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UNITED STATES v. LEWIS
March 17, 1982
UNITED STATES of America
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,
("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).
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. § 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:
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 ...
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