IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA )

)

v. ) CRIMINAL ACTION

)

xxxxxxxxxxx) NO. xxxxxxxxxxxxxx (CC)

______________________________)

MOTION FOR SEVERANCE OF COUNTS

AND BRIEF IN SUPPORT THEREOF

COMES NOW Defendant, xxxxxxxxxxxxxxxxxx, and respectfully moves this Court for an Order granting separate trials on the counts with which he is charged in the indictment. In support of this motion, Defendant shows the following:

(1)

Defendant is charged in the indictment with two counts. Count One charges Mr. xxxxxxx with making false statements on an I.N.S. form on November 25, 1989, in violation of 8 U.S.C. § 1160(b)(7). Count Two claims that Mr. xxxxxxx represented himself to be a United States citizen when applying for a driver's license on October 3, 1991, in violation of 18 U.S.C. § 911.

(2)

Defendant shows that to try both counts in the same trial would expose him to a real and substantial risk of prejudice resulting in denial of a fair trial and possible wrongful conviction, in violation of his due process rights under the Fifth Amendment. The incidents are almost two years apart. They involve unrelated offenses--not only a different section of the U.S. Code, but a different title. Moreover, there are serious suppression questions concerning Count One that will be revealed during pretrial proceedings. The potential of spillover prejudice from joinder is substantial, and threatens to deny Mr. xxxxxxx a fair trial.

ARGUMENT AND AUTHORITIES

A. Mandatory Severance

Rule 8(a) of the Federal Rules of Criminal Procedure provides as follows:

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are 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.

Here, the two counts involve acts that are nearly two years apart. It is therefore obvious that they are not based on the same act or transaction. The two acts also are not part of any common scheme or plan. The alleged misstatements were made nearly two years apart, far too long to represent parts of the same common scheme. Moreover, the acts are not connected. The I.N.S. Application for Temporary Special Agricultural Worker Form did not lead to any document that was then used when Mr. xxxxxxx applied for a driver's license. Indeed, the 1989 act involved an application for temporary worker status that likely expired long before the driver's license application was filed. There also is no allegation that Mr. xxxxxxx produced any documents at all, much less any temporary agricultural worker documents, when he applied for the driver's license. Count Two merely alleges that Mr. xxxxxxx claimed, in response to a question, that he was a United States citizen.

These incidents also are not of the same or similar character. Claiming to be a United States citizen is not only different--it is a claim directly contrary to a claim of being a non-citizen entitled to employment as a temporary special agricultural worker. The "character" of these representations, made some two years apart, is entirely different, and joinder of the counts is improper.

B. Discretionary Severance

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.

Prejudice to a defendant justifying joinder of offenses may arise whenever (1) the defendant may become embarrassed or confounded in presenting separate offenses, (2) the jury may use the evidence of one crime to infer a criminal disposition of the defendant and find him guilty of the other crime, or (3) the jury may accumulate the evidence of various crimes charged and find guilt when, if considered separately, it would not so find. Any of these situations may serve as a basis for severance of the counts. Fairness demands a severance of counts here. See, e.g., United States v. Lewis, 787 F.2d 1318 (9th Cir. 1986) (admission of other crimes in one count prejudiced defendant on other joined counts, where evidence was weak on second charge). Joinder of the two counts will materially prejudice Mr. xxxxxxx here, for reasons 2 and 3 noted above.

Moreover, where a defendant is charged in more than one count and wishes to testify at trial on certain counts, but does not wish to testify in the other counts, joinder of the counts for trial prejudices the defendant, and a request for severance of the counts should be granted. Cross v. United States, 335 F.2d 987 (D.C. Cir. 1964). Here, Mr. xxxxxxx currently intends to testify on Count Two, but not on Count One. Joinder of the counts will cause him to lose the benefit of remaining silent on Count One.

For the foregoing reasons, defendant requests that the counts brought against him in this indictment be severed for separate trials.

Dated: This ___ day of June, 1995.

Respectfully submitted,

___________________________

GREGORY S. SMITH

ATTORNEYS FOR DARRYL xxxxxxx

STATE BAR NO. 658375

C:\wwwfpd\severct2.wpd