IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES )

)

v. ) Criminal No. 9x-0061 (TFH)

)

xxxxxxxxxxxxxxxx, )

)

Defendant. )

_________________________)

DEFENDANT xxxxxxxxxxxxx MOTION FOR SEVERANCE OF COUNTS

Defendant xxxxxxxxxxx, through undersigned counsel, respectfully moves the Court for an Order pursuant to Fed. R. Crim. P. 8(a) and 14, severing Counts One and Two of the indictment from the remaining counts for trial. The grounds for this Motion are more fully set forth in the accompanying Memorandum.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

__________________________

Amy Seidman

Assistant Federal Public Defender

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500

Dated: July 5, 1994

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES )

)

v. ) Criminal No. xx-00061 (TFH)

)

xxxxxxxxxxxxxxxxxxxxx, )

)

Defendant. )

_________________________)

MEMORANDUM IN SUPPORT OF DEFENDANT

xxxxxxxxxxx MOTION FOR SEVERANCE OF COUNTS

Pursuant to Fed. R. Crim. P. 8(a) and 14, the Court should sever Counts One and Two of the superseding indictment in this case from the remaining counts for trial.

BACKGROUND

On February 18, 1994, defendant xxxxxxx was indicted on four counts in an indictment. Count One charges xxxxxxx with "knowingly and willfully, made and used and caused to be made and used a false document knowing the same to contain false, fictitious and fraudulent material statements and entries, in that the defendant, intending to obtain a position as a Senior Environmental Health Site Representative at the DOE, presented to the DOE A United States Government SF-171 in which he stated that he received a Master of Science degree and a Bachelor of Arts degree, knowing the same to be false.

Similarly, Count Two charges xxxxxxx with "knowingly and willfully, made and used and caused to be made and used a false document knowing the same to contain false, fictitious and fraudulent material statements and entries, in that the defendant, intending to obtain a position as a Senior Environmental Health Site Representative at the DOE, presented to the DOE A United States Government SF-171 in which he stated that he received a Master of Science degree and a Bachelor of Arts degree, knowing the same to be false.

In contrast, Count Three charges an entirely different type of offense, occurring over a different time period, and having no evidence in common with the offenses charged in Counts One and Two. Count Three charges that xxxxxxx "applied and received Citicorp Diners Club cards under the federal government's credit card program by using a fraudulent social security number of 172-38-4726.

Count Four is similarly removed from the offenses charged in Counts One and Two. Count Four charges that xxxxxxx "knowingly and willfully, made and used and caused to be made and used a false document knowing the same to contain false, fictitious and fraudulent material statements and entries, in that the defendant, intending to obtain multiple Citicorp Diners Club cards under the federal government's credit card program, presented to DOE a Citicorp Diners Club application, in which he stated that his social security number was 712-38-4726, knowing the same to be false.

In contrast, Count Three and Four charge an entirely different type of offense, occurring over a different time period, and having no evidence in common with the offenses charged in Counts One and Two. Count Three and Four charge that xxxxxxx "applied and received Citicorp Diners Club cards under the federal government's credit card program by using a fraudulent social security number of 172-38-4726. The type of offense are different from the offense in Counts One and Two; it allegedly occurred after the offense charged in Counts One and Two; it involved different alleged victims than the offense in Counts One and Two; and the alleged conduct by xxxxxxx differs from that charged in Counts One and Two. Further, it appears that the prosecution would be required to call different witnesses in its attempt to prove Count Three and Four than would be required for Counts One and Two.

ARGUMENT

I. THE COUNT SHOULD SEVER COUNTS THREE AND

FOUR FROM THE REMAINING COUNTS FOR TRIAL.

The prosecution's joinder of unrelated charges against xxxxxxx mandates severance of counts under Fed. R. Crim. P. 8(a) and 14. Counts Three and Four of the superseding indictment must be severed from Counts One and Two for trial.

Rule 8(a) permits joinder of offenses in a single indictment only if the offenses (i) are of the same or similar character; (ii) are based on the same act or transaction; or (iii) are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan. See Fed. R. Crim. P. 8(a).

Counts One and Two of the indictment, both charging xxxxxxx with "knowingly and willfully, made and used and caused to be made and used a false document knowing the same to contain false, fictitious and fraudulent material statements and entries, in that the defendant, intending to obtain a position as a Senior Environmental Health Site Representative at the DOE, presented to the DOE A United States Government SF-171 in which he stated that he received a Master of Science degree and a Bachelor of Arts degree, knowing the same to be false. In contrast, Count Three, a false statement count relating to a credit card program and social security number, fails to satisfy the standard for joinder of offenses under Rule 8(a). The credit card program, social security number charge is not "of the same or similar character" as the offenses in Counts One and Two; it is not based "on the same act or transaction" as the offenses charged in Count One and Two; and it is not based on "two or more acts or transactions connected together or constituting parts of a common scheme or plan." Fed. R. Crim. P. 8(a).

Count Four also is improperly joined with Counts One and Two. Count Four, which also charges that xxxxxxx committed fraud to obtain multiple Citicorp Diners Club cards under the federal government's credit card program by stating a false social security number, is not "of the same or similar character" as the offenses charged in Counts One and Two. Further, the credit card offenses are not based "on the same act or transaction" or on "two or more acts or transactions connected together or constituting parts of a common scheme or plan." Fed. R. Crim. P. 8(a).

Even if the joinder of Counts One and Two with the remaining counts did not run afoul of Rule 8(a), the Court should order a severance of counts because xxxxxxx's defense will be prejudiced by the joinder of Counts One and Two with the remaining counts for trial. See Fed. R. Crim. P. 14. First, xxxxxxx may present separate defenses on the various charges, and a joint trial could "embarrass[] or confound[]" him in the presentation of those defenses. Drew v. United States, 331 F.2d 85, 88 (D.C. Cir. 1964). Second, a joint trial would create the danger that the jury would use evidence admissible as to one count "to infer a criminal disposition" on the part of xxxxxxx as to other counts. Id.; see United States v. Foutz, 540 F.2d 733, 736-38 (4th Cir. 1976); United States v. Gregory, 369 F.2d 185, 189 (D.C. Cir. 1966), cert. denied, 396 U.S. 865 (1969). And a joint trial on all counts against xxxxxxx creates a grave danger that the evidence as to each separate count will "cumulat[e] in the jurors' minds." Id.; see United States v. Halper, 590 F.2d 422, 430 (2d Cir. 1978); United States v. Gregory, 369 F.2d at 189. For each of these reasons, severance of Counts One and Two from the remaining counts for trial is essential under Fed. R. Crim. P. 14.

CONCLUSION

For the foregoing reasons, and for any additional reasons set forth in supplemental pleadings that xxxxxxx reserves the right to file, defendant xxxxxxx requests that the Court sever Counts One and Two of the indictment from the remaining counts for trial.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

__________________________

Amy Seidman

Assistant Federal Public Defender

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500

Dated: July 5, 1994

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES )

)

v. ) Criminal No. 9x-0061 (TFH)

)

WILLIAM xxxxxxx, )

)

Defendant. )

_________________________)

ORDER

Upon consideration of defendant xxxxxxx's Motion for Severance of Counts, the Memorandum in Support thereof, the Government's Opposition thereto, and the entire record in this matter, it is this _________ day of ________________, 1994, hereby

ORDERED that defendant xxxxxxx's Motion for Severance of Counts is hereby granted; and it is further

ORDERED that Counts One and Two of the indictment are hereby severed from the remaining counts for trial.

____________________________

UNITED STATES DISTRICT JUDGE

Copies to:

Amy Seidman

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

David Baum

555 - 4th Street, N.W.

Washington, D.C. 20001

CERTIFICATE OF SERVICE

I hereby certify that on the 5th day of July 1994, the foregoing Defendant xxxxxxx's Motion for Severance of Counts and the Memorandum in Support thereof were served by telecopier, upon:

David Baum, Esquire

Office of the United States Attorney

for the District of Columbia

555 - 4th Street, N.W.

Washington, D.C. 20001

__________________________

Amy Seidman