Saturday, December 10, 2005
Follow up: In November US District Court-Nebraska Magistrate denies Norfolk attorney's motion to sever his trial from co-defendants in meth distribution ring and also to suppress transcripts of wiretapped phone conversations U.S. v. FREESE, 8:05CR131. (D.Neb. 11/09/2005) Magistrate Judge Thalken 3 co defendants have plead guilty and 3 remain for trial including Freese. Freese moved for severing his trial from the remaining defendants because he claims he was at best associated with the defendants and no evidence show his actual participation in distributing meth. Court denies Fed rule of criminal procedure 19 motion to sever; case not unduly complex, not otherwise confusing to the jury and he is not presenting a defense theory that would be defense is irreconcilable with that of a co-defendant. United States v. Nichols, 416 F.3d 811, 816 (8th Cir. 2005). However, "[m]utually antagonistic defenses are not prejudicial per se."Zafiro v. United States, 506 U.S. 534, 537 (1993). In other words a liars contest among co defendants does not count Magistrate overrules motion to suppress phone calls, notwithstanding attorney client relationship "Freese contends that although the attorney-client privilege belongs to the client, he is duty bound to protect the privileged conversations. " The Government contested the suppression because Freese cant assert the privilege, the statements were not for legal advice orrepresentation or even if they were, the attorney and the co defendant-client were engaged in a crime or fraud, thus excepting the evidence from privilege. Freese's objection to admitting the calls comes from 18 U.S.C. Â§ 2518(10)(a) (i) that the communication was unlawfully intercepted. Court finds the government sufficiently minimized its surveillance activities and in drug conspiracy cases, it is entitled to listen longer tophone calls and the "2 minute" rule really doesnt apply, surveillance for up to five minutes the 2nd circuit approved in United States v. Hinton, 543 F.2d 1002, 1012 (2d Cir. 1976)(The commonly used two-minute standard is not absolute, and courts occasionally allow longer periods of uninterrupted interception.) "Freese argues only that the interceptions relate to privileged communications because they were between an attorney and his client. However, communications between attorney and client are not per se privileged. " the Magistrate found many calls too short to minimize, some were not related to legal work, and finally subject to the crime fraud exception.
Posted by stan_sipple at 10:27 PM