IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
: Cr. No. 9x-215(01)(JR)
v. :
:
xxxxxxxxx, :
:
Defendant :
MOTION TO SEVER DEFENDANTS
Defendant xxxxxxxxxx, through counsel, respectfully moves pursuant to Fed.R.Crim.P. 14, to sever the defendants in this case and to be tried separately from co-defendant xxxxxxxxxx. As grounds for his Motion, defendant xxxxxxx shows the court:
1. Mr. xxxxxxx and Mr. xxxxxx are charged with conspiracy and with possession with intent to distribute cocaine base. Trial of the case is set for October 10, 1995. On September 11, 1995, the government filed a Notice that it intended to introduce at trial evidence of other crimes with which Dexter xxxxxx is charged. According to the government, Mr. xxxxxx is accused of having made four sales of cocaine base to undercover officers in South Carolina. Pursuant to Fed.R.Evid. 404(b), the government wants to present evidence of those sales to persuade the jury that Mr. xxxxxx had the intent to possess the cocaine base which Brian Bailey purchased from the Drug Enforcement Administration undercover agent on August 1, 1995.
2. Mr. xxxxxxx is in no way connected with any of the alleged sales by Mr. xxxxxx in South Carolina. Therefore, the evidence is inadmissible as to Mr. xxxxxxx. However, if Mr. xxxxxxx is tried with Mr. xxxxxx, the other-crimes evidence would surely prejudice him. For that reason, he is entitled to a severance of his trial from the trial of Mr. xxxxxx. United States v. Day, 591 F.2d 861, 878-79 (D.C. Cir. 1978).
3. If the court determines to admit the other-crimes evidence against Mr. xxxxxx, the weight of the evidence against Mr. xxxxxx will be significantly disproportionate to the weight of evidence against Mr. xxxxxxx. On that basis, as well, Mr. xxxxxxx would be entitled to a severance. United States v. Halliman, 923 F.2d 873, 884 (D.C. Cir. 1991); United States v. Manner, 887 F.2d 317, 324 (D.C. Cir. 1989); United States v. Butler, 822 F.2d 1191, 1994 (D.C. Cir. 1987). In Halliman, the court recognized that when the evidence against one defendant is substantially more damaging than against the other, severance is appropriate. The critical determination, the court stated, is whether a jury could reasonably compartmentalize the evidence introduced against each individual defendant. In the instant case, compartmentalization would be difficult. First, the jury must consider the guilt or innocence of each defendant on the charged offenses separately. In so doing, the jury would be required to follow the court's instructions as to the use to be made of the uncharged conduct in assessing Mr. xxxxxx's guilt. To add to that burden the requirement that the jury disregard any of the 404(b) evidence in assessing Mr. xxxxxxx's guilt is to run a very real risk of jury confusion. Mr. xxxxxxx should not be subjected to such a risk for the simple expediency of judicial economy.
For the foregoing reasons, and any others that may appear at a hearing on this Motion to Sever Defendants, defendant Wayne xxxxxxx respectfully requests that his Motion be granted.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
__________________________
Reita Pendry
Assistant Federal Defender
625 Indiana Avenue, N.W. #550
Washington, D. C. 20004
(202)208-7500