Opinion
No. S1 03 CR 1238 (KMW).
August 31, 2005
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.
SO ORDERED.