govinfo:USCOURTS-kyed-5_23-cr-00109-0

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UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF KENTUCKY 
CENTRAL DIVISION 
(at Lexington) 
 
UNITED STATES OF AMERICA,  
 
 Plaintiff, 
 
V. 
 
TANNER M. ABBOTT, 
 
Defendant. 
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Criminal Action No. 5: 23-109-DCR 
 
 
 
MEMORANDUM OPINION 
AND ORDER  
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 Defendant Tanner Abbott seeks to sever the charges against him into three jury trials.  
However, the offenses are properly joined in the Superseding Indictment under Rule 8(a) of 
the Federal Rules of Criminal Procedure and Abbott has f ailed to demonstrate substantial, 
compelling, or undue prejudice resulting from their joinder.  Accordingly, his motion to sever 
will be denied. 
I. 
 Abbott has been charged with committing a series of offenses while acting under color 
of law in his position as a Deputy Sheriff with the Boyle County, Kentucky Sheriff’s Office.1  
Count 1 alleges that, on or about April 28, 2021, Abbott willfully deprive d an individual 
identified as “J.C.” of his constitutional right to be free from unreasonable force and seizure 
during arrest when Abbott punched J.C. in the head without legal justification, resulting in 
bodily injury in violation of 18 U.S.C. § 242.  Count 2 of the Indictment  alleges that Abbott 
 
1 A Superseding Indictment was returned on December 7, 2023.  However, it  did not 
substantively change the charges against Abbott.  Instead, it corrected the counties  within the 
Eastern District of Kentucky in which some the events are alleged to have occurred. 
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committed a similar offense on February 2, 2021, when he punched “W.W.” in the head 
without legal justification, causing bodily injury, also in violation of 18 U.S.C. § 242.  Count 
3 of the Indictment alleges that Abbott violated  18 U.S.C. § 371 by conspiring with another 
person to make a false record entry with the intent to impede, obstruct, and influence the 
investigation and proper administration with respect to the February 2, 2021, incident 
involving W.W. 
 Next, Abbott is charged in Count 4 with violating § 242 by violating “ B.T.’s” right to 
be free from unreasonable searches when Abbott illegally searched a hotel room occupied by 
B.T. on or about March 31, 2021.  Count 5 alleges that Abbott knowingly falsified and made 
a false entry in a record or document with the intent to impede, obstruct, and influence the 
investigation and proper administration with respect to the March 31, 2021, incident involving 
B.T. in violation of 18 U.S.C. § 1519. 
 Count 6 alleges that Abbott violated § 242 on or about March 31, 2021, when he used 
unreasonable force during an arrest by causing B.T.’s head to forcibly collide with a wall, 
causing bodily injury to B.T.  Finally, Count 7 alleges that on or about January 20, 2021, 
Abbott violated § 242 when he p unched and struck “D.N.” and “D.B.” without legal 
justification, resulting in bodily injury to them.   
 Abbott has filed a motion to sever the counts into three  separate trials.
2  Specifically, 
he contends that the charges should be tried as follows: Count 1; Counts 2, 3, 4, 5, and 6; and 
Count 7.  He essentially seeks separate trial s with respect to the alleged conduct involving 
distinct victims (Counts 1 and 7) and conduct involving other victims that will require the jury 
 
2 Abbott originally sought severance into four trials, but his reply brief  adopts the position 
discussed herein.   
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to evaluate video evidence and the testimony of unindicted co- conspirator Brandon Hooper 
(Counts 2, 3, 4, 5, and 6). 
II. 
 Rule 8(a) of the Federal Rules of C riminal Procedure allows joinder when separate 
counts “are of the same or similar character, or are based on the same act or transaction, or are 
connected with constituent parts of a common scheme or plan.”  Fed. R. Crim. P. 8(a).  Abbott 
argues that the charges were improperly joined because the alleged offenses “arise from 
separate transactions” and “involve different circumstances.”  [Record No. 14-1, p. 4] He relies 
on United States v. Chavis , 296 F.3d 450 (2002) , in an effort to establish that the charged 
offenses do not satisfy the requirements of Rule 8(a).  Chavis was charged with causing another 
person to make a false statement to a federally licensed firearms dealer on or about September 
13, 1997 (Count 1), and unlawfully possessing cocaine base with the intent to distribute on or 
about June 9, 1999 (Count 2).  The United States Court of Appeals for the  Sixth Circuit 
determined the joinder of the two offenses was improper because there was no evidence that 
Chavis’s possession of cocaine base in June 1999 was part of the same act or transaction as 
the purchase of the handgun in September 1997 or that the offenses were otherwise connected.  
Id. at 456. 
 The facts alleged here are distinguishable from  those in Chavis.  Whether joinder is 
proper under Rule 8(a) is determined based on the allegations on the face of the indictment.  
Id. at 456- 57.  First, the offenses charged are of the same or similar character.  Abbott is 
charged in Counts 1, 2, 6, and 7 with depriving certain individuals of their right to be free from 
a law enforcement officer’s use of unreasonable force during an arrest in violation of 18 U.S.C. 
§ 242.  While Count 4 does not allege excessive force, it is similar to the aforementioned counts 
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in that it alleges a violation of 18 U.S.C. § 242, this time involving an unreasonable search.  
Finally, Counts 3 and 5 are logically connected to the remaining charges because they allege 
that Defendant Abbott (either alone or by conspiring with another law enforc ement officer)  
knowingly falsified records related to the events.  Further, in contrast to the events in Chavis, 
which were separated by a span of two years, the allegations in this matter are alleged to have 
taken place over a period of four months.  See e.g., United States v. Smirnoff, 382 F. Supp. 3d 
1278, 1281 (M.D. Ala. 2019) (concluding that July 2015 and March 2016 incidents were 
sufficiently similar when they both alleged that the defendant used unreasonable force while 
arresting handcuffed people). 
 Abbott urges this Court to rule in his favor after applying test discussed in United States 
v. Jawara, 474 F.3d 565, 577 (9th Cir. 2006), which examines factors such as “temporal 
proximity, physical location, modes of operation, identity of the victims, likelihood of 
evidentiary overlap, and the like, to the extent they can be gleaned from the indictment.”  
However, Ninth Circuit authority is not binding on this Court and it does not appear that the 
Sixth Circuit has adopted such a standard for assessing  the propriety of joinder under Rule 
8(a).  See United States v. Hatton, 643 F. App’x 574, 583 (6th Cir. 2016) (conc., in part, J. 
Donald).  But e ven if the Court applied such a test, Abbott still could not show that joinder 
under Rule 8(a) was improper, as the acts alleged occurred over a relatively brief time period, 
in the same the same general physical location, exhibit a similar “mode of operation,” and will 
likely have some evidentiary overlap.   
III. 
 Even when joinder is proper under Rule 8(a), Rule 14 permits severance if a single trial 
on all counts would be unduly prejudicial  to the defendant or the government.  A defendant 
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suffers prejudice if the jury would be unable to keep the evidence from each offense separate 
and unable to render a fair and impa rtial verdict on each charge.  United States v. Rox , 692 
F.2d 453, 454 (6th Cir. 1982).  “To prevail on a request for severance the defendant must show 
compelling, specific, and actual prejudice.”  Thomas v. United States, 849 F.3d 669, 675 (6th 
Cir. 2017).   
 Abbott contends that trying all of the charges together will prevent him from presenting 
a “meaningful defense” with respect to each count.  For example, with respect to one count, 
he may concede that force was used, but argue that it was justified.  On another count, he may 
contend that force was not used at all.  Abbott also asserts that his defense to Counts 2 through 
6 will be unique because it will likely involve impeaching the testimony of Brandon Hooper.   
 Abbott further contends that any claim at trial that he did not use force on a particular 
occasion would be severely undermined by his admission that he used justified force on 
another occasion.  [Record No. 14- 1, p. 10]   However, these defenses are not “mutually 
antagonistic” such that a jury could not believe both defenses and apply them to the appropriate 
charges.  See United States v. Zafiro, 506 U.S. 534, 538 (1993) ( noting that mutually 
antagonistic or irreconcilable defenses may be so prejudicial as to mandate severance in multi-
defendant cases). 
 The resolution of a motion to sever under Rule 14 is left to the sound discretion of the 
trial court.  See  id. at 541.  The defendant is not entitled to separate trials simply because he 
asserts that each charge will prejudice the jury’s consideration of the other —instead he must 
point to compelling or substantial prejudice that cannot be cured with appropriate limiting 
instructions.  And it is well established in the Sixth Circuit that a jury is presumed capable of 
compartmentalizing evidence and considering each count separately.  See United States v. 
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Swift, 809 F.2d 320, 323 (6th Cir. 1987); United States v. Ross , 703 F.3d 856, 884 (6th Cir. 
2012) (observing that “[e]ven where the risk of prejudice is high, ‘less drastic measures, such 
as limiting instructions, often will suffice to cure any risk of prejudice.’”) (quoting Zafiro, 506 
U.S. at 539); United States v. Cody, 498 F.3d 582-87-88 (6th Cir. 2007) (noting that the court 
may “issue a careful limiting instruction to the jury on the issue of possible prejudice resulting 
from the joinder.”).  S ee also United States v. Smith, 2008 WL 11425655, at *3 (N.D. Ala. 
Mar. 24, 2008) (observing that the “reliable judgment” exception applies in “an extremely 
narrow range of cases in which the sheer number of defendants and charges with different 
standards of proof and culpability, along with the massive volume of evidence, makes it nearly 
impossible for a jury to juggle everything properly and assess” guilt or innocence).   
 Abbott further argues that a jury will impermissibly rely on the various charges as 
evidence of “other bad acts .”  He cites United States v. Asher , 910 F.3d 854 (6th Cir. 2018) , 
which involved evidence admitted under Rule 404(b) of the Federal Rules of Evidence.  Asher 
was a jailor at Kentucky River Regional Jail who stood trial for violating 18 U.S.C. §§ 242 
and 1519 by beating inmate Hill and subsequently filing a false report to cover up the incident.  
The government was permitted to introduce evidence of Asher’s participation in a similar 
assault and cover-up involving a different inmate that occurred approxim ately two and a half 
years earlier to prove evidence of his intent when he assaulted Hill.  On appeal, the Sixth 
Circuit determined that this ruling was in error based on the modest probative value of the 
evidence due to alternative methods of proof ( i.e., Asher’s willingness to stipulate to intent if 
the jury found that he assaulted Hill) and the severely prejudicial nature of the evidence.  Id. 
at 862-63. 
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 Asher is inapposite.  First, it involves the application of Rule 404(b) of the Federal 
Rules of Evidence to evidence of “other acts” instead of joinder of charges or a motion for 
severance under Rule s 8 and 14 of the Rules of Criminal Procedure.  But see Corbett v. 
Bordenkircher, 615 F.2d 722, 724 (6th Cir. 1980) (recognizing that “[t]he issue raised by a 
motion to sever counts for trial is akin to that dealt with under the rules of evidence that have 
to do with proof of other crimes.”).  And as the Sixth Circuit explained, the e videntiary value 
was relatively low because Asher was willing to stipulate to his intent if the jury found that he 
attacked Hill.  Additionally, the “other act” was based on uncharged conduct that occurred 
over two years prior to the crimes charged.   
 Abbott argues that the commonality of proof among the claims is minimal, while the 
likelihood for confusion of the jury and unfair prejudice to him is great.  However, the charges 
are properly joined and Abbott’s general ized arguments do not establish that “compelling, 
specific, and actual prejudice” would result from a failure to sever.  See United States v. 
Saadey, 393 F.3d 669, 678 (6th Cir. 2005).  Juries are presumed capable of considering each 
count separately and there is no reason to suspect that a j ury would not be able to 
compartmentalize and distinguish the evidence concerning the different offenses charged.  See 
Chavis, 296 F.3d at 462.  W hile the Court recognizes that some evidence will be unique to 
particular charges, there will undoubtedly be extensive overlap, and a single trial best serves 
the interest of judicial economy. 
IV. 
 Based on the foregoing analysis and discussion, it is hereby 
 ORDERED that the defendant’s motion to sever [Record No. 14] is DENIED. 
  
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 Dated: December 14, 2023. 
 
 
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