United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT LEV
DERMEN'S MOTION TO SEVER TRIALS
N. PARRISH UNITED STATES DISTRICT COURT JUDGE
the court is a motion to sever trials filed by defendant Lev
Aslan Dermen on May 8, 2019. (ECF No. 289). The
government responded in opposition on May 22, 2019 (ECF No.
314), and Mr. Dermen replied on May 29, 2019 (ECF No. 321).
With leave of court, the government filed a surreply on June
4, 2019. (ECF No. 332-1). Finally, Mr. Dermen obtained leave
to supplement his motion with evidence and arguments not
available to him when he filed his motion; he filed his
supplemental brief on June 12, 2019. (ECF No. 355). On the
basis of these filings, a review of relevant law, and for the
reasons below, Mr. Dermen's motion to sever is
Dermen's motion presents three grounds for severance: (1)
that he will be prejudiced by a joint trial due to the
admission of evidence relevant to charges not asserted
against him; (2) that he will be deprived of his Sixth
Amendment Confrontation Clause rights in a joint trial
because the government is likely to admit testimonial
statements made by non-testifying codefendants; and (3) that
if his trial were severed, those same codefendants would
actually take the stand at Mr. Dermen's individual trial
and offer testimony that exculpates him. Additionally, Mr.
Dermen's supplemental brief argues that the
government's proffer in connection with a pretrial
evidentiary proceeding not concerning his severance further
supports his motion to sever.
Dermen repeatedly characterizes his motion as seeking
severance due to the prejudice he would face in a joint
trial, clearly referring to Rule 14(a), titled “Relief
from Prejudicial Joinder.” However, midway through his
motion, Mr. Dermen recites authorities that govern motions to
sever trials on the basis of misjoinder, which occurs when,
under Rule 8 of the Federal Rules of Criminal Procedure, a
defendant should not have been joined in an indictment in the
reciting Rule 8 and describing a district court case applying
it, Mr. Dermen immediately asserts the first of several
arguments that he will be prejudiced by a joint trial. Thus,
it is unclear whether Mr. Dermen is arguing that his joinder
in this indictment was impermissible under Rule 8, or whether
he mistakenly believes that the Rule 8 standard somehow bears
on the discretionary Rule 14 standard for severance. The
court suspects the latter, but to the extent Mr. Dermen meant
to bring a motion seeking mandatory severance on the basis of
misjoinder, the court briefly applies the relevant standard
to the operative indictment.
The indictment or information may charge 2 or more defendants
if they are alleged to have participated in the same act or
transaction, or in the same series of acts or transactions,
constituting an offense or offenses. The defendants may be
charged in one or more counts together or separately. All
defendants need not be charged in each count.
Fed. R. Crim. P. 8(b). Rule 8 is construed broadly “to
allow joinder to enhance the efficiency of the judicial
system.” Caldwell, 560 F.3d at 1212.
“The test for a proper joinder is a common thread to
each of the defendants.” United States v.
Rogers, 921 F.2d 975, 984 (10th Cir. 1990). “In
conspiracy cases, the general rule is that persons indicted
together should be tried together.” Id.
of the operative indictment charges Mr. Dermen and every
other defendant with conspiring to commit mail fraud. That
count forms the heart of this case, alleging that defendants
engaged in a years-long scheme to fraudulently obtain
refundable fuel tax credits in the amount of $511 million. A
holistic review of the indictment reveals that the mail fraud
conspiracy is itself the “common thread” between
the joined defendants in that the tax fraud scheme that forms
the basis of that count is a central evidentiary component of
each of the remaining charges (false tax returns, money
laundering/concealment, and obstruction of justice). Put
simply, there is no charged conduct in the operative
indictment that does not grow out of the scheme alleged in
Count I. Because the conduct giving rise to the mail fraud
conspiracy charge runs throughout the indictment, Mr.
Dermen's joinder in this case is well within the
parameters of Rule 8.
Prejudice from Joint Trial
Rule 14(a) of the Federal Rules of Criminal Procedure, a
court may nevertheless sever properly joined defendants
“[i]f the joinder of . . . defendants in an indictment
. . . appears to prejudice a defendant.”
“Severance is a matter of discretion, not of right, and
the defendant bears a heavy burden of demonstrating prejudice
to his case.” United States v. Rogers, 925
F.2d 1285, 1287 (10th Cir. 1995) (quoting United States
v. Mabry, 809 F.2d 671, 682 (10th Cir. 1987)). “To
meet this burden, [a] defendant must demonstrate actual
prejudice and not merely a negative spill-over effect from
damaging evidence presented against codefendants.”
United States v. Wacker, 72 F.3d 1453, 1468 (10th
Cir. 1995). That the moving defendant is less culpable or is
charged in fewer counts does not suffice to establish actual
prejudice caused by a joint trial. Id.
“[S]everance ‘should be granted only when there
is a serious risk that a joint trial would compromise a
specific trial right of one of the defendants, or prevent the
jury from making a reliable judgment about guilt or
innocence.'” United States v. Caldwell,
560 F.3d 1202, 1213 (10th Cir. 2009) (quoting United
States v. Zapata, 546 F.3d 1179, 1191 (10th Cir. 2008)).
determining the merits of a motion for severance, the trial
court must balance two competing interests by weighing the
prejudice to a particular defendant caused by the joinder
against considerations of economy and expedition in judicial
administration.” United States v. Pack, 773
F.2d 261, 266 (10th Cir. 1985).
Dermen contends that he will face actual prejudice by the
introduction of evidence that falls into two categories: (1)
evidence related to the Davis County Cooperative Society (the
“Order”), of which he is not a member; and (2)