United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
B. SARIS, Chief United States District Judge
Barry Davis is charged in a multicount Superseding Indictment
alleging sex trafficking by force, fraud, and coercion in
violation of 18 U.S.C. § 1591(a) and (b)(1) (Counts One,
Three, Five, and Eight), sex trafficking of a minor in
violation of 18 U.S.C. § 1591(a), (b)(1), and (b)(2)
(Count Seven), and transportation of an individual with
intent to engage in prostitution in violation of 18 U.S.C.
§ 2421 (Counts Two, Four, Six, and Nine).
majority of the counts are based on alleged conduct in 2015.
Counts Five, Six, and Seven are based on alleged conduct from
2001 to 2003. Davis filed a Motion for Relief from Misjoinder
and/or Severance of Counts and asked the Court to conduct
four trials. After a hearing, the Court
ALLOWS the motion and severs Counts
Five, Six, and Seven. The Court
DENIES the motion with respect to
severing Counts Eight and Nine.
of offenses is appropriate where they 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).
Rule 8(a) “is generously construed in favor of
joinder,” in part because Fed. R. Crim. P. 14 provides
a layer of protection against joinder that unduly prejudices
the defendant. See United States v. Randazzo, 80
F.3d 623, 627 (1st Cir. 1996). In analyzing joinder, courts
examine “whether the charges are laid under the same
statute, whether they involve similar victims, locations, or
modes of operation, and the time frame in which the charged
conduct occurred.” United States v. Buchanan,
930 F. Supp. 657, 662 (D. Mass. 1996) (quoting United
States v. Taylor, 54 F.3d 967, 973 (1st Cir. 1995)).
the “older counts” (Counts Five through Seven)
are arguably “of the same or similar character”
as the 2015 counts. All charges in the Superseding Indictment
are brought under the same statutes, 18 U.S.C. §§
1591, 2421, but the conduct alleged in Counts Five through
Seven occurred at least twelve years earlier. While one of
the alleged victims in Counts Five through Seven is arguably
similar to those in the 2015 counts, the other is a minor,
and the government has not proffered a connection between the
women in Counts Five through Seven and the women in the other
counts. Counts Five through Seven also involve different
locations (homes and brothels in 2001 through 2003 as opposed
to hotels and motels in 2015) and different alleged methods
(brothels in 2001 to 2003 as opposed to online ads in 2015).
Davis persuasively argues that Counts Five through Seven were
misjoined in light of the temporal difference from the other
counts. Indeed, the government cites no case where a court
found joinder proper when twelve or more years separated the
charged conduct. See Docket No. 81 at 15 (citing
cases affirming joinder of counts separated by three and five
offenses are properly joined, the Criminal Rules authorize
severance of counts “[i]f the joinder of offenses . . .
appears to prejudice a defendant.” Fed. R. Crim. P.
14(a). As relevant here, Rule 14 allows severance if
“proof that [the] defendant is guilty of one offense
may be used to convict him of a second offense, even though
such proof would be inadmissible in a separate trial for the
second offense . . . .” United States v.
Jordan, 112 F.3d 14, 16 (1st Cir. 1997). To succeed on a
motion to sever, the defendant must “make a strong
and convincing showing of prejudice.” United States
v. Richardson, 515 F.3d 74, 81 (1st Cir. 2008) (internal
citations omitted). “Garden variety prejudice, however,
will not, in and of itself, warrant severance.”
argues that there will be “spillover prejudice”
if all nine counts are tried together. See Docket
No. 69 at 6. In particular, Davis states that the likelihood
of spillover prejudice is high given the similarity of the
bad acts charged. The government argues that evidence of the
alleged conduct supporting Counts Five through Seven is
admissible in a separate trial on the remaining counts.
See Docket No. 81 at 17–20.
whether “spillover prejudice” rises to the Rule
14 standard here requires determining whether evidence of
Counts Five through Nine would be admissible in a trial on
Counts One through Four, or vice versa. In particular, the
Court must determine whether such “other bad
acts” evidence is admissible under Fed. R. Evid.
404(b). Rule 404(b) provides that:
Evidence of a crime, wrong, or other act is not admissible to
prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the
character. . . . This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.
Fed. R. Evid. 404(b). Extrinsic evidence of prior bad acts
must pass a two-part test to be admitted. See United
States v. Rodriguez-Cardona, 924 F.2d 1148,
1150–51 (1st Cir. 1991). First, the evidence must have
“special relevance” to a contested issue, such as
intent or knowledge, and it must not include bad character or
propensity as a necessary link in the inferential chain.
See United States v. Varoudakis, 233 F.3d 113, 118
(1st Cir. 2000). The special relevance inquiry includes
consideration of the temporal relationship between the
proffered act and the degree of similarity to the crime
charged. See United States v. Landry, 631 F.3d 597,
602 (1st Cir. 2011); Varoudakis, 233 F.3d at 119.
Second, the evidence must withstand Federal Rule of Evidence