The opinion of the court was delivered by: COOPER
Defendant Keith Copen, movant herein, has been named with three others in a four count indictment charging conspiracy to distribute narcotics and possession thereof with intent to distribute, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A), and possession of a firearm during the commission of a felony in violation of 18 U.S.C. § 924(c)(2). The case is fixed for trial on June 3, 1974.
Defendant, named in counts one and two of the indictment now moves for various forms of relief. We dispose of it as follows:
1. Severance and/or Postponement
Defendant first moves for severance and/or postponement on the following grounds:
(1) Statements of co-defendant William Standbridge may be used against him at trial which would be highly prejudicial to defendant in violation of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968);
(2) Defendant has not had adequate time to prepare for trial inasmuch as he was not notified of the pending indictment until March 15, 1974, whereas his co-defendants have been actively preparing their defense since the date of their arrest, November 14, 1973; and
(3) Defendant cannot participate in the trial on the scheduled date for reasons of ill health.
Under Bruton, a confession given by one defendant implicating a co-defendant may not be admitted into evidence if the confession defendant does not testify. The confession would constitute inadmissible hearsay evidence against the co-defendant who would thus be denied his constitutional right to confront and cross-examine the witness against him. See United States v. Rice, 435 F.2d 836 (9th Cir. 1970). Here, however, we have no knowledge as to whether such statements will in fact be introduced and if so whether co-defendant Standbridge will testify. Accordingly, defendant's motion for severance under Bruton is premature at this juncture.
Defendant's second assertion is clearly without merit. The Government informs us that defendant was not arrested along with his co-defendants because he was hospitalized and had undergone or was then about to undergo surgery. We have no reason to believe (defendant has set forth nothing of substance on this issue) that the seventy-five (75) days which defendant will have had to prepare for trial will not be more than ample. Finally, we cannot consider defendant's unsupported assertion that his current physical condition will preclude his participation at trial; there is a complete failure to submit properly executed medical affidavits supporting his position. The only documents in the case file relating to defendant's physical condition is a letter from one Edward W. Lowman, M.D. dated March 22, 1974 stating that it would be medically inadvisable for him to be confined to prison. That is insufficient for the purpose of the instant motion.
Accordingly, defendant's motions for severance and/or postponement are denied with leave to renew at the appropriate juncture and upon the showing of a proper foundation.
2. Suppression of Evidence
Defendant moves for suppression of evidence seized from his co-defendants at the time of their arrest. Specifically, he contests the admissibility of a revolver taken from a car in which co-defendants Paz and Morandi were seated at the time of their arrest and of a revolver and narcotic drug, cocaine, seized from co-defendant Standbridge at the time of his arrest.
Defendant has failed to allege the necessary grounds for suppression of evidence: (1) he was not present at the time of the contested search and seizure; (2) he has alleged no possessory or proprietary interest in either the cocaine or the revolvers; and (3) the offenses with which he has been charged (conspiracy to distribute narcotics and possession thereof with intent to distribute) do not include as an essential element possession of the seized evidence at the time of the contested search and seizure. Accordingly, defendant has no standing to contest the admissibility of either the cocaine or the revolvers. Brown v. United States, 411 U.S. 223, ...