Memorandum Decision and Order Denying Defendant’s Motion to Sever Count 10 — United States v. Allison Marie Baver, Case No. 2:21-cr-00520-JNP (Dkt. 124, D. Utah)
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Judge Jill N. Parrish of the District of Utah on June 6, 2023 denied Allison Marie Baver's motion to sever count 10, a contempt charge, from counts 1–9 of the Second Superseding Indictment, which charge false statements to a bank and money laundering arising from PPP loan applications for Allison Baver Entertainment, LLC. Count 10 alleges that Baver and the company refused to comply with a subpoena for the company's bank records after Judge Ted Stewart ordered them to comply. The United States says the refusal kept it from accounting for $158,000 in proceeds of the $10 million PPP loan. The court found the counts properly joined under Rule 8, likening the case to Anderson rather than Halper, and found severance under Rule 14 unnecessary because juries are presumed able to keep the charges apart and Baver had not made the showing needed to testify on some counts only.
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Case 2:21-cr-00520-JNP Document 124 Filed 06/06/23 PageID.<pageID> 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.<pageID> 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.<pageID> 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
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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
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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
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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
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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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