United States District Court, S.D. New York
August 31, 2005.
UNITED STATES OF AMERICA, Plaintiff,
RADCLIFFE BARNES, et al, Defendants.
The opinion of the court was delivered by: KIMBA WOOD, District Judge
OPINION AND ORDER
Defendant Radcliffe Barnes ("Barnes") moves: (1) to preclude
all Title-III and body-wire recordings that the Government may
offer at trial, as "irrelevant" under Federal Rules of Criminal
Procedure 104(b) and 901; (2) to preclude admission of
transcripts that the Government may offer at trial, because,
according to Barnes, the Government's draft transcripts are
inaccurate; (3) for severance of his trial from Pryce's trial,
because of supposed mutually antagonistic defenses and spillover
prejudice; and (4) to redact portions of Pryce's post-arrest
statement that refer to Barnes.
The Court grants the request for redactions, subject to Court
approval of the redacted text.
The Court denies Barnes's motion in all other respects.
(1) Barnes asserts that the recordings that the Government will
likely offer at trial are "irrelevant" because his voice is not
recorded on them. Assuming arguendo that Barnes's voice is not recorded on these recordings (an assertion
that the Government disputes), they would still be admissible
against Barnes if they are proof of the alleged conspiracy.
To the extent that Barnes challenges voice attributions, which
the Government states it can support through a witness who has
previously heard Barnes speak, it is the jury that must decide to
whom to attribute voices. There is no basis in law to preclude
admission of such evidence pre-trial.
(2) The Government's draft transcripts are merely drafts, which
may be changed between now and trial, and thus the motion to
exclude them as inaccurate is premature.
(3) Severance is not warranted by virtue of the "spillover
prejudice" that Barnes claims he will suffer, given that the
Indictment charges the defendants in a narcotics conspiracy; the
evidence Barnes claims is inadmissible against him will be
admitted only if the Government meets the governing legal
standard. Furthermore, although Barnes claims that defenses that
he expects his co-defendants to assert are antagonistic to his
defense, no antagonism warranting severance has been shown.
The Court denies the request, contained in Ms. Fink's August
19, 2005 letter to the Court, that the Court (1) compel a speedy
production of final transcripts, and (2) hold a hearing to
determine the accuracy of the transcripts. The jury will decide the accuracy of transcripts.
For the foregoing reasons, Barnes's motion is denied in all
respects other than that the Court grants his motion to redact
portions of Pryce's post-arrest statement that refer to Barnes,
subject to Court approval of the redacted text.
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