10-1896 U.S. v. States

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Criminal Procedure
Severance; waiver

A defendant who fails to move to sever the counts against him waives the issue.

“In this case, there is little question that States waived, rather than forfeited, his arguments. Prior to trial, he
moved to sever his co-defendants under Rules 8 and 14.

Both of those rules discuss joinder and severance based on defendants and charges. Moving to sever on one ground but not the other suggests that the decision was intentional. The conclusion is bolstered here because one of States’s co-defendants did file a motion to sever charges. And in ruling on the motion, the district court noted that States had not moved to sever on that basis. States made no response to the district court at that time. Having had the issue of severing charges brought to his attention, States did not seek to have the charges severed at the close of trial before the jury returned a verdict. See United States v. Plato, 629 F.3d 646, 650 (7th Cir. 2010) (failure to renew a motion to sever generally results in waiver). The rule that parties generally waive severance arguments by failing to renew their motions has the salutary ‘effect of discouraging strategic choices by criminal defendants who would prefer to wait for a verdict before renewing their severance arguments.’ Rollins, 301 F.3d at 518. The concern that informs our waiver rule is implicated on these facts. Although States had not moved to sever prior to trial, he was aware of the tactic by the time of the close of evidence; he made no effort to have the charges severed until after the verdict. By keeping his powder dry, States waived both his misjoinder and prejudicial joinder arguments.”

Affirmed.

10-1896 U.S. v. States

Appeal from the United States District Court for the Northern District of Illinois, Guzman, J., Flaum, J.

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