01/29/2010 75 MOTION to Sever Defendant by Darryl Horton. (Waldrop, Thomas) (Entered: 01/29/2010)
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DEFENDANT'S PRELIMINARY MOTION FOR SEVERANCE OF DEFENDANTS AND BRIEF IN SUPPORT
NOW COMES Defendant, DARRYL HORTON, by and through
undersigned counsel, and moves this Court to enter an Order
granting him a separate trial from his codefendants and in
support thereof shows as follows:
(1)
Defendant has been indicted with two others in a multi-count
indictment alleging that he and two codefendants conspired with
each other to commit securities fraud. The indictment also
alleges that the men also committed a substantive scheme to
commit securities fraud and also engaged in wire fraud to advance
the scheme.
(2)
Mr. Horton submits that it is likely that during the course
of this joint trial that mutually antagonistic defenses will be
posited, thus preventing him from receiving a fair trial.
Moreover, the weight of the evidence against his codefendants is
much greater than that which will be adduced against him. While
joinder is favored under Rule 8 of the Federal Rules of Criminal
Procedure, Rule 14 permits a severance of defendants if prejudice
is substantial and cannot be diminished by cautionary
instructions.
(3)
Federal Rule of Criminal Procedure 14(a) provides: “If the
joinder of offenses or of defendants . . . in an indictment . .
. appears to prejudice a defendant or the government, the court
may ... grant a severance of defendants .... or provide any other
relief that justice requires.” The test to be applied for
assessing prejudice is:
Whether under all the circumstances of a particular
case, it is within the capacity of jurors to follow a
court’s limiting instructions and appraise the
independent evidence against a defendant solely on that
defendant’s own conduct in relation to allegations
contained in the indictment and render a fair and
impartial verdict.
United States v. Hersh, 297 F.3d 1233, 1243 (11 Cir. 2002). th
(4)
Defendant Horton maintains that the prejudice which would
attach in a joint trial with his Defendants would be undue and
insurmountable. In short, the jury would not be able to assess
his guilt or innocence strictly on the facts adduced against him.
No standard jury charge or admonition from the trial judge would
remove the taint of prejudice. Mr. Horton is entitled to the
jury’s independent consideration of the evidence as to him on
each charged count. He cannot receive due process if the case
proceeds in a joint trial with his codefendants.
Based on the foregoing, Mr. Horton asks that this Court
entertain his motion to sever his case from that of his
codefendants and grant him leave to supplement this preliminary
motion with additional facts and law.
Respectfully submitted, this 29th day of January, 2010.
Respectfully submitted,
s/ Jake Waldrop
JAKE WALDROP
GEORGIA STATE BAR NO. 731117
ATTORNEY FOR DARRYL HORTON
Federal Defender Program, Inc.
Suite 1700, The Equitable Building
100 Peachtree Street, N.W.
Atlanta, Georgia 30303
(404) 688-7530
Jake_Waldrop@fd.org |
