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Case 2:11-cr-00424-CLS-MHH Document 138 Filed 07/29/13 Page 1 of 3

FILED

2013 Jul-29 PM 12:54
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION


UNITED STATES OF AMERICA,

VS.

ARTAVIS DESMOND MCGOWAN,


DEFENDANT.



















Case No. 2:11-cr-0424-CLS-PWF








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DEFENDANT’S OBJECTION TO MAGISTRATE JUDGE’S ORDER [DOC.#129]



COMES NOW the defendant, Artavis McGowan, by and through his attorney of

record, and respectfully objects to the factual and legal conclusions contained within the

Magistrate Judge’s Order concerning the Defendant’s Motion to Sever [Doc. 123], by stating

the following:



The Defendant adopts and re-alleges all of the factual and legal arguments

previously set forth in his brief in support of his Motion to Sever.



Severance is warranted in this case based on incriminating statements made by

Figueroa and the affect these statements have on the “spillover effect”. The Eleventh

Circuit has stated the following:

“[T]here are some contexts in which the risk that the
jury will not, or cannot, follow instructions is so great,
and the consequences of failure so vital to the
defendant, that the practical and human limitations of
the jury system cannot be ignored. Such a context is
presented here, where the powerfully incriminating
extrajudicial statements of a codefendant, who stands
accused
are
deliberately spread before the jury in a joint trial…”
United States v. Doherty, 223 F. 3d 1275 (11th Cir.
2000)(citing Bruton v. United States, 391 U.S. 123, 135-
36 (1968).

side-by-side with

the defendant,

Case 2:11-cr-00424-CLS-MHH Document 138 Filed 07/29/13 Page 2 of 3



It has long been recognized that joinder may be prejudicial because of the natural

tendency to infer guilt by association. United States v. Bova, 493 F.2d 33, 36 (5th Cir. 1974).

Put simply, a defendant may suffer by being joined and therefore automatically associated

with another alleged “bad man.” Id. The Constitution “...demands only that the potential

for transference of guilt be minimized to the extent possible under the circumstances....”

United States v. Elliott, 571 F.2d 880, 905 (5th Cir. 1978); United States v. Diaz, 248 F.3d

1065, 1101 (11th Cir. 2001). Whether a severance is granted because of possible spillover

depends on the facts of each particular case. Bovain, 708 F.2d 606 at 609.



This Honorable Court found that Mr. McGowan failed to identify any “powerfully

incriminating extrajudicial statement.” [Doc. 129, p. 7]. As the Court noted, the

Government intends to use statements against Figueroa, which include, Figueroa driving a

vehicle with cocaine located inside. [Doc. 129, p. 8]. The Government also intends to use

statements made by Figueroa in which Figueroa admits driving a vehicle with large sums of

cash hidden inside the vehicle, so that the cash could be returned to Texas. [Doc. 129, p. 8].

Furthermore, the Government intends to use a statement made by Figueroa regarding cell

phones used, which were located next to the cocaine. [Doc. 129, p. 8]



When looking at the individualized facts in this case, severance should be granted.

Having a joint trial will impact Mr. McGowan’s right to a fair trial. Such incriminating

statements made by Figueroa will sway the jury’s view of Mr. McGowan to the point where

he will be found guilty by association. Furthermore, because Figueroa is not a native

English speaker, the chance for improper interpretation during his interrogation by the

Government exists.

Case 2:11-cr-00424-CLS-MHH Document 138 Filed 07/29/13 Page 3 of 3



An example of one such improper interpretation has already been located. The

Government contends that Figueroa stated the owner of the drugs was “El Moreno.” The

Government interpreted this to mean an African American male. El Moreno can actually be

interpreted to mean the dark haired person or dark-skinned person.



The combination of the incriminating statements made by Figueroa and the chance

for misinterpretation, gives rise to a substantial prejudicial affect against Mr. McGowan.

Mr. McGowan’s chances of receiving a fair trial are greatly reduced by a joint trial with

Figueroa.

CONCLUSION



Wherefore, based on the preceding issues and argument, defendant respectfully

moves this Honorable Court to grant him severance from the co-defendant.

Dated: July 29, 2013





























































Respectfully Submitted,

/s/ James W. Parkman, III
JAMES W. PARKMAN, III
Attorney for Defendant McGowan
Parkman & White, LLC
1929 3rd Avenue, North; Suite 700
Birmingham, AL 35203
[email protected]
















CERTIFICATE OF SERVICE




I hereby certify that I have filed the foregoing with the Clerk of Court for the United
States District Court for the Northern District of Alabama via the CM/ECF filing system and
notice of such will be sent to all counsel of record on this the 29th day of July, 2013.





/s/ James W. Parkman, III
OF COUNSEL