IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
: Cr. No. xx-375 (PLF) :
v. : :
:
xxxxxxxxxxxxxxxxxxxx, :
:
:
Defendant. :
DEFENDANT'S REPLY TO GOVERNMENT'S
OPPOSITION TO DEFENDANT'S
MOTION FOR NEW TRIAL
Defendant Tyrone xxxxxxxxxxxx, through undersigned counsel,respectfully replies to the
government's opposition to defendant's motion for new trial, as follows:
1. The government contends that Mr. xxxxxxxxxxxx cannot rely upon Mr. xxxxx's availability as a witness to support a motion for new trial. However, the rule the government cites in support of its contention applies to co-defendants who attempt to exonerate one of their cohorts. The rule prevents a co-defendant from invoking his Fifth Amendment privilege at trial, and then coming forward to exonerate a co-participant in his crime once he is either acquitted or convicted. The courts citing the rule rely upon the fact that at the point he comes forward, the affiant has nothing to lose by giving the exculpatory testimony on the defendant's behalf. The purpose of the rule is to prevent a fraud upon the court by the offering of false exculpatory testimony by a cohort whose situation cannot be made worse by the testimony.(1)
2. The rule cited by the government should not apply in this situation, because Mr. Riddick is not a co-conspirator of Mr. xxxxxxxxxxxx, nor was he a co-defendant. He is a witness with crucial information which, if believed, would exculpate Mr. xxxxxxxxxxxx. Where witnesses, rather than co-defendants, are offering testimony which was previously unavailable to the defendant, courts have not employed the rule on which the government relies. See, United States v. Garland, 991 F.2d 328, 335 (6th Cir. 1993); United States v. Ouimette, 798 F.2d 45, 51-52 (2d, Cir. 1986).
3. In the instant case, Mr. Riddick would be as vulnerable to prosecution if he testified at the hearing on Mr. xxxxxxxxxxxx's new trial motion as he would have been had he testified at trial. If his written statement which was introduced at trial and his letter to the court are credited, Mr. Riddick is the one who is culpable in the offense at issue and Mr. xxxxxxxxxxxx is not guilty. This case should be governed by the rule that the credible confession of another to the commission of a crime for which an accused has been convicted is sufficient ground for a new trial. See, United States v. DeBinder, 303 F.2d 203 (D.C. 1962); United States v. Amos, 218 F.2d 44 (D.C. 1954); Casias v. United States, 337 F.2d 354 (10th Cir. 1964).
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
CERTIFICATE OF SERVICE
I certify that I have served a copy of the foregoing Reply to Government's Opposition to Defendant's Motion for New Trial upon Sima Sarrafan, Esq., Assistant U. S. Attorney, by mailing a copy to her at her offices at 555 4th Street, N.W., Washington, D. C., and by faxing a copy to that same address, this 19th day of February, 1998.
_______________________
Reita Pendry
1. One circuit has declined to follow the rule. See, United States v. Montilla-Rivera, 115 F.3d 1060, 1064-66 (1st Cir. 1997).