UNITED STATES DISTRICT COURT

_____________________DISTRICT OF TEXAS

____________________ DIVISION

UNITED STATES OF AMERICA	                 §
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V.	                                                                 §		NO. ___________
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________________________.	                 §	

DEFENDANT'S MOTION TO SEVER
(With Incorporated Memorandum of Law in Support)

TO THE HONORABLE ________________ DISTRICT JUDGE OF THE UNITED STATES DISTRICT COURT FOR THE _____________ DISTRICT OF TEXAS:

	NOW COMES Defendant _________________., by and through his undersigned attorney and files this Motion to Sever and would show this Honorable court as follows:

I	
	Pursuant to Rule 14 of the Federal Rules of Criminal Procedure, __________ moves for a separate trial from his codefendant, ____________,  because a joint trial with _____________. will prejudice ______________ right to a fair trial.  The manner in which a joint trial would prejudice ___________ is more fully set out below:
II
Severance is Authorized by Rule 14

	Severance of joined defendants is authorized by Rule 14 of the Federal Rules of Criminal Procedure, which states:
If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder or trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.  In ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.
	Rule 14 requires severance if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.  Zafiro v. United States, 506 U.S. 534, 539 (1993).  Such a risk might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant. Id. For example, evidence of a codefendant's wrongdoing in some circumstances erroneously could lead a jury to conclude that a defendant was guilty.  Id.
	As set out below, a joint trial with ______________ will prejudice __________.  The Government intends to offer evidence that _____________ has admitted to engaging in the same type of fraudulent conduct in the past as that charged in the current indictment.  The Government has stated its intention to offer this evidence of ____________ prior wrongdoing against both __________ and ___________.  Because it would be inappropriate and highly prejudicial for the jury to consider this evidence of ___________ prior misconduct  against _______________, the Court should grant his request for a separate trial and exclude all references to ___________ prior misconduct. 
III
A Joint Trial will Violate __________ Right to 
a Fair Trial

	Defendant __________ and his codefendant, __________, are each charged individually, under 18 U.S.C. § 1344, with nine counts of bank fraud.  The Government has summarized the allegations as follows: “[T]he defendants borrowed money to finance the manufacture of trailers, sold those trailers, and did not pay the bank the money borrowed against–and collateralized by–those trailers.”  Govt. First Mo. in Limine.  At 1.  This is described in the indictment as selling trailers “out of trust.”  Id.  
	The Government has indicated its intention to offer evidence in this case that shows that __________ (_________ father and codefendant) has on a prior occasion sold financed equipment out of trust, and that ___________ has admitted that he engaged in this conduct on a prior occasion.1  Id.  The Government intends to use this evidence of prior wrongdoing to prove that ___________ and ___________ were engaged in the bank fraud as charged. Id.  The Government has not charged __________ with conspiring with his father in the commission of the fraud, nor has it charged that ____________ aided and abetted his father.  Instead, each man is charged individually with engaging in the same fraudulent conduct.   Therefore, in order to secure a conviction against _________, the Government must prove that he committed each step of the § 1344 offense: That he requested funding from SNB for a trailer unit... and caused said trailer unit to be sold....and received payment for the trailer unit....and retained the funds instead of reimbursing Security National Bank (SNB) and that he did all of those acts with an intent ot defraud SNB.  Indictment at 5.  
	__________________  statement indicating that on a prior occasion he engaged in selling financed equipment out of trust is an admission by a party opponent, and is thus not considered hearsay.   See Fed R. Evid. 801(d) (defining statements which are not hearsay).  While a hearsay objection lodged by ______________ would be properly denied, if _____________ was tried separately, _____________ admissions of prior misconduct would  be inadmissable hearsay.  The Court should grant ________ motion for severance in order to prevent the prejudice that would result from the jury’s consideration of _________ statements.  See Zafiro, 506 U.S. 543, 539 (severance proper when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant).
	The Government also asserts that the evidence of _____________ prior acts of selling out of trust is admissible under Federal Rule of Evidence 404(b), in order to negate any assertion of lack of criminal intent or claim of accident or mistake.  Govt. Mo. in Limine at 2.  Evidence of _____________ prior involvement in selling collateral out of trust might be admissible to refute any claim he lacked the requisite criminal intent to defraud  SNB.  Such evidence is not probative of _____________ criminal intent.   In a joint trial, it is unlikely that ______________ could prevent the jury from considering this evidence.2  Because of the prejudicial effect to _________________ which would result  from the admission of evidence of his father’s prior conduct of selling collateral out of trust, the Court should grant his motion for severance.  See Zafiro, 506 U.S. 534, 539 (severance might be proper where evidence of a codefendant's wrongdoing could erroneously lead a jury to conclude that defendant was guilty).

IV

A Joint Trial Will Hamper _________________’s Right to Remain Silent and His Right To Confront Witnesses Against Him.

	In addition to the possible prejudice resulting from the admission of hearsay and 404(b) evidence against Mr. _________________, a joint trial of this cause will hamper his fundamental right to remain silent. The United States Constitution has been interpreted to prohibit any comment on the failure of a criminal defendant to testify. Griffin v. California, 380 U.S. 609 (1965).  However, courts also recognize that if one defendant testifies at trial, but the other codefendants do not, counsel for the testifying defendant has the absolute right to comment on the codefendants’ failure to testify. Thus, if _________________, testifies, his  right to comment is inconsistent with _____________ right to remain silent. For this reason a joint trial will prejudice ______________ right to a fundamentally fair trial by hampering his right to remain silent. 
	This exact problem was recognized in De Luna v. United States, 308 F.2d 140 (5th Cir.1962). Defendant De Luna and defendant Gomez were tried together on narcotics charges. Defendant Gomez testified in his own defense. Defendant De Luna did not. In closing argument, counsel for Gomez forcefully argued the fact that De Luna did not testify. The jury acquitted Gomez and convicted De Luna. On appeal, De Luna’s conviction was reversed. The appellate Court noted that Gomez had an absolute right to comment in closing argument concerning De Luna’s assertion of his right to remain silent. The Court, in noting that the conflicting interests of defendant Gomez and defendant De Luna created a dilemma that could only have been resolved by trying them separately, stated: “Thus, the joint trial of the two defendants put Justice to the task of simultaneously facing in opposite directions. And Justice is not Janus- faced ...  In short, for each of the defendants to see the face of Justice, they must be tried separately.”  308 F.2d 140, 142, 155.
	A joint trial will also prejudice _________________’s right to a fair trial by infringing upon his right to confront the witnesses against him.  It is highly likely in this case that one or more of, _____________ statements will be offered into evidence in the trial.  While codefendants’ confessions are admissible against them, see Fed. R. Evid. 801(d)(2)(A), any admission implicating _________________ would violate his rights under the Confrontation Clause should _______________ choose not to testify at trial. Bruton v. United States, 391 U.S. 123 (1968).  Because a joint trial would hamper _________________’s fundamental right under the Sixth Amendment to confront witness against him, a severance should be granted in this case.
		  WHEREFORE, _________________ prays that he be severed from his co-defendant, ________________ and be granted a separate trial on the indictment in which he is charged.

V
Conclusion
	Under such circumstances, the wisest course of action is to grant a severance before trial.  Defendant _________________’s Fifth Amendment rights to a fundamentally fair trial and to remain silent and his Sixth Amendment right to confront witnesses against him would be prejudicially hampered by a joint trial in this case.
Prayer
	WHEREFORE, premises considered, Defendant __________________ prays that the Court issue an Order severing his case from that of Defendant _______________,  and ordering a separate trial.
						Respectfully submitted.

						Attorney for Defendant

CERTIFICATE OF SERVICE

	I certify that I served a copy of the foregoing Defendant’s Motion to Sever and Memorandum in Support of Defendant’s Motion to Sever on Johnny Sutton, United States Attorney for the Western District of Texas (ATTN: Assistant United States Attorney Bud Paulissen), by mailing it to his office at 601 N.W. Loop 410, Suite 600, San Antonio, Texas 78216, on August 6, 2002.

						Attorney for Defendant		

UNITED STATES DISTRICT COURT

 __________________ DISTRICT OF TEXAS

__________________ DIVISION

UNITED STATES OF AMERICA	                 §
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V.	                                                                 §		NO.
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_________________	                                         §	
O R D E R

	On this date came on to be considered the Defendant _________________ Motion to Sever, and having considered same, the Court finds that Defendant _________________ would suffer prejudice if his case were tried with that of his co-defendant.  Such prejudice can best be avoided by a severance, and Defendant’s Motion to Sever is therefore GRANTED.
	It is therefore ORDERED that the case of United States of America v. ______________________. is hereby severed from the case of United States of America v. ______________________., and shall be tried at a different time.
	So ORDERED on this the             day of                              , 20_____.

						
						United States District Judge