of a weapn, but the possession charge arose two
months after the robbery. The Fifth Circuit held that “on the face of the indictment there
is no indication that a connection exists between his possession of the weapon and the
alleged robbery conspiracy. Furthermore, there is no allegation that he had planned to use
the weapon in a robbery, had used the weapon in a robbery, or that the weapon was in any
way connected to the charged robberies or to any robbery.” Hawkins, at 208, quoting
Holloway, at 310.
Case 1:23-cr-00026-GLR Document 50 Filed 10/10/23 Page 8 of 9

persons’ identities, setting up credit in those names and going into stores to purchases

retail items. Nothing in these two crimes suggests that they were committed in a manner

“so similar” to conclude that the same person must have committed both crimes.

Finally the fact that evidence of the ID theft charges was found during the

investigation of the UI fraud offense does not otherwise permit joinder. In United States

v. Caldwell, 433 F.3d 378 (4th Cir. 2005), the defendant was charged with a

murder-for-hire conspiracy and a gun possession; when law enforcement arrived to arrest

the defendant and searched his house, they found a gun. The defendant argued “that his

gun possession and participation in the murder-for-hire scheme were separate and distinct

from one another and thus had no logical relationship under Rule 8(a).” Id., at 386. The

Government responded that joinder was proper because “the gun and murder-for-hire

counts were logically related because the firearm count was based on the seizure of the

[gun] during the investigation of the murder-for-hire-scheme.” Id. The Court quickly

rejected this argument: “We do not agree with the Government's argument. …. A

contrary holding would effectively read Rule 8(a) to allow limitless joinder whenever the

charge resulted from the fruits of a single investigation.” Id.

CONCLUSION

“One inevitable consequence of a joint trial is that the jury will be aware of evidence

of one crime while considering the defendant's guilt or innocence of another. If the

rationale of the "other crimes" rule is correct, it would seem that some degree of prejudice

is necessarily created by permitting the jury to hear evidence of both crimes.” Foutz, at

735. The Government has charged three entirely separate charges against Mr. Dales.
Case 1:23-cr-00026-GLR Document 50 Filed 10/10/23 Page 9 of 9

Rule 8(a) does not permit joinder of such unrelated offenses - an unemployment fraud in

his own name in December, 2020, identity theft charges in others’ names in August, 2022,

and then guns and drug charges from a single day in January, 2023.

WHEREFORE, defendant RYAN DALES hereby moves this Honorable Court to

sever these counts and require separate trials on each.

Respectfully submitted,
_______/s/__________________
Richard Bardos
Schulman, Hershfield & Gilden, P.A.
1 East Pratt Street, 9th Floor
Baltimore, Maryland 21202
(410) 332 0850

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 10th of October, 2023, a copy of the foregoing
motion was served electronically by ECF to: Office of the United States Attorney, 36
South Charles Street, Fourth Floor, Baltimore, Maryland 21201 and all defense counsel.

_____/s/______________________
Richard Bardos

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