IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA )

)

v. ) xxxxxxxxxxxxxxxxxx

)

xxxxxxxxxxx, )

xxxxxxxxxxx )

______________________________)

xxxxxxxxxxxxxxxxxPRELIMINARY MOTION TO SEVER PARTIES AND COUNTS

COMES NOW xxxxxxxxxxx, defendant in the above-styled action, by and through undersigned counsel, pursuant to Rule 14 of the Federal Rules of Criminal Procedure and moves this Court to separate his trial from that of his codefendant, CEDRIC xxxxx, or in the alternative, to separate the trial of the drug counts from the trial of the gun count of the indictment.

xxxxxxxxxx requests severance from his co-defendant, Cedric xxxxx, because he would be prejudiced by being tried with his co-defendant and brother as shown below. xxxxxxxxx requests severance of the gun count in the alternative, because evidence relating to the gun count would prejudice him in the eyes of the jury on the drug counts.

In support of this preliminary motion, xxxxxxxxx states the following:

Victor and Cedric are charged in an eight-count indictment in this district with various controlled substance violations dating from January 1991 to the year of the indictment.

xxxxxxxxx and co-defendant Cedric xxxxx are brothers who live in the same household.

Count Two charges Cedric xxxxx with making false and fictitious statements in connection with the acquisition of a Glock Model 20 10mm pistol in violation of 18 U.S.C. § 922(a)(6). xxxxxxxxx is not charged in this count and there are no allegations regarding firearms against xxxxxxxxx.

In support of the request to sever parties, xxxxxxxxx contends that he would be prejudiced by trial with his brother, because of the "spill-over" effect from evidence to be admitted against his brother. This is especially true where the two co-defendants are brothers as in this case.

The Government has indicated its intention to introduce evidence pursuant to Rule 404(b) of the Federal Rules of Evidence against Cedric xxxxx. At this point, undersigned counsel is unable to determine the exact nature of such evidence because counsel for the Government has not made the criminal records of the defendants available to each co-defendant. Therefore, there might be evidence which could be admissible against Cedric xxxxx pursuant to Rule 404(b) of the Federal Rules of Evidence which could prejudice xxxxxxxxx. Because such information is not presently available, undersigned counsel requests that opportunity to supplement this motion when such information is available regarding Mr. Cedric xxxxx's criminal record.

The trial of this case also is likely to involve statements made by each of the co-defendants. Use of statements made by Cedric xxxxxxx at xxxxxxxxx's trial would prejudice xxxxxxxxx.

In support of the request to sever the gun count, xxxxxxxxx contends that evidence relating to firearms is always inflammatory to juries. In this case, there are no allegations against xxxxxxxxx relating to firearms, but there might be evidence relating to firearms admitted against his brother Cedric xxxxx. That evidence would be prejudicial to xxxxxxxxx. 8.

It further appears that the allegations set forth in Count Two of the indictment are not related to the other allegations in the sense required by Rule 8, and thus joinder of the gun count to the other counts might well be improper without some showing by the Government that the gun count is related in some way to the other counts.

DISCUSSION OF AUTHORITY

Rule 14 of the Federal Rules of Criminal Procedure authorizes severance of the counts in this case:

If it appears that a defendant or the Government is prejudiced by a joinder of defenses or of defendants in an indictment or information, or by such joinder for trial together, the Court may order an election or separate trial of counts, grant a severance of defendants or provide whatever other relief justice requires.

The Government often takes the position that joinder promotes judicial economy, but "joint trial is inappropriate if it sacrifices a defendant's right to a fundamentally fair trial." United States v. Echeles, 352 F.2d 892, 896 (7th Cir. 1965). Joinder of defendants may cause a trial to become unfair and prejudicial to each defendant for a number of reasons.

One basic reason is the "spill over" effect found in trial involving more than one defendant. Such a "spill over" is widely recognized both as to offenses and defendants. Invariably, the evidence against separate defendants will have a different probative value as to each individual defendant.

In a conspiracy case such as this one, the evidence against one defendant may be far greater than as against another. The jury may be unable to separate the relative innocence or guilt among the defendants charged. This confusion may result in a conviction, not on the basis of the evidence relating to one defendant, but by imputing to that defendant guilt based on the activities of the other alleged conspirator. United States v. Tolliver, 541 F.2d 958, 962 (2nd Cir. 1976). "Evidence of a co-defendant's wrongdoing in some circumstances erroneously could lead a jury to conclude that a defendant was guilty." Zafiro v. United States, 61 U.S.L.W. 4147, 4148 (U.S. 111/25/93). A conviction based upon guilt transference is fundamentally unfair.

Additionally, a Bruton v. United States, 391 U.s. 123 (1968), problem arises when there is a joint trial between alleged co-conspirators. The Sixth Amendment to the Constitution of the United States guarantees an individual on trial in a criminal case the right to full and effective cross-examination. If this right to confrontation is hindered, then the judge, in his sound discretion, must grant a severance. This is particularly true when the Government's case against the defendant includes testimony or statement made by a co-defendant.

WHEREFORE xxxxxxxxx requests that he be provided any and all discovery relating to the aforementioned issues, that he be allowed to supplement this motion with additional briefs or motions as necessary, and that this Court separate his trial from the his brother and co-defendant Cedric xxxxx.

DATED: July 12, 2000.

Respectfully submitted,

_______________________________

V. NATASHA PERDEW (571970)

ATTORNEY FOR xxxxxxxxx