contraband in plain view had been seized earlier and (3) the fact that Mr. Hamilton consented to a search of the apartment. Because the Court has determined that Hamilton's consent was the product of his illegal arrest, this consent must be excluded as the basis on which a search warrant would issue. The Court finds, however, that the two remaining factors would adequately support the issuance of a search warrant. Therefore, the warrant was validly issued and the evidence found pursuant to the search of the apartment is admissible.
E. HAMILTON'S MOTION FOR SEVERANCE
Hamilton has moved to sever the trials of the defendants in this case based on the fact that Henry would, in a severed trial, provide exculpatory testimony for Hamilton. If the trials are not severed, however, the privilege against self-incrimination would prevent Henry from providing this testimony.
Federal R. Crim. P. 8(b) provides that joinder of defendants for trial is proper when the defendants are "alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense." The trial judge has discretion to permit severance, but the balance is to be struck in favor of joint trials. United States v. Manner, 887 F.2d 317, 324 (D.C. Cir. 1989), cert. denied, 493 U.S. 1062, 110 S. Ct. 879 , 107 L. Ed. 2d 962 (1990). However, as defense counsel points out, "severance is obligatory where the defendant's case rests heavily on exculpatory testimony of his co-defendant, willing to give such testimony but for the fear that by taking the stand in the joint trial he would jeopardize his own defense." United States v. Shuford , 454 F.2d 772, 776 (4th Cir. 1971).
United States v. Ford, 870 F.2d 729 (D.C. Cir. 1989) set forth the standards for determining the disposition of a severance motion. Hamilton must demonstrate (1) bona fide need for Henry's testimony, (2) the substance of the testimony, (3) its exculpatory nature and effect, and (4) the likelihood that the Henry would testify if the trials were severed.
In this case the need, substance, and the exculpatory nature of Henry's testimony is clear. Henry would allegedly testify to the fact that Hamilton did not live in the apartment at the time the evidence was seized and that Hamilton had no control over the contraband. If the trials are not severed, however, Henry would not jeopardize his own interests by testifying to this information. Defense counsel, based on information and belief, asserts that Henry, if given an opportunity to testify without fear of self-incrimination, would provide exculpatory testimony for Hamilton. This is sufficient to satisfy the "threshold showing" required by Ford.
Once this threshold showing is made, the court must (1) examine the significance of the testimony in relation to the defendant's theory of the case; (2) assess the prejudice which would occur if the co-defendant's testimony was not given; (3) consider the effects of judicial economy; and (4) give weight to timeliness of the motion. Ford at 731.
After considering these factors, the Court hereby grants Defendant Hamilton's Motion to Sever.
An appropriate Order accompanies this Memorandum.
Aubrey E. Robinson, Jr.
DATE: January 30, 1992
ORDER - January 30, 1992, Filed
Upon consideration of Defendant Henry's Motion to Suppress Tangible Evidence and Statements, and the Government's Opposition thereto, and Defendant Hamilton's Motion to Suppress Evidence and Motion to Suppress Statements, and the Government's Opposition thereto, and Defendant Henry's Motion to Compel Disclosure of Confidential Informant, and the Government's Opposition thereto, and Defendant Hamilton's Motion to Sever, and the Government's Opposition thereto, it is by the Court this 30th day of January, 1992;
ORDERED, that, for the reasons stated in the accompanying Memorandum, Defendant Hamilton's Motion to Suppress Statement is granted, Defendant Hamilton's motion to suppress evidence is granted in part and denied in part, Defendant Henry's motion to suppress tangible evidence is denied, Defendant Henry's motion to suppress statements is denied, Defendant Henry's motion to compel disclosure of confidential informant is denied, Defendant Hamilton's motion to sever is granted.
Aubrey E. Robinson, Jr.