IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA )

)

vs. ) CASE NO. 2:06-cr-200-WHA-CSC

)

ROSA RINCON )

)

)

UNITED STATES’ RESPONSE IN OPPOSITION TO 

DEFENDANT RINCON’S MOTION TO SEVER

COMES NOW the United States of America, by and through its attorney, Leura G. Canary,

United States Attorney, and responds to Defendant/Movant Rosa Rincon’s Motion To Sever trial

as follows:

I. FACTUAL BACKGROUND 

1. On or about July 13, 2006, Defendant Rosa Rincon (“Rincon”) was a passenger in

a truck driven by her co-defendant Hector Silva (“Silva”). While traveling from Texas to Atlanta

through the Middle District of Alabama, the vehicle was stopped by an Alabama State Trooper for

a traffic violation. The traffic stop resulted in a search of the vehicle whereupon the officers

discovered approximately 10 (ten) kilograms of cocaine in a cabinet in the bed of the truck. 

2. Rincon and Silva were charged in a single indictment by a grand jury for the Middle

District of Alabama on August 15, 2006. (Doc. # 30.) The indictment alleges that the defendants

did knowingly and intentionally possess and possess with intent to distribute approximately 10 (ten)

kilograms of cocaine, a Schedule II Controlled Substance, in violation of 21 U.S.C. § 841(a)(1).

II. RINCON’S MOTION TO SEVER

3. Rincon has filed a motion to sever her trial from that of Silva. (Doc. #44.) Rincon

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asserts the admission of evidence against Silva would presumptively prejudice her rights to a fair

trial.

4. Rincon also asserts that, if tried separately, Silva would provide exculpatory

testimony on her behalf. Rincon submits that Silva would testify there was no objective reason that

she would have known cocaine was hidden in the cabinet in the bed of the truck.

III. LEGAL STANDARD AND ANALYSIS

5. It is the general rule in this Circuit that “persons who are charged together should be

tried together.” United States v. Adams, 1 F.3d 1566, 1578 (11th Cir. 1993). However, where “the

joinder of offenses or defendants in an indictment . . . for trial appears to prejudice a defendant. . .

the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief

that justice requires.” Fed. R. Crim. P. 14(a) (emphasis added.)

6. The United States Court of Appeals for the Eleventh Circuit has a well-established

framework for analyzing a motion to sever based on a claimed need for a co-defendant’s testimony.

A defendant arguing for a severance must demonstrate: (1) a bona fide need for the testimony; (2)

the substance of the desired testimony; (3) the exculpatory nature and effect of the desired testimony;

and (4) that the co-defendant would testify at a separate trial. United States v. Baker, 432 F.3d 1189,

1239 (11th Cir. 2005) citing United States v. Cobb, 185 F.3d 1193, 1197 (11th Cir. 1999). See also

United States v. Leichtman, 742 F.2d 598, 605 (11th Cir. 1984). After a defendant establishes each

of these four elements, a district court must still (1) examine the significance of the testimony in

relation to the defendant’s theory of the case; (2) assess the extent of prejudice caused by the absence

of the testimony; (3) consider judicial administration and economy; and (4) give weight to the

timeliness of the motion. Id. See also United States v. Machado, 804 F.2d 1537, 1544 (11th Cir.

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1986). 

7. In United States v. Novaton, 271 F.3d 968, 990 (11th Cir. 2001), the Eleventh Circuit

instructed that district courts should only grant severance where “statements concerning the

testimony that would become available by severing trials must be specific and exonerative, rather

than conclusory or self-serving . . . .” This standard was reaffirmed by the Court in United States

v. Baker, id. at 1240. 

 8. Rincon’s motion to sever does not meet the standard set forth by the Eleventh Circuit

in the above-cited cases, and must therefore be denied on this ground without further analysis.

Although she has explained how Silva’s potential testimony could show that she did not knowingly

possess 10 (ten) kilograms of cocaine, she has not shown that Silva would in fact testify as she

represents, or that he would actually do so at her trial. Proof that a co-defendant would actually

testify is an essential element for severance that has not been satisfied. Leichtman, id. 

9. Finally, Rincon’s argument that a separate trial is necessary because Silva would

testify at a separate trial to avoid incriminating himself at his own trial. Her rationale runs contrary

to the Eleventh Circuit’s holding that a co-defendant such as Silva cannot condition his offer to

testify on the order of trials, or condition the offer upon being removed from jeopardy. Cobb, id. at

1198. If Silva testified at Rincon’s trial that he knew of the cocaine and she did not, his sworn

testimony would be relevant in proceedings against him, including trial, and if convicted, sentencing.

10. Rincon has not shown that Silva would testify at her trial, or proffered the substance

of his testimony. She has therefore failed to meet the standard for severance based on the need for

a co-defendant’s testimony. Her motion to sever trial should be denied.

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III. CONCLUSION

For the above reasons, the motion to sever trial is without merit and should be denied.

Respectfully submitted this 29th day of September, 2006.

Respectfully submitted,

 LEURA G. CANARY

UNITED STATES ATTORNEY

/s/ Terry F. Moorer

TERRY F. MOORER

Assistant United States Attorney

Post Office Box 197

Montgomery, Alabama 36101-0197

(334) 223-7280

(334) 223-7135 fax

terry.moorer@usdoj.gov

Case 2:06-cr-00200-WHA-CSC Document 57 Filed 09/29/2006 Page 4 of 5
IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA )

)

vs. ) CASE NO. 2:06-cr-200-WHA-CSC

)

ROSA RINCON )

)

)

CERTIFICATE OF SERVICE

I hereby certify that on September 29, 2006, I electronicallyfiled the foregoing with the Clerk

of the Court using the CM/ECF system which will send notification of such filing to the following:

Jay Lewis.

Respectfully submitted,

 LEURA G. CANARY

UNITED STATES ATTORNEY

/s/ Terry F. Moorer

TERRY F. MOORER

Assistant United States Attorney

Post Office Box 197

Montgomery, Alabama 36101-0197

(334) 223-7280

(334) 223-7135 fax

terry.moorer@usdoj.gov

Case 2:06-cr-00200-WHA-CSC Document 57 Filed 09/29/2006 Page 5 of 5