The document is a legal memorandum from defendant Alfredo Barba, arguing for the severance of count three from a superseding indictment due to misjoinder and prejudicial joinder. Barba contends that the charges of drug trafficking and money laundering (counts one and two) are unrelated to the illegal re-entry charge (count three), thus risking jury confusion and prejudice. The memorandum highlights that the offenses do not share a common scheme, and joining them for trial undermines Barba's right to a fair trial.

1. UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
UNITED STATES OF AMERICA, )))
v. ) DOCKET NO. 3:08-CR-46
) (Judges Phillips / Shirley)
)
ALFREDO BARBA, ET AL. )
MEMORANDUM IN SUPPORT OF MOTION FOR SEVERANCE OF COUNT
THREE OF THE SUPERSEDING INDICTMENT (Doc. 95) BASED UPON
MISJOINDER UNDER FED. R. CRIM. P. 8(a) OR IN THE ALTERNATIVE
SEVERANCE BASED UPON PREJUDICIAL JOINDER OF COUNT THREE OF
THE SUPERSEDING INDICTMENT (Doc. 95) UNDER FED. R. CRIM. P. 14
Defendant ALFREDO BARBA (hereinafter “Defendant” or “Alfredo Barba”)
pursuant to Fed. R. Crim. P. 12(b) submits this memorandum of law in support of his
Motion for Severance of Count Three of the Superseding Indictment (Doc. 95) based
upon misjoinder Under Fed. R. Crim. P 8(a), or in the alternative, severance based upon
prejudicial joinder of Count Three of the Superseding Indictment (Doc. 95) under Fed. R.
Crim. P. 14.
Defendant prays this Honorable Court to grant a separate trial as to Count Three
of the Superseding Indictment (Doc. 95), or provide whatever other relief justice requires.
As grounds for this memorandum of law, Defendant states the following:
ARGUMENT
1. Although the Superseding Indictment (Doc. 95) charges Defendant Alfredo
Barba with three separate offenses, these alleged offenses arise from at least two separate,
unrelated and distinct incidents.

2. 2. Counts One and Two charge Defendant Alfredo Barba with drug trafficking
conspiracy andmoney laundering, arising from an alleged conspiracy occurring from
October 2007 untilMay 11, 2008.
3. Count Three of the Superseding Indictment charges Defendant Alfredo Barba
with illegal re-entry – an immigration issue; an offense arising from a wholly unrelated
and factually remote incident alleged to have occurred around February 18, 2008.
4. The Superseding Indictment violates the spirit of Fed. R. Crim. P. 8 and
Counts One and Two may not be properly joined with Count Three under Fed. R. Crim P.
8 because these offenses are (1) not of the same or similar character; (2) not based on the
same act or transaction; and (3) not connected with or constitut[ing] parts of a common
scheme or plan. See Fed R. Crim P. 8(a).
5. These alleged incidents shared no common purpose or evidence, and joinder
would be inconsistent with providing the Defendant with a fair trial, and would do
nothing toward promoting the goals of trial convenience and judicial efficiency. See
United States v. Wirsing, 719 F.2d 859 (6th Cir. 1983); see also United States v. Diaz-
Munoz, 632 F.2d 1330, 1335-36 (5th Cir. 1980)
6. Nothing suggests that proof of Count Three either constituted or depended
upon proof of the other two counts listed in the Superseding Indictment.
7. The Superseding Indictment does not offer a discernable link between Count
Three and the other two offenses or suggest any overlapping evidence.
8. No effort is made in the Superseding Indictment to suggest that the three
offenses are of the same or similar character, based on the same act or transaction, or part
of a common scheme.
2

3. 9. In other words, restricting inquiry to the allegations in the Superseding
Indictment, the Government does nothing to suggest a nexus between Count Three (i.e.,
the illegal re-entry offense) and Counts One and Two of the same indictment.
10. Whether an individual is in the country legally does not create an inference or
a link with a conspiracy; drug trafficking and money laundering are not crimes solely
reserved or linked to individuals in the U.S. illegally – introduction of evidence on all
counts during a single trial will prejudice the Defendant.
11. In cases of joinder, it is much more difficult for jurors to compartmentalize
damaging information about a defendant derived from joined counts; especially where
the evidence of each offense is not simple and distinct.
12. Evidence of the related counts (i.e., Counts One and Two) would likely taint
a jury’s consideration of the unrelated count (i.e., Count Three), or vice versa.
13. Thus, if there is some likelihood of a jury becoming confused and applying
the evidence to the wrong charge, severance is warranted. See United States v. Johnson,
820 F.2d 1065, 1071 (9th Cir. 1987); see also Drew v. United States, 331 F.2d 85, 88
(D.C. Cir. 1964).
14. Thus, for all of the above reasons, joinder of Count Three in the Superseding
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Indictment is improper and impermissible.
15. Alternatively, even if the joinder is permissible under Fed. R. Crim. P. 8(a),
severance may be granted if it appears that there is a possibility of undue prejudice from a
single trial. See Fed. R. Crim P. 14; see also United States v. Wirsing, 719 F.2d 859 (6th
Cir. 1093).

4. 16. If it appears that a Defendant is prejudiced by a joinder of offenses or of
Defendants in an indictment or by such joinder for trial together, the Court may order an
election or separate trial counts, grant a severance of Defendants or provide whatever
relief justice requires. See Fed. R. Crim. P. 14.
17. If a severance of Count Three from the Superseding Indictment is not
granted, prejudice to the Defendant may result based on: (1) myopic and racist national
and local sentiment linking crime and Spanish surnamed individuals alleged to be “illegal
aliens”; and (2) the denial of the Defendant’s Sixth Amendment right to a fair trial due to
imposing a trial on wholly unrelated offenses.
18. First, in these volatile times of immigration debate and adverse feelings
toward Spanish speaking immigrants alleged to be “illegals” it is a true danger and
likelihood that a jury may use the evidence of one offense (i.e., an illegal re-entry charge)
to infer a criminal disposition on the part of the defendant with respect to the other
charges outlined in an indictment.
19. Appeals to nationality or other prejudices are highly improper in a court of
justice, and by coat-tailing Count Three onto the two separate and distinct counts outlined
in Counts One and Two of the Superseding Indictment, the danger exists that a jury may
improperly imply that Defendant Alfredo Barba is unreliable and possessed cocaine
simply because he is a Hispanic male who may have been in the United States illegally;
such an inference is to impugn the standing of the Defendant before the jury and intimate
that the Defendant would be more likely to commit the crimes charged; and such an
inference is improper and prejudicial.
4

5. 20. Secondly, among the relevant circumstances the Court must consider is the
“balancing of the interest of the public in avoiding a multiplicity of litigation and the
interest of the defendant in obtaining a fair trial." United States v. Wiring, 719 F.2d 859,
862 (6th Cir. 1983).
21. A fair trial cannot be had if counsel is made to litigate the Defendant’s
already complicated and intricate drug conspiracy case along with a wholly unrelated
complex immigration issue.
22. When a criminal defense attorney has a client who may not be a legal citizen,
the circumstances surrounding the case become increasingly more complex due to the
ever changing and complicated immigration laws.
24. In Wirsing, the Sixth Circuit found in that while the allegations of a
conspiracy to traffic in drugs and tax evasion from the drug money were properly joined
under Rule 8(a), the district court should have granted a severance pursuant to Fed. R.
Crim. P. 14 because the defense attorney was unprepared to challenge the complex tax
evasion charges and possible “spillover” effect from trying the different types of offenses
in a joint trial. See Id.1
27. Similarly, in the case at bar, there will be a prejudicial “spillover effect” from
Defendant Barba’s immigration/illegal re-entry issue to the drug conspiracy and money
laundering allegations due to counsel’s unfamiliarity with immigration law and possible
disparity in evidence.
28. It is well-settled that immigration law is a specialized area of the law with
which most criminal defense attorneys are not familiar.
1 The Court in Wirsing concluded that there was a prejudicial "spillover effect" from the tax evasion
charges to the drug conspiracy charge due to defense counsel's unpreparedness, which prejudiced the
defendant's right to a fair trial. Id.
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6. 29. The Defendant has an immigration attorney in Nashville, Tennessee that has
been handling the Defendant’s illegal re-entry charge for several months in separate
proceedings.
30. The conspiracy counts and the illegal re-entry count are not manifestly
related, and introduction of evidence on all counts will substantially prejudice the
Defendant.
WHEREFORE, the Defendant, for all of the above reasons, respectfully moves
for severance of Count Three fromthe Superseding Indictment, and requests a separate
trial as to Count Three of the Superseding Indictment, or whatever relief justice requires.
RESPECTFULLY submitted, October 21, 2008.
s/ A. Philip Lomonaco
BPR # 11579
800 S. Gay Street, Suite 2610
Knoxville, TN 37929
865-521-7422, izyglty@usit.net
CERTIFICATE OF SERVICE
I do hereby certify that on October 21, 2008, a copy of the foregoing document
was filed electronically. Notice of this filing will be sent by operation of the Court’s
electronic filing system to all parties indicated on the electronic filing receipt. All other
parties will be served by U.S. mail. Parties may access this filing through the Court’s
electronic filing system.
s/ A. Philip Lomonaco
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