BARRY J

BARRY J. PORTMAN

Federal Public Defender

JOHN PAUL REICHMUTH

Assistant Federal Public Defender

450 Golden Gate Avenue

San Francisco, CA 94102

Telephone: (415) 436-7700

Counsel for Defendant XXXXX

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

JOSE XXXXX,

Defendants.

)

No. CR 00-0000 ABC

JOSE XXXXX= REPLY TO GOVERNMENT=S OPPOSITION TO MOTION FOR RELIEF FROM PREJUDICIAL JOINDER

Honorable William H. Alsup

June 19, 2001

2:00 p.m.

Primarily, the court should sever the tenuously connected immigration case from the gun counts. Rule 14 permits severance when Ait appears that a defendant or the government is prejudiced by joinder of offenses . . . .@ Fed. R. Crim. P. 14. The defendant need not show, at the district court level, that a joint trial would be manifestly prejudicial, but if he does, it is reversible error to deny severance. Lewis, 787 F.2d at 1321, as amended, 798 F.2d 1250. The government wishes away the clear danger of prejudice in this case, suggesting that two firearms charges can be tried with an illegal reentry case and proposing alternatives to severance, such as cautionary instructions and bifurcation of the prior felony element. These solutions fail to deal with the crux of the problem, exposure of the jury to charges of unrelated criminal acts.^[1] Even with bifurcation of the felony element, the jury will be aware of a charge of gun possession as it considers an immigration case, and it will be aware of an immigration charge as it considers the gun case. Thus, even if the prior crime can be minimized,^[2] the present allegations must be separated in order to control the well-recognized danger of Aother acts@ evidence. In the case of United States v. Lewis, 787 F.2d 1318 (9th Cir.), as amended, 798 F.2d 1250 (1986), the United States Court of Appeals for the Ninth Circuit, in reversing a conviction based on prejudicial joinder, observed Aa high risk of undue prejudice whenever . . . joinder of counts allows evidence of other crimes to be introduced in a trial of charges with respect to which the evidence would be inadmissible.@ Id. at 1318 (quoting United States v. Daniels, 770 F.2d 1111, 1116 (D.C.Cir. 1985)). Gun possession would not be independently admissible in the illegal reentry case, and illegal reentry following deportation would not be admissible in the gun case.

It would be manifestly prejudicial to join the counts in this case, because, inter alia, the government has apparently no witnesses to the defendant=s deportation. A memorandum in the A-file produced to the defense in discovery states, AThe file contains information that the alien departed the San Francisco detention Unit under Order of Deportation. However, verification of the deportation has not been received. A careful search has been made for the missing document without results . . . It is assumed that the Subject was met and has been deported from the United States.@ C. Hemphill D/O SFR, Memorandum To File, February 23, 2000 (Exhibit A). Allowing the jury considering this admission to be tainted by evidence of gun possession would be highly unfair. On this basis alone, the immigration count should become a separate case^[3].

Under Rule 14, the two multiplicitous firearms counts should also be severed from each other. The government failed to respond to the defense suggestion that the firearms counts are multiplicitous and one of them should be dismissed if severance is not granted. The defendant can not be punished for being both a felon in possession and an alien in possession of a firearm. See United States v. Keen, 104 F.3d 1111, 1118-20 (9th Cir. 1997) (separate counts under ' 922(g) for possession of firearm and ammunition are multiplicitous); United States v. Munoz-Romo, 989 F.2d 757, 758-59 (5th Cir. 1993) (separate counts under ' 922(g) for felon in possession and illegal alien in possession are multiplicitous); see also United States v. Dunford, 148 F.3d 385, 388-90 (4th Cir. 1998) (separate counts under ' 922(g) for felon in possession and drug user in possession of a firearm and of ammunition are all multiplicitous). Given this legal premise, prejudice to the defendant is one of the only advantages the government gains from the simultaneous filing of multiplicitous charges. That should not be countenanced. It is silly to file multiplicitous charges and simultaneously carry the banner of judicial efficiency. It is understandable, though, as it gives the government the opportunity to cast the defendant as a doubly prohibited person and enhance each charge with the prejudice of the other. These counts should be severed. If not, as the government appears to admit by omission, a firearm count should be dismissed.

II. Rule 8(a): The Immigration and Gun Possession Counts Are Misjoined and Should be Severed.

The government makes the best argument for misjoinder when it concedes on page 4 of its opposition that the overlapping elements of prior felony and prior aggravated felony, found in section 922(g) and section 1326, respectively, Adoes not rise to the level of same act of (sic) transaction . . . .@ United States Opposition to Defendant=s Motion for relief From Prejudicial Joinder at 4. If the felony prior does not rise to that level, why does alienage? Neither the prior nor alienage is an act or transaction. They are matters of status, not even of mens rea. They contain an evidentiary overlap, but the offenses of gun possession and entry into the country are as diverse as any two crimes in the federal code. Rule 8 permits two or more offenses to be charged in the same indictment only where the charges Aare of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." Fed.R.Crim.P. 8(a).

Clearly, nothing in the indictment suggests that the alleged reentry and gun possession constitute a common scheme or plan. They are not of similar character, such as alien smuggling and drug smuggling. Though alleged to have occurred on the same date, they will likely be supported by different witnesses, the INS officials who claim to have Afound@ the defendant on November 18, 2000, and city police officers who allegedly witnessed firearm possession on that date. The temporal commonality is of little use. Thus, all must concede that the only thing these offenses have in common is insubstantial evidentiary overlap, that of issues of status: criminal history and alienage, not much different from identity itself. The logical conclusion of the government=s position is that any offense by an alien may be joined with any other, and any offense requiring proof of a prior may be joined with any other. This is untenable. The illegal reentry charge should be severed from the gun counts under Rule 8(a), Federal Rules of Criminal Procedure.

III. CONCLUSION

For the aforementioned reasons, the Court should grant Mr. XXXXX= motion for severance of counts one through three of the indictment.

Dated: June 12, 2001

Respectfully submitted,

BARRY J. PORTMAN

Federal Public Defender

JOHN PAUL REICHMUTH

Assistant Federal Public Defender

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this day, he did deliver to Lisa Tenorio, AUSA, a copy of Defendant XXXXX=

REPLY TO GOVERNMENT=S OPPOSITION TO MOTION FOR RELIEF FROM PREJUDICIAL JOINDER

June 12, 2001 _______________________________________

JOHN PAUL REICHMUTH

ASSISTANT FEDERAL PUBLIC DEFENDER

^[1]The notion of a cautionary instruction in the context of character evidence is something of a fiction which is to Aask human beings to act with a measure of dispassion and exactitude well beyond mortal capacities.@ Lewis, 787 F.2d at 1323. Severance is Athe preferred alternative.@ United States v. Nguyen, 88 F.3d 812, 818 (9th Cir. 1996).

^[2]To counsel=s knowledge, the government=s unsupported reference to a conviction for forcible oral copulation in concert is actually untrue. The government=s error does provide an interesting exercise in the assessment of prior bad acts evidence. The defense moves that that portion of the government=s filing be struck, to assure that future readers are not tainted by such a supremely damaging allegation.

^[3]The defendant remains silent and maintains a plea of not guilty as to the merits of the firearms counts, awaiting the government=s proof. A comment on the merits of the gun case could be made, under order, in camera and ex parte.