MOTION FOR PRODUCTION

AND DISCLOSURE OF STATEMENTS BY CO-DEFENDANTS

* * *, by and through undersigned counsel, moves this Court for its Order requiring the government to produce any and all incriminating statements made by co-defendants in this cause. In support of this motion, Mr. * shows this Court as follows:

Mr. * has been charged by indictment with a violation of 21 U.S.C. § 846. Trial in this cause is scheduled for December 1, 1995.

2. Mr. * is charged in this indictment with named co-defendants and is scheduled for joint trial with these co-defendants.

3. It is anticipated that the government will seek to introduce at trial, statements by the co-defendants in this case which tend to incriminate him. At this time, it is not anticipated that any of the named co-defendants will testify at trial.

4. No discoverable evidence has yet been given to the Defendant in this case.

5. The Sixth Amendment of the Constitution of the United States prohibits the government from introducing into evidence any and all statements by co-defendants that tend to incriminate an accused, when those co-defendants do not testify at trial. When and if such statements are offered into evidence, a severance of the Defendant, above-named, from this case would be the only means whereby the Sixth Amendment right of confrontation can be protected.

WHEREFORE, the Defendant moves this Court for its Order requiring the government to produce any and all statements of co-defendants in this case that may tend to incriminate him as to the offenses charged.

MEMORANDUM OF LAW

In Bruton v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Supreme Court held that the defendant is deprived of his rights under the Confrontation Clause of the Sixth Amendment when his co-defendant's incriminating statement is introduced at their joint trial. This occurs even if the jury is instructed to consider those statements only against the co-defendant. The Supreme Court reaffirmed Bruton, holding in Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514, 106 S.Ct. 2056 (1986), that a post arrest statement made by a nontestifying codefendant is not admissible* against a defendant on the theory that it constitutes a statement against interest. Finally, in Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987), the Court held that "where a nontestifying codefendant's confession incriminating the defendant is not directly admissible against the defendant... the Confrontation Clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant...." Id. 107 S.Ct. at 1719.

In this case, the government has not provided the Defendant any statements made by co-defendants in this cause that would tend to incriminate him. In addition, the Defendant has received no assurance from the government that such statements are not part of the government's case and the government does not intend to introduce such statements into evidence. If such statements exist and the government intends to use them at trial, the Defendant has cause and the authority of the Supreme Court to require that such statements be edited or redacted in such a manner so as to avoid incriminating him.

Such editing and redacting are required by Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). There the Supreme Court confronted the question of whether or not, at a joint trial, the government could introduce a confession by a non-testifying defendant, where the confession did not mention the defendant by name and had been redacted "to omit all indication that anyone other than the [co-defendant] and [the co-defendant who confessed] participated in the crime. Id. 107 S.Ct. 1705. The Court held:

We hold that the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting and instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to her existence.

ld. 107 S.Ct. 1709.

In accordance with this authority, it is clear that the Defendant can and will be tried jointly with the other named co-defendants in this case. In order to avoid the necessity of seeking a severance at trial and/or motion for mistrial, the Defendant moves this Court for its order requiring the government to produce any and all statements made by co-defendants in this case that can in any way incriminate the Defendant as to the offenses charged.

DATED this day of October, 1995.

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