UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
v. :
WAYNE THOMAS :
ELLEN B. THOMAS
ROBERT DORROUGH :
WILLIAM THOMAS
DAVID MANNING :
CONCEPCION PICCIOTTO
ANTHONY NELSON :
MOTION TO SEVER
Defendant, Ellen Benjamin Thomas, by counsel, respectfully moves this Honorable Court, pursuant to Federal Rules of Criminal Procedure 8 and 14, to sever her case from that of her codefendants as they are improperly joined and, to monitor her case for consideration of relief from prejudicial joinder by reason of irreconcilable defenses, weight of the government's evidence, and potential deprivation of favorable testimony from codefendants by reason of joinder.
1. Ellen Thomas is before the Court charged in a single count information charging her and her codefendants with camping in a park area not designated for camping in violation of 36 C.F.R., Sections 50.5 and 50.27, as amended June 4, 1982.
2. Ellen Thomas is not accused of conspiring with, aiding and abetting or otherwise joining with the codefendants in violation of the charged offence.
3. Federal Rule of Criminal Procedure 8(b), in pertinent part, permits joinder of defendants in the same information if they are alleged to have participated in the same act or transaction constituting an offense.
4. Absent an allegation of combined participation in the same criminal venture, joinder is not permitted.
5. Defendant Ellen Thomas asks this Court to monitor for prejudice, pursuant to Federal Rule of Criminal Procedure 14, and grant relief from prejudice as it is anticipated that:
a. Defendant Ellen Thomas' defense and the defenses of her codefendants will be irreconcilably antagonistic;
b. Defendant Ellen Thomas will be denied a fair trial by reason of the greater quantum of evidence to be adduced against her codefendants; and,
c. Defendant Ellen Thomas will be denied exculpatory evidence in the form of testimony from her codefendants who may not testify in a joint trial.
6. As a result, the trier of fact will not be able to render a fair decision by inability to reconcile the several defenses; by inability to separately consider evidence relevant to each defendant; and, by denial of consideration of testimony favorable to defendant Ellen Thomas.
WHEREFORE, it is respectfully requested that Ellen Thomas' case he severed
from those of her codefendants, or in the alternative that this Honorable Court monitor development of this case for evidence of prejudice compelling relief from joinder.
Respectfully submitted,
/s/Stephen G. Milliken
STEPHEN .G MILLIKEN
MilliKen & Van Susteren, P.C.
511 E Street, N.W.
Washington, D.C. 20001
(202)393-7676
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing was mailed, postage prepaid, to Assistant U.S. Attorney Pamela Stuart, U.S. Courthouse, Constitution Avenue and John Marshall Place, N.W., Washington, D.C. 20001; to Phyllis B. Tatik, Esquire, Juvenile Justice Clinic, 605 G Street, N.W., Third Floor, Washington, D.C. 20001; to Robert DeBerardinis, Esquire, 1534 16th Street/ N.W., Washington, D.C. 20036; to Mark Venuti, Esquire, 2001 S Street, N.W., Suite 630, Washington, D.C. 20009; and to Richard Seligman, 2001 S Street, N.W., Suite 630, Washington, D.C. 20009; this 31st day of July, 1984.
/s/Stephen G. Milliken
STEPHEN . MILLIKEN
________________________________________________________________________
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
: Criminal No. 84-255
v. : Judge Joyce Hens Green
: Motions Hearing and Trial:
WAYNE THOMAS : 9/17/84
ELLEN B. THOMAS
ROBERT DORROUGH :
WILLIAM THOMAS
DAVID MANNING :
CONCEPCION PICCIOTTO
ANTHONY NELSON :
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION TO SEVER
Defendant Ellen B. Thomas relies on Federal Rules of Criminal Procedure 8(b) and 14 and the exercise of this Honorable Court's sound discretion.
Specifically in regard to the claim of misjoinder, defendant Ellen Thomas respectfully directs this Court's attention to United States v. Perry, 731 F.2d 985 (D.C.Cir. 1984) where the United States Court of Appeals for the District of Columbia Circuit expanded upon the United States' burden in establishing
pretrial the Unecessary relationship -- and hence the benefit to the court of joinder." 731 F.2d at 990 citing United States v. Talavera, 668 F.2d 625, 629 (1st Cir), cert denied sub nom. Pena v. United States, 456 U.S. 978 (1982).
Without an explicit showing within the charging document or from other representations by the government of a common scheme or plan between defendant Ellen Thomas and each of her codefendants joinder is not permitted by Rule 8(b). United States v. Perry, supra, 731 F.2d at 989-990, citing, inter alia, United States v. Jackson, 562 F.2d 789, 793-796 (D.C.Cir. 1977).
WHEREFORE, defendant Ellen Thomas respectfully requests that she be granted severance from her codefendants.
Respectfully submitted,
/s/ Stephen G. Milliken
STEPHEN G. MILLIKEN
Milliken & Van Susteren, P.C.
511 E Street, N.W.
Washington, D.C. 20001
(202) 393-7676
UNITED STATES OF AMERICA
v.
WAYNE THOMAS
ELLEN B. THOMAS
ROBERT DORROUGH
WILLIAM THOMAS
DAVID MANNING
CONCEPCION PICCIOTTO
ANTHONY NELSON
ORDER
This matter having come before the Court on Defendant Ellen Thomas' Motion to Sever, and the Court having considered the premises therefore, and the Government's Opposition, for good cause shown it is this day of 1984,
ORDERED that Defendant Ellen Thomas' case be severed from the cases against her codefendants.
/s/ Judge Joyce Hens Green
U S. DISTRICT JUDGE