IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA )

)

vs. ) Criminal Case No. 2:06-cr-200-CSC

)

ROSA E. RINCON )

MOTION TO SEVER

COMES NOW Defendant, by and through counsel, and prays that this Court will Sever

her trial from that of Hector Silva, and in support of which would show as follows:

Ms. Rincon expects the evidence at trial to show that she was a passenger in a pickup

truck being driven by Mr. Silva; that the truck was stopped, purportedly for a traffic violation;

that the truck was searched by two or more State Troopers; and that a quantity of cocaine was

located in the bed of the truck.

Ms. Rincon has pleaded not guilty to the charges, but does not expect to testify at the trial

of this cause.

Ms. Rincon is mindful of the needs for judicial economy and the efficient administration

of judgment; however, joinder of her case with Mr. Silva’s would violate one or more of her

substantive rights, to wit: unavailability of full cross-examination and denial of her Sixth

Amendment confrontation rights. Moreover, Ms. Rincon asserts that the admission of evidence

as against Mr. Silva would presumptively prejudice her rights to a fair trial to the point of

denying her a fundamentally fair trial.

This is a case in which a joint trial would prevent Ms. Rincon from calling Mr. Silva to

the stand because he would doubtless invoke his privilege against self-incrimination. In this

case, the Court should grant a severance to allow Mr. Silva’s exculpatory testimony to be

Case 2:06-cr-00200-WHA-CSC Document 44 Filed 09/22/2006 Page 1 of 3
adduced at a severed trial. U.S. v. Echeles, 352 F.2d 892, 897 (7th Cir. 1965). To that end, Ms.

Rincon asserts that she would call Mr. Silva at a separate trial, that Mr. Silva would testify, and

that the testimony would be substantially exculpatory. Ms. Rincon asserts that Mr. Silva would

testify that there was no objective reason that Ms. Rincon would have known of the existence of

any controlled substances in the bed of the vehicle. U.S. v. Leichtman, 742 F.2d 598, 605 (11th

Cir. 1984).

Joinder of Ms. Rincon’s case with Mr. Silva’s would result in actual prejudice to Ms.

Rincon.

WHEREFORE, Defendant Rincon prays that the Court will sever her trial from that of

Mr. Silva.

RESPECTFULLY SUBMITTED, this __22nd__ day of September, 2006.

/s/ JAY LEWIS

Law Offices of Jay Lewis, L.L.C.

P.O. Box 5059

Montgomery, Alabama 36103

(334) 263-7733 (Voice)

(334) 832-4390 (Fax)

J-Lewis@JayLewisLaw.com

ASB-2014-E66J

Attorney for Defendant

Case 2:06-cr-00200-WHA-CSC Document 44 Filed 09/22/2006 Page 2 of 3
CERTIFICATE OF SERVICE

I hereby certify that on the _22nd_ day of September, 2006, I electronically filed the

foregoing with the Clerk of the Court using the CM/ECF system which will send notification of

such filing to the following parties or counsel:

Terry Moorer

Office of the United States Attorney

One Court Square, Suite 201

Montgomery, AL 36104

/s/ JAY LEWIS

Law Offices of Jay Lewis, L.L.C.

P.O. Box 5059

Montgomery, Alabama 36103

(334) 263-7733 (Voice)

(334) 832-4390 (Fax)

J-Lewis@JayLewisLaw.com

ASB-2014-E66J

Attorney for Defendant

Case 2:06-cr-00200-WHA-CSC Document 44 Filed 09/22/2006 Page 3 of 3