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Improper Joinder Demurrer: Dismissal, Not Severance

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by: Ryan • January 31, 2011 • no comments

UPDATE: When arguing that two charges are not from a common scheme or plan, you might want to add the following cases to your memo. United States v. Ohle, 678 F.Supp.2d 215 (S.D.N.Y.2010) (defendant's alleged personal tax evasion was not sufficiently related to alleged conspiracy to develop fraudulent tax shelter to warrant their joinder in single indictment so severance warranted); United States v. Ramallo-Diaz, 455 F. Supp. 2d 22 (D.Puerto Rico 2006) (counts charging conspiracy to embezzle and conspiracy to launder money from an employees' pension plan were not properly joined in indictment charging counts related to embezzlement and laundering of labor union funds); United States v. Kaquatosh, 227 F.Supp.2d 1045 (E.D.Wis.2002) (offense of resisting federal officer was not of same or similar character to counts of assault with intent to kill a Native American so severance warranted).

They're federal cases, but as noted in the memo, the Oregon analysis is taken from the federal analysis. Thanks to Michael Levine for the additional case law.

I have written before on the topic of when counts from the same incident are improperly joined. It arises in a situation where unrelated crimes that arise from the same police contact (say, Felon in Possession and Failure to Register). Such counts are improperly joined, unless the state convinces the judge they are from the same criminal episode. If you lose for that reason, you also win, because now that the two offenses are from the same criminal episode, the shift-to-I rule applies, and your client who might otherwise have been presumptive prison on both counts can only get prison on one.

However, the demurrer - appropriately modified, see below - also applies when crimes are joined from different incident dates. To be properly joined, they must either be of the same or similar character or they are part of a common scheme or plan.

I see a lot of cases where the state has joined all sorts of crimes from days apart that may not qualify under either of those criteria.

Before I get to the analysis, I want to emphasize the remedy. This is NOT a motion to sever. It is a demurrer to the indictment.

The state may argue, without any authority, that the remedy is severance, not a demurrer to the indictment. However, the legislature has only authorized severance when the counts are properly joined in the first place. "If it appears, upon motion, that the state or defendant is substantially prejudiced by a joinder of offenses under subsection (1) or (2) of this section, the court may order an election or separate trials of counts or provide whatever other relief justice requires." ORS 132.560(3).

In other words, unless you are conceding proper joinder but arguing substantial prejudice, you are not asking for severance. The statutory grounds for a demurrer when the initial joinder is improper can be found at the beginning of the attached demurrer.

What's the practical difference? Severance means more work for you. Dismissal means more work for the prosecutor, possibly getting your client out of custody and a chance that reindictment will not be possible.

Let's return to improper joinder based on a theory of common scheme or plan. A frequent example is the joinder of an FTA with the original charge. There is a case in which such joinder was held to be okay, but for very specific reasons that are relatively unique to this defendant. By implication, joinder of FTA to, say, a PCS or other crimes would be improper.

"The 'common scheme or plan' in the failure to appear and the May 25 actions to intimidate Hess is to avoid accountability for defendant's actions on May 10. In failing to appear to answer the May 10 charges, defendant sought to escape blame for their commission. In menacing and endangering Hess on May 25, defendant sought to dodge the consequences of his May 10 actions. The charges from the May 25 fracas are 'logically related' to the failure to appear charge because both sets of charges spring from the May 10 events. Proof of the charges related to the May 10 events is necessary to prove the failure to appear charge and to explain the context and motivation for the May 25 events. The failure to appear charge and the charges from defendant's actions on May 25 are logically related and involve substantial overlapping proof."

State v. Wittwer, 214 Or App 459, 463-464 (2007

In Wittwer, the defendant's failure to appear was part and parcel of the witness tampering and domestic assault and the defendant's general attempt to escape responsibility for his actions. The proof of each was largely overlapping. You won't have anything comparable in a situation where a PCS and FTA are joined.

Then, there's the joinder of crimes that are of a same or similar character. This is an interesting one. Personally, I'd like to see this challenged a hundred times. We might lose 80 out of 100, but it would be better than the status quo. Is ID Theft from December of a similar character to a factually-unrelated Burglary or UUV from July? Is it enough that they may all have a property-crime element, or is something more required to be of "similar character"?

There is a place in the legislative commentary that offers some insight. This was written in the context of the enhancment fact of "persistent involvement," which requires crimes of a "similar" nature.

"EXAMPLE: If an offender has an extensive record of fraud-related convictions and he or she has been convicted for a similar fraud scheme, the sentencing judge may impose an aggravated departure sentence. Such a departure would be most appropriate if the offender's criminal conduct demonstrated a significant level of sophistication and his or her criminal history strongly suggests that the offender will continue to engage in such illegal enterprises."

"EXAMPLE: A departure sentence might also be appropriate under this paragraph for an offender convicted of ORS 163.125 Manslaughter II arising from a domestic dispute if that offender also has an extensive record of domestic violence. The prior history of domestic violence does not need to be represented in the offender's criminal history record to be cited as an aggravating factor."

Commentary, Oregon Sentencing Guidelines Implementation Manual 130 (1989).

Note that not all property crimes are necessarily similar. It's all fraud charges. Nor are all person crimes involving injury "similar." A manslaughter and assault are "similar" if both DV.

We won't know exactly the scope of "similar character' until we start making these arguments. [DEMURRER JOINDER separate incidents].