The opinion of the court was delivered by: McLAUGHLIN, Sean J., District J.,
Defendant Jeremy Noyes was indicted by a federal grand jury sitting in Erie, Pennsylvania after a search of his home computer and e-mail accounts led to the discovery of illicit material. Counts One through Three of the Indictment charge Noyes with, respectively, the transportation, receipt, and possession of material depicting minors engaged in sexually explicit conduct in violation of 18 U.S.C. §§ 2252(a)(1), (a)(2), and (a)(4)(B). Count Four of the Indictment charges Noyes with transportation of obscene matter in violation of 18 U.S.C. § 1462. This Court has subject matter jurisdiction over the case pursuant to 18 U.S.C. § 3231.
Presently pending before the Court is a motion by Noyes to sever the obscenity charge in Count 4 from the remaining charges. For the reasons that follow, this motion will be denied.
The joinder of separate charges in a single indictment is governed by Rule 8(a) of the Federal Rules of Criminal Procedure, which provides as follows:
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.
Fed. R. Crim. P. 8(a). It has been said that "[j]oinder is desirable at the trial level because it 'promote[s] economy of judicial and prosecutorial resources.'" United States v. Hudgins, 338 Fed. Appx. 150, 152 (3d Cir. July 27, 2009) (quoting United States v. Gorecki, 813 F.2d 40, 42 (3d Cir.1987)). See also United States v. Watson, Criminal Action No. 07-cr-238, 2010 WL 1924474 at *7 (E.D. Pa. May 6, 2010) (Rule 8(a) is a "liberal joinder provision" and courts therefore construe the rule broadly in favor of initial joinder) (citing cases). Nevertheless, for joinder to be proper, "a jury must reasonably be expected to compartmentalize the evidence from the separate offenses." Id. at 153 (quoting United States v. Reicherter, 647 F.2d 397, 400 (3d Cir.1981)).
Here, the initial joinder of the obscenity offense at Count 4 with the child pornography offenses at Counts 1 through 3 was proper, and Noyes implicitly concedes as much. According to the Government, the images which serve as the basis of the obscenity charge involve various animations, drawings, and cartoons depicting the sexual abuse of children; thus, the offense being charged in Count 4 is of the same or similar character as the offenses charged in Counts 1 through 3. See United States v. Gendron, No. S2-4:08CR244 RWS, 2009 WL 5909129 at *1 (E.D. Mo. Oct. 28, 2009) (offenses are of "similar" character if they are "nearly corresponding; resembling in many respects; somewhat alike; having a general likeness"; obscenity charge was properly joined with child pornography charge where both offenses involved images of children engaged in sexually explicit conduct). In addition, the Government has represented that these allegedly obscene images were sent close in time to -- and in some cases, simultaneously with -- the transmissions of the allegedly pornographic images. Thus, the transportation of obscene material alleged in Count 4 is based on the same acts or transactions that serve as a basis for the pornography charges in Counts 1 through 3. Finally, there should be no real difficulty in terms of the jury compartmentalizing the evidence relative to the various charges. The evidence underlying the two types of offenses, though of similar character, is distinct: the images serving as the basis for Count 4 involve animated or cartoon depictions of children, whereas the images serving as the basis for the pornography charges in Counts 1 through 3 involve actual children. While the rules of law governing Count 4 differ from those governing Counts 1-3, there is no reason to believe that the jury will be unable to segregate the evidence and give separate consideration to each offense based upon the governing rules of law, which will be explained to them at trial.
Where the initial joinder of offenses is proper, a severance can be obtained only pursuant to Rule 14(a). That rule provides:
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). A defendant bears a "heavy burden" in showing prejudice from joinder, United States v. Hudgins, 338 Fed. Appx. at 153 (citing United States v. Console, 13 F.3d 641, 655 (3d Cir.1993)), and he or she must demonstrate that joinder will result in a "manifestly unfair trial, beyond a mere showing that he would have had a better chance of acquittal with separate trials." Id. (quoting Government of Virgin Islands v. Sanes, 57 F.3d 338, 341-342 (3d Cir.1995) (internal quotations omitted)). In considering whether a criminal defendant was prejudiced by the joinder of multiple charges, our circuit court of appeals has considered factors such as: (1) whether the presentation of separate counts with distinct and extensive evidence confused the jury, (2) whether the charging of several crimes made the jury hostile, and (3) whether the jury was able to segregate the evidence as to each count. United States v. Torres, 251 Fed. Appx. 763, 764 (3d Cir. Sept. 21, 2007) (citations omitted). "Of primary concern in considering a motion for severance is 'whether the jury can reasonably be expected to compartmentalize the evidence,' as it relates to each count by following the instructions of the trial court." United States v. Reicherter, 647 F.2d 397, 400 (3d Cir. 1981) (citation omitted).
The question whether to sever offenses or defendants charged in an indictment pursuant to Rule 14 rests in the sound discretion of the district court. See United States v. McCode, 317 Fed. Appx. 207, 212 (3d Cir. Mar. 20, 2009) (citing United States v. Lore, 430 F.3d 190, 205 (3d Cir.2005)); United States v. Sebetich, 776 F.2d 412, 427 (3d Cir. 1985) ("The trial judge is in the best position to balance the possible prejudice to a defendant against the concerns of judicial economy."). Even where prejudice is possible, the trial court is not required to order a severance because "less drastic measures, such as limiting instructions, often will suffice." Torres, supra, at 764.
In this case, no showing of prejudice has been made that would justify a Rule 14(a) severance. Noyes points out the obscenity count will be governed by the 3-part test set forth Miller v. California, 413 U.S. 15 (1973),*fn1 and will likely be challenged on First Amendment grounds. He insists that, if a severance is not granted, "confusion will result at trial such that a fair trial can never be had and the [nuances] of the issues may be lost in the shadow of the drama of the child pornography charges in counts 1-3." (Mot. for Separate Trial on Count 4  at ¶ 9, p. 2.) As I have already noted, however, the evidence pertaining to the obscenity count will be easily distinguishable from the evidence pertaining to the pornography counts, as the former will involve only drawings, animations ...