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Case 5:17-cr-00380-DAE Document 51 Filed 02/23/18 Page 1 of 9

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

UNITED STATES OF AMERICA §


§
§
vs. § CASE NO. 5:17-CR-380
§
VERNON FARTHING, III §

MOTION TO SEVER

TO THE HONORABLE DAVID ALAN EZRA, UNITED STATES DISTRICT


JUDGE FOR THE WESTERN DISTRICT OF TEXAS, SAN ANTONIO
DIVISION:

COMES NOW, defendant VERNON FARTHING, III, by and through

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:

Fed. R. Crim. P. 14 permits a District Court to grant a severance of defendants

if a defendant is prejudicially joined with another co-defendant. Zafiro v. United

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).

However, a defendant is not confined to those three examples promulgated by the

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).

SPECIFIC TRIAL RIGHTS

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

joinder with Mr. Uresti.

RIGHT TO REMAIN SILENT

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

criminal defendant to testify. Griffin v. California, 380 U.S. 609 (1965).

Notwithstanding this constitutional protection, Courts have recognized that if one

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

order to preserve Farthing’s constitutional right to remain silent.

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

prosecution, biases against the defendant, a motivation to lie (e.g., a witness’s

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);

Davis v. Alaska, 415 U.S. 308 (1974).

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

to testify. Mr. Farthing will be deprived of the opportunity to cross-examine Mr.

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

under Zafiro has been satisfied.

RIGHT TO FAIR TRIAL

Moreover, Mr. Farthing will be prejudiced by the substantial 404(b) evidence

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

appellant’s suffered prejudice because of highly inflammatory spillover evidence].

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

(6th Cir. 1995).

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

Breinig’s credibility was in issue, the jury’s consideration of categorically

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

States v. Breinig, 70 F.3d 850, 853 (6th Cir. 1995).

Like the Government in Breinig, the Government here would experience an

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

discovery and the defense’s investigation or to put on evidence during a hearing on

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

WHEREFORE PREMISES, CONSIDERED, the Defendant

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

Attorneys for Defendant,


VERNON FARTHING III

*Lead Counsel

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and foregoing has been electronically

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delivered to Assistant United States Attorney Joseph E. Blackwell as a registered

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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UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

UNITED STATES OF AMERICA §


§
§
VS. § CASE NO. 5:17-CR-380
§
VERNON FARTHING, III §

ORDER

On this the _________ day of ___________________, 2018, came to be

considered the Defendant’s Motion for Severance, and the Court having considered

the same, hereby orders this motion:

(GRANTED) (DENIED)

____________________________________

UNITED STATES DISTRICT JUDGE

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