UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

UNITED STATES OF AMERICA §

v. § xxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxx. §

MOTION TO SUBSTITUTE AND MOTION FOR LINE-UP

AND TO PRECLUDE WITNESSES FROM VIEWING

THE DEFENDANT AT COUNSEL TABLE AND BRIEF

COMES NOW, defendant and moves the court as follows:

The defendant anticipates a witness, xxxxxxxxxxxx, will be called by the Government to identify xxxxxxxxxxxxxx as a person who participated in a conspiracy.

II.

From pretrial discovery it appears that Mr. xxxxxx claims to have met with Mr. xxxxxx one time more than four years ago and then only for a brief period of time. There is no indication in the materials shown counsel for the accused that Mr. xxxxxx gave a description of the Defendant. The Defendant is concerned about the suggestiveness of an in-court identification.

III.

In United States v Archibald, 734 F.2d 938 (2nd Cir., 1984), the Court stated that a trial court has a duty to reduce the suggestiveness of an in-court identification and an obligation to insure that the in-court procedure...did not simply amount to a "show up." Id., at 941.

IV.

The Court adopted the ruling in United States v Brown, 699 F.2d 585 (2nd Cir. 1983): `when a defendant is sufficiently aware in advance that identification testimony will be presented at trial and fears irreparable suggestivity, as was the case here, his remedy is to move for a line-up order to assure that the identification witness will first view the suspect with others of like description rather than in the courtroom sitting alone at the defense table.'V.

To allow a witness to view the accused alone at counsel table, for purposes of identification, is incredibly suggestive. No line-up would be conducted in such a fashion.

VI.

Due process and Due course of Law as guaranteed by the 14th Amendment to the U.S. Constitution and Article I Section 19 of the Texas Constitution require this Motion be granted.

VII.

WHEREFORE, defendant requests that the accused not be required to sit at counsel table, and that a line-up be conducted, and to prohibit the witnesses from viewing the defendant in any circumstance which indicates he is the person the government accuses of having committed this crime, and that some other person of counsel's choosing be allowed to sit at counsel table.

Respectfully submitted,

IRA R. KIRKENDOLL

Federal Public Defender

Northern District of Texas

BY:

PETER FLEURY

600 Texas, Suite 100

Fort Worth, TX 76102

(817) 334-2753

FTS 334-2753

Texas State Bar No. 07145600

CERTIFICATE OF CONFERENCE

I hereby certify that I, Peter Fleury, attorney for defendant, did confer with Frank Able, the Assistant United States Attorney assigned to this matter, and he opposes the filing of this motion.

PETER FLEURY

CERTIFICATE OF SERVICE

I, Peter Fleury, hereby certify that on this the day of February, 1994, a copy of the foregoing motion was hand delivered to the United States Attorney's office at 310 U.S. Courthouse, Fort Worth, Texas 76102.

PETER FLEURY

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

UNITED STATES OF AMERICA §

v. § xxxxxxxxxxxxxxxx

CHARLES xxxxxx, JR. §

ORDER

Considering the foregoing Motion to Substitute and Motion for Line-up and to Preclude Witnesses from Viewing the Defendant at Counsel Table of defendant CHARLES xxxxxx, JR.,

IT IS ORDERED that the defendant's motion is hereby granted.

Fort Worth, Texas, this _____ day of February, 1994.

______________________________

JOHN H. McBRYDE

UNITED STATES DISTRICT JUDGE

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