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MOTION TO SEVER
undersigned counsel, hereby files this motion to sever, pursuant to Fed. R. Crim. P.
14, and in support of the same would show this Honorable Court the following:
States, 506 U.S. 534, 535 (1993). The Supreme Court has stated, “a district court
should grant a severance under Fed. R. Crim. P. 14 only if there is a serious risk that
a joint trial would compromise a specific trial right of one of the defendants….”
Zafiro v. United States, 506 U.S. 534, 539 (1993); See United States v. Nguyen, 493
F.3d 613, 625 (5th Cir. 2007); The Court gives three examples1 to show how a risk
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“For example, evidence of a codefendant’s wrongdoing in some circumstances erroneously could lead a
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of prejudice “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.” Zafiro v. United States, 506 U.S. 534, 539 (1993).
Zafiro Court. The ultimate rubric is whether the joinder infringes on a specific trial
right. See Zafiro v. United States, 506 U.S. 534, 539 (1993).
A joint trial of Mr. Farthing and Mr. Uresti poses a “serious risk” that the
specific trial rights of at least one, if not both, of the defendants will be violated by
the co-defendant’s prejudicial joinder. Zafiro v. United States, 506 U.S. 534, 539
(1993). At least three of Mr. Farthing’s specific trial rights will be violated by his
The right to remain silent is a specific trial right that will be prejudiced by Mr.
Uresti’s joinder with Mr. Farthing. It is axiomatic that a Defendant has a right to
remain silent during trial. Griffin v. California, 380 U.S. 609 (1965); U.S. CONST.
AMEND. V. A joint trial will hamper Mr. Farthing’s right to remain silent. The United
jury to conclude that a defendant was guilty.” Zafiro v. United States, 506 U.S. 534, 539 (1993). “When
many defendants are tried together in a complex case and they have markedly different degrees of
culpability, this risk of prejudice is heightened.” Zafiro v. United States, 506 U.S. 534, 539 (1993)
(referencing Kotteakos v. United States, 328 U.S. 750, 774-775 (1946). “Evidence that is probative of a
defendant’s guilt but technically admissible only against a codefendant also might present a risk of
prejudice.” Zafiro v. United States, 506 U.S. 534, 539 (citing Bruton v. United States, 391 U.S. 123 (1968)).
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States Constitution has been interpreted to prohibit any comment on the failure of a
defendant testifies at trial, but the other codefendant does not, counsel for the
testifying defendant has the absolute right to comment on the codefendant’s failure
to testify. See De Luna v. United States, 308 F.2d 140 (5th Cir. 1962). Thus if Mr.
Uresti, testifies2, his right to comment on Mr. Farthing’s silence is inconsistent with
Mr. Farthing’s right to remain silent. This alone sustains Mr. Farthing’s burden
under the Zafiro standard, Farthing’s specific trial right, the right to remain silent
will be prejudiced by his joinder with Mr. Uresti. A severance should be granted in
RIGHT TO CONFRONTATION
The Confrontation Clause of the Sixth Amendment states that, “[i]n all
criminal prosecutions, the accused shall enjoy the right to…be confronted with the
witnesses against him.” U.S. CONST. AMEND. VI. A defendant’s right to cross-
examine, with the opportunity to impeach, an adverse witness “is the main and
essential purpose” of the Confrontation Clause. Delaware v. Van Arsdall, 475 U.S.
673, 678 (1986). A criminal defendant has a right within reasonable limits to cross-
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Or vice versa, if Farthing testifies and Uresti does not, Farthing’s counsel could comment on Uresti’s silence,
infringing on his constitutional right to remain silent. Under Zafiro, if the joinder prejudices the specific trial right of
“one of the defendants” the standard is met. United States v. Zafiro, 506 U.S. 534, 539 (1993). Joinder here would
violate both defendants’ specific trial right to remain silent.
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examine an adverse witness concerning matters that could reveal biases for the
expectation that in exchange for his testimony, the prosecution will dismiss pending
charges against him), or matters that call into question the credibility of the witness
(e.g., prior inconsistent statements that the witness gave.) Delaware v. Van Arsdall,
475 U.S. 673, 678-79 (1986); see also Olden v. Kentucky, 488 U.S. 227 (1988);
It is highly likely that one or more of Mr. Uresti’s statements will be offered
into evidence during the trial. Codefendants’ admissions are admissible against that
co-defendant during trial. See Fed. R. Evid. 801(d)(2)(A). Any admission by Uresti
implicating Mr. Farthing would violate Farthing’s rights under the Confrontation
Clause should Mr. Uresti choose not to testify at trial. Bruton v. United States, 391
U.S. 123 (1928). As a defendant in a criminal case, Mr. Uresti cannot be compelled
Uresti. Because a joint trial would hamper Mr. Farthing’s specific trial right, to
confront witness against him, a severance should be granted in this case. The burden
that will be admitted against Mr. Uresti. See Sealed Exhibit to 404(b) Notice filed
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by Government in Cause No. 5:17-cr-381 [dkt. 100-2]; See also United States v.
Cortinas, 142 F.3d 242, 248 (5th Cir. 1998) [reversing convictions because the trial
court’s failure to grant a motion for severance under Fed. R. Crim. P. 14 where
Mr. Uresti has been convicted of eleven counts, including wire fraud, conspiracy to
commit mail fraud, money laundering and selling securities without a license. Uresti
has been accused of sexual harassment, extramarital affairs and drug use. Mr.
Farthing has no criminal history, what so ever and has not been accused of
wrongdoing. In United States v. Breinig, 70 F.3d 850 (6th Cir. 1995), a defendant
was deprived of Due Process of law under the Fifth Amendment, when his motion
for severance was denied by the Trial Court. In Breining, “evidence that was
admitted to support Moore’s [the other co-defendant] theory of the case, and which
the jury was properly permitted to consider, was at the same time highly prejudicial
evidence of Breinig’s bad character. This evidence would have been inadmissible
against Breinig had he been tried alone.” United States v. Breinig, 70 F.3d 850, 852
Mr. Uresti’s alleged bad acts and conviction would be admissible against him
but not against Mr. Farthing, in Breinig, the Sixth Circuit reversed, “[b]ecause
inadmissible evidence was manifestly prejudicial, and unfairly so. It provided the
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government with an unfair windfall that the rules of evidence and elemental notions
of fairness would otherwise not allow, and that Rule 8(b) does not envision.” United
unfair windfall that the Rules of Evidence and elemental notions of fairness would
not allow. There is substantial prejudicial evidence that would be admissible against
Mr. Uresti, that would not otherwise be admissible in separate trial against Mr.
Farthing.
ADDITIONAL MATTERS
Mr. Farthing reserves the right to submit additional briefing after completing
this motion to show if any antagonistic defenses warrant severance, whether Mr.
Farthing’s affidavit showing that he would testify in Uresti’s separate trial but not in
a joint trial and Mr. Uresti’s affidavit showing that he would testify in Farthing’s
separate trial but not in a joint trial provide additional reasons that a severance should
be granted.
PRAYER
respectfully prays, this Honorable Court grant this motion and order separate trials
for Mr. Farthing and Mr. Uresti because Mr. Farthing’s right to remain silent, right
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to confront witnesses, and right to a fair trial will be prejudiced if the Defendants are
tried together.
Respectfully Submitted,
By:__/s/Cynthia E. Orr___
Cynthia E. Orr
Cynthia E. Orr*
Bar No. 15313350
Gerald H. Goldstein
Bar No. 08101000
John T. Hunter
Bar No. 24077532
Abasi D. Major
Bar No. 24096504
GOLDSTEIN, GOLDSTEIN, HILLEY & ORR
310 S. St. Mary’s St.
29th Fl., Tower Life Bldg.
San Antonio, Texas 78205
210-226-1463
210-226-8367 facsimile
Email: whitecollarlaw@gmail.com
Email: ggandh@aol.com
Email: jth753@gmail.com
Email: abasi.major@gmail.com
*Lead Counsel
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing has been electronically
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participant of the CM/ECF document filing system, on this the 23rd day of February
2018.
By:___/s/Cynthia E. Orr_____
Cynthia E. Orr
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ORDER
considered the Defendant’s Motion for Severance, and the Court having considered
(GRANTED) (DENIED)
____________________________________