UNITEDSTATES DISTRICT COURT

EASTERNDISTRICT OF TEXAS

SHERMANDIVISION

UNITEDSTATES OF AMERICA, )      CRIMINAL ACTIONNO.

                                           )

              Plaintiff,                )      4:-04-CR-175

                                           )

v.                                         )

                                           )

BILLYGENE YYY, )

                                           )

              Defendant.                    )

)

MOTIONFOR SEVERANCE AND MEMORANDUM OF LAW IN SUPPORT THEREOF

         DefendantBilly Gene YYY, pursuant to Fed. R. Crim. P. 14, hereby moves this Court tosever Count 1 from Count 2 in the above referenced case.  In support of this Motion, Mr. YYY setsforth the following facts and argument.

         1.  Mr. YYY is charged in Count 1 of theindictment filed in this case with arson in violation of 18 U.S.C. § 844(i).

         2.  He is charged in Count 2 with being afelon-in-possession of a firearm, in violation of 18 U.S.C. § 922(g).  Count 2 alleges five predicate felonyconvictions alleged to have been sustained by Mr. YYY including fourconvictions for burglary and one for interference with a police officer.

         3.  Fed. R. Crim. P. 14(a) provides that,if the joinder of offenses against one defendant for trial appears to prejudicea defendant, the court may order separate trials of the counts.

            4.  As the United States Court of Appealsfor the Fifth Circuit noted in United States v. Singh 261 F.3d 530 (5th Cir. 2001) and later reaffirmed inUnited States v. McCarter, 316F.3d 536 (5th Cir. 2002), it has “long recognized the obvious dangers ininherent in trying a felon-inpossession count together with other charges, asit acts as a conduit through which the government may introduce otherwiseinadmissible evidence of a defendant’s prior convictions, thereby potentiallytainting the reliability of the verdict rendered by the jury on othercounts.” Id. at 538. Indeed, in both Singh and McCarter, the Fifth Circuit found that district court judgeshad abused their discretion in failing to sever felon-in-possession chargesfrom other charges and reversed the defendants’ convictions. See also, e.g., United Statesv. Jones, 16 F.3d 487, 492-93 (2d Cir.1994) (same); United States v. Dockery, 955 F.2d 50 (D.C. Cir. 1992) (same); United States v.Lewis, 787 F.2d 1318, 1320-23 (9th Cir.1986) (same).

            5.  As noted in Lewis:

       Studieshave shown that joinder of counts tends to prejudice jurors' perceptions of thedefendant and of the strength of the evidence on both sides of the case. See Tanford, Penrod & Collins, DecisionMaking in Joined Criminal Trials: The Influence of Charge Similarity, EvidenceSimilarity, and Limiting Instructions, 9Law and Human Behavior 319, 331-35 (1985); Bordens & Horowitz, Joinderof Criminal Offenses: A Review of the Legal and Psychological Literature, 9 Law and Human Behavior 339, 343, 347-51 (1985).

Lewis, 787 F.2d at 1322.

            6.  While the government has not yetprovided discovery in this case, Mr. YYY submits that the government’s evidenceon the arson charge is “thin.” See McCarter,316 F.3d at 539. In any event, itwill be hotly contested. Theunderlying felonies forming the basis for the felon-in-possession charge wouldnot be admissible on the arson charge alone. Indeed, because of their age, they would not even beadmissible in the event Mr. YYY was to testify regarding the arson charge.

            7.  A failure to sever the charges willprejudice Mr. YYY in two ways. First, he would be prejudiced on the arson charges if the jury was tolearn of his criminal record. Id. at 539 n.12, quoting Jones, 16 F.3d at 493 (“[A]lthough ‘jurors are presumed tofollow instructions from the court,’ it ‘would be quixotic to expect the jurorsto perform such mental acrobatics’ in cases in which felon-in-possession countsare joined with other counts.”). Second, Mr. YYY wishes to testify in his defense if the arson charge istried by itself but he will not testify regarding the felon-in-possessioncharge. Therefore, the failure tosever would, in essence, deny him the right to testify on his own behalf andpresent a defense.

            8.  The arson case will be complex and thetrial likely will be lengthy. Thefelon-in-possession case, on the other hand, will be simpler to try and willlikely only take one or two days to try. In the event the Court denies this Motion to Sever, based upon the FifthCircuit precedent cited above, it is likely that the convictions will bereversed, thereby, squandering the Court’s resources that went into trying thecomplex arson case.

            WHEREFORE,Mr. YYY respectfully requests this Court to sever Count 1 from Count 2 in theabove referenced case

                                                      Respectfullysubmitted,

                       /s/

                                                      F.Clinton Broden

                                                      Tx.Bar 24001495

                                                      Broden& Mickelsen

                                                      2707Hibernia

                                                      Dallas,Texas 75204

                                                      214-720-9552

                                                      214-720-9594(facsimile)

                                                      Attorneyfor Defendant

                                                      BillyGene YYY
CERTIFICATE OF CONFERENCE

            Pursuantto the local rules of the Eastern District of Texas, I, F. Clinton Broden,certify that I attempted to conference with Ernest Gonzalez, the AssistantUnited States Attorney assigned to the case by leaving a message on his voicemail on January 18, 2005, but as of the time of the mailing of this motion, didnot hear back from Mr. Gonzalez.

            /s/

                                                      F.Clinton Broden

CERTIFICATEOF SERVICE

            I,F. Clinton Broden, certify that on January 20, 2005, I caused the foregoingdocument to be served by first class mail, postage prepaid, on Ernest Gonzalez,Assistant United States Attorney, One Grand Centre, Suite 500, Sherman, Texas75090.

                                                      ________/s/_________________________

                                                      F.Clinton Broden

UNITEDSTATES DISTRICT COURT

EASTERNDISTRICT OF TEXAS

SHERMANDIVISION

UNITEDSTATES OF AMERICA, )          CRIMINALACTION NO.

                                     )

               Plaintiff,               )          4:-04-CR-175

                                     )

v.                                   )

                 )

BILLYGENE YYY, )

                                     )

               Defendant.       )

)

ORDER

Defendant Billy Gene YYY’s Motion to Sever is this____ day of January, 2005 GRANTED.

            ORDEREDpursuant to Fed. R. Crim. P. 14, Count 1 of indictment in this case is herebysevered from Count 2.

                                                      ____________________________________

                                                      RICHARDSCHELL

                                                      UNITEDSTATES DISTRICT JUDGE