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March 17, 1982

Robert C. LEWIS, James E. Boardley, Tommy M. Motlagh, also known as Tommy Motley, Defendants.

The opinion of the court was delivered by: RICHEY


The Court has before it a motion to sever on behalf of defendants Lewis and Boardley, *fn1" ("defendants") pursuant to Rule 14 of the Federal Rules of Criminal Procedure and the Government's opposition thereto. In their motion, the defendants contend that the jury should not hear the strongly incriminatory declarations by defendant Motlagh that are admissible only against him. Specifically, the defendants challenge the testimony of Mr. Nasser Zolfaghari, an aquaintance of defendant Motlagh. During the grand jury proceedings in this case, Mr. Zolfaghari testified that on February 18, 1981, he happened to encounter defendant Motlagh at the Resorts International Hotel in Atlantic City, New Jersey. Mr. Zolfaghari testified that defendant Motlagh was very upset because his "partners" Lewis and Boardley had "messed up" and that he was in a lot of trouble. (Zolfaghari Oct. 14, 1981 Transcript ("Tr.") at 19-21). Mr. Zolfaghari also makes reference through his testimony that the defendant Motlagh could have problems taken care of through Lewis and Boardley because they were partners in the liquor store venture. (Tr. at 7, 11-16). *fn2"

  While it is clear that these hearsay statements are admissible against the defendant Motlagh, the defendants Lewis and Boardley contend that severance is mandated for to admit such statements would violate their Sixth Amendment rights, as this case falls squarely within the rule articulated by the Supreme Court in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). In Bruton :


A joint trial of petitioner and one Evans in the District Court for the Eastern District of Missouri resulted in the conviction of both by a jury on a federal charge of armed postal robbery, 18 U.S.C. ยง 2114. A postal inspector testified that Evans orally confessed to him that Evans and petitioner committed the armed robbery. The postal inspector obtained the oral confession, and another in which Evans admitted he had an accomplice whom he would not name, in the course of two interrogations of Evans at the city jail in St. Louis, Missouri, where Evans was held in custody on state criminal charges.

 391 U.S. at 124, 88 S. Ct. at 1621.

 The petitioner was convicted, which was affirmed on appeal, despite the fact that "the trial judge instructed the jury that although Evans' confession was competent evidence against Evans it was inadmissible hearsay against petitioner and therefore had to be disregarded in determining petitioner's guilt or innocence. Id. at 125, 88 S. Ct. at 1622. The Supreme Court reversed, holding that the petitioner was substantially prejudiced by the admission of the statement, despite the trial judge's instruction to the jury to disregard the statement as to the petitioner. Additionally, the Court held that the use of Evans' confession violated the petitioner's right of cross-examination as secured by the Sixth Amendment. As the Supreme Court indicated:


We still adhere to the rule that an accused is entitled to confrontation of the witnesses against him and the right to cross-examine them.... We destroy the age-old rule which in the past has been regarded as a fundamental principle of our jurisprudence by a legalistic formula, required of the judge that the jury may not consider any admission against any party who did not join in them. We secure greater speed, economy and convenience in the administration of the law at the price of fundamental principles of constitutional liberty. That price is too high.

 Id. at 134-35, 88 S. Ct. at 1626-27.

 The same situation exists in the present case. The Government further contends that whatever impact these statements may have on the defendant Motlagh, the statements are not "powerfully incriminating" against either defendant Lewis or Boardley. The Government contends that by competent evidence, both defendants Lewis and Boardley have already incriminated themselves. (Gov't March 12, 1982 Opp. at 3.) At the March 12, 1982 hearing, the Government attempted to distinguish the difference between the present case and Bruton, wherein the Government stated:


In our papers, we made a review, not a thorough one-perhaps the lateness of the hour prohibited us in some respect on that-but we tried to make a thorough review of just some of the highlights of the evidence against Mr. Lewis, and we summarized that.


Similarly, Your Honor, against Mr. Boardley there are-suffice it to say Your Honor has listened to the tapes-just on the tapes alone, there are powerfully incriminating statements of Mr. Boardley that are competent evidence to be introduced before the jury. Likewise, there are powerfully incriminating statements of Mr. Lewis that will be introduced before the jury as competent evidence.


There are also, Your Honor, as we have tried to point out with respect to Mr. Lewis, certain actions he took, and there are likewise actions that Mr. Boardley took, with respect to obtaining the ABC license for Mr. Briggs, who is charged in the indictment, with respect to scheduling hearings, with respect to a number of different things, that incriminate, that inculpate, Mr. Boardley on the one hand and Mr. Lewis on the other that put them together in the partnership.


Indeed, these facts, in and of themselves, we think, distinguish this case entirely from Bruton where there was no such other competent evidence that was going against Bruton.

 March 12, 1982 Tr. at 14-15.

 On its face, it appears as if the Government seeks to have this Court make a preliminary determination of guilt based on the evidence presently before it. Yet, the Government itself readily admits that such a determination rests solely in the hands of the twelve jurors. (Tr. at 12.) Moreover, Mr. Lewis readily admits that the tapes present a problem, yet is prepared to deal with it wherein his counsel, Mr. Watkins, states:


The fact that Lewis has made those statements is something that we can deal with. Mr. Lewis welcomes the opportunity to take the stand in front of a jury and defend or explain or do whatever he has to do with those statements. And we will do that at trial, I say that to you right here.

 Tr. at 24.

 Mr. Watkins reiterated his position later in the proceedings wherein he stated:


Your Honor, I hate to belabor this but there is just one thing that I would like to respond to Mr. Beizer said, referring to my client, "They cannot deal with the statements that come out of their own mouths," talking about the statements on the tape recording.


Your Honor, I contend that we can, and I am willing to do that at trial but I am not willing, and I do not think I am required to, to deal with the statements that come out of Motlagh's mouth that are not admissible against my client, and that is what Bruton is about.


That is why I say, Your Honor, we have to have a severance.

 Tr. 35-36.

 The Court is thus faced with a problem of: What if the defendants Lewis and Boardley are successful in their defense without the statements in question? If the statements are admitted at the trial and the defendants are convicted, the Court will never know if the convictions are the result of the hearsay statements. This Court, as the Supreme Court did in Bruton, finds the price is too high to admit the statements in question where the defendants are denied the right to cross-examine the defendant Motlagh. *fn3"

 Accordingly, the statements in question will not be admitted against either defendant Lewis or defendant Boardley.

 The Court is now faced with the problem of how to proceed with the mode of trial in this complex criminal matter.

 Preliminarily, the Court rejects the Government's contention that appropriate limiting instructions will properly restrict the jury's use of Zolfaghari's testimony to the defendant Motlagh alone. (Gov't Opp. at 5-6). The Court of Appeals for this Circuit in Sims v. United States, 132 U.S. App. D.C. 111, 405 F.2d 1381, 1382-3 (D.C.Cir.1968) articulated the dangers of such prejudicial joinder wherein it held that "Bruton v. United States clearly shows the hollowness of such cautionary instructions and illuminates the charade of pretending that the jury can put out of its mind damaging evidence it has just heard...." The Court finds this approach especially appropriate where the Government admits that all of Mr. Zolfaghari's statements, including the pre-February 18-19, 1981 admissions and the February 18-19, 1981 admissions themselves are inadmissible against defendants Lewis and Boardley. (Gov't Opp. at 1).

 Though the Court has determined that the statements in question cannot be admitted against the defendants Lewis and Boardley, the Court will not sever the defendant Motlagh for a separate trial. *fn4" Thus in order to hold a joint trial, while preventing the statements in question to be admitted against defendants Lewis and Boardley, the Court will empanel two juries. The first jury will be empaneled to hear the case against defendants Lewis and Boardley. The second jury will be empaneled to hear the case against defendant Motlagh. Though this is an innovative technique, the Court finds the use of the two juries to be the best way to expedite this case consistent with the ends of justice.

 As this Court set out at the March 15, 1982 status call, the procedure to be implemented at this trial will be as follows:

 1. The defendants Lewis and Boardley will select a jury of twelve persons with five alternates on March 17, 1982. The defendants will have thirteen peremptory challenges for the twelve-person jury and the Government will have six. There will only be three peremptory challenges combined for the 5 alternates.

 2. The defendant Motlagh will then select a jury of twelve persons with five alternates on the same date. The defendant Motlagh shall have ten peremptory challenges and the Government six. Again, both sides will share three peremptory challenges against the five alternates.

  3. Once both juries have been selected, they will be dismissed until Thursday morning, March 18, 1982, at which time the juries will be sworn in. The remainder of March 17, 1982, will be devoted to the remaining outstanding motions.

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