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Where the joinder of defendants for trial is proper under Rule 8(b), F.R.C.P., then a severance of defendants may be obtained only upon showing of “prejudice” and under Rule 14, F.R.CR.P. Such is left to the discretion of the trial court and will be overturned on appeal only upon a showing of an abuse of discretion. US v. Borain, 708 F.2d 606, 608 (11th Cir. 1983); US

  1. Johnson, 713 F.2d 633 (11th Cir. 1983); US v. Day, 789 F.2d 1217, 1224 (6th Cir. 1986); US v. Stotts, 792 F.2d 1318, 1321 (5th Cir. 1986); US v. Lamp, 779 F.2d 1088, 1093 (5th Cir. 1986)

[must demonstrate compelling prejudice against which trial court could not provide protection]; US v. Chang An-Lo, 851 F.2d 547, 1988 WL 66326 (2nd Cir. June 27, 1988). In most cases severance is denied. Wright, Federal Practice and Procedure: Criminal, §223.

“In seeking to overturn the denial of a Rule 14 motion, ‘(t)he burden is upon a moving defendant to show facts demonstrating that he will be so severely prejudiced by a joint trial that it would in effect deny him a fair trial. The defendant must demonstrate that he suffered such prejudiced as a result of the joinder, not that he might have had a better chance for acquittal at a separate trial,” US v. Chang An-Lo, Supra.

As has been previously discussed, prejudice is inherently present in any joint trial of numerous defendants. “[A]ll joint trials …furnish inherent opportunities for unfairness.” Spencer v. Texas, 385 US 554 (1967). There are “no precise tests applicable” that can provide a foolproof resolution under Rule 14. See e.g. US v. Moten, 564 F.2d 620, 627 (2d Cir. 1977).

“among time factors the court must consider in determining whether the prejudice of a joint trial rises to the level of a ‘miscarriage of justice’ are the following: the number of defendants and the number of counts; the complexity of the indictment; the estimated length of the trial; disparities in the amount or type of proof offered against the defendants; disparities in the degrees of involvement by defendants in the overall scheme; possible conflict between various defense theories or trial strategies; and, especially, prejudice from evidence admitted only against co-defendants but which is admissible or excluded as to a particular defendant.” US v. Gallo, 668 F. Supp 736 (E.D.N.Y. 1987).

However, the courts have been reluctant to grant separate trials, and the test generally applied to determine whether a severance should be granted is to balance the prosecutorial and judicial inconvenience and expense of separate trials against the prejudice to the defendant of a joint trial. US v. Rodgers, 475 F.2d 828 (7th Cir. 1973).

Accordingly, severance of defendants properly joined under Rule 8(b), has been denied under Rule 14, even though obviously prejudicial factors existed; as where the defenses of codefendants are antagonistic or hostile. US v. Abrams, 29 F.R.D. 178 (S.D.W.Y. 1961); US v. Leu, 22 F.R.D. 490 (S.D.N.Y. 1958); Dauer v. US, 189 F.2d 343 (10th Cir.) cert. denied, 342 US

898 (1951); US v. Nelson, 468 F.2d 912 (5th Cir. 1972), cert. denied, 410 US 986 (1973); US v. Martinez, 466 F.2d 679 (5th Cir. 1972), cert. denied 414 US 1065 (1973) [where the defendant is subjected to additional expense by joint trial]; US v. Berman, 23 F.R.D. 26 (S.D. N.Y. 1959); Photon Inc. v. Harris Intertype, Inc., 28 F.R.D. 328 (D. Mass. 1961); US v. Gioguardi, 332 F.Supp. 7 (S.D.N.Y. 1971) [where the defendant would have a better chance of acquittal from separate trial]; Tillman v. US, 406 F.2d 920, 935 (5th Cir. 1969), cert. denied, 395 US 830 [where another defendant has a more extensive criminal record or other unattractive characteristics]; Glass v. US, 351 F.2d 680 (10th cir. 1965); US v. Hoffa, 367 F.2d 798, 709 (7th Cir. 1966), rev’d on other ground, 387 US 231 (1967); US v. Myers, 406 F.2d 746 (4th Cir. 1969); US v. Adonizio, 451 F.2d 49 (3rd Cir. 1971), cert. denied, 405 US 936 (1972); or where evidence is admissible against a co-defendant. Katz v. US, 321 F.2d 7,8 (1st Cir.) cert. denied, 375 US 903 (1963); Rizzo v. US, 304 F.2d 810, 818 (8th Cir.), cert. denied, 371 US 890 (1962); US v. Harris, 441 F.2d 1333 (10th Cir. 1977); US v. Simuel, 439 F.2d 687 (4th Cir.), cert. denied, 404 US 836 (1971); or where a co-defendant was willing to testify on behalf of a defendant, but only if he could be tried first; US v. Blanco, 844 F.2d 344 (6th Cir. 1988) [Rule 14 is not a “mechanism for alleged co-conspirators to control order in which they are tried].



 On the other hand, prejudice under Rule 14 has been found and severance granted to prevent a joint trial.


Severance has been granted where there are numerous counts with each defendant only charged in a few court, and involved with only small portions of evidence, US v. Gaston, 37

F.R.D. 476 (D.D.C. 1965); US v. Branker, 395 F.2d 881 (2d Cir. 1968); US v. Donaway, 447 F.2d 940 (9th Cir. 1971).


Where there is a “gross disparity of the charges against the co-defendants as opposed to the charges against the accused.” US v. Sampol, 636 F.2d 621, 651 (D.C. Cir. 1980) [defendant charged with a misprision what joined with co-defendants charged with conspiracy to assassinate a foreign official and two murders].

“To speak in terms of ‘transference’ or ‘rubbing off’ of guilt, classic expressions used to explain why severance is justified in a particular case, would be to downplay the prejudice that [the Defendant] was subject to in a joint trial alongside two men on trial for the bombing murder of two people… He was not charged with the conspiracy or murders, but he still was required to sit in the court while the emotion charged testimony was unveiled to the jury and to hear his name bandied around the fringes of those offenses…” US v. Sampol, Supra, at p. 647.

See:                 US v. Grey Bear, 828 F.2d 1286 (8th Cir. 1987).

See also:    US v. Gallo, 668 F. Supp 736, 736, 750 (E.D. N.Y. 1987), aff’d, 863 F.2d 183,

1988 [severance granted where there was “no indication …they necessarily knew of the enterprise’s violent racketeering activity, and at the very least they did not become affiliated with that part of the Family’s affairs.”]



Antagonistic defenses may warrant a severance. Where co-defendants’s theory of defense was completely antagonistic to the defendant’s and the co-defendant’s confession laid blame on defendant, the fifth Circuit has granted a severance. US v. Johnson, 478 F.2d 1129 (5th Cir. 1973).

See:                 US v. Peveto, 881 F.2d 844 (10th Cir. 1989) [severance required where one defendant claims he was working for the police as an informant and the other defendant claims he innocently went to the other’s house and was held there against his will when police arrived].

But See:           US v. Kaufman, 858 F.2d 994 (5th Cir. 1988) [a defendant’s claim that he was entrapped (thereby admitting commission of the acts charged), did not preclude possibility that other defendants could prevail on their defenses]; US v. Silvers, 425 F.2d 707 (5th Cir. 1970).



Whether jury, in order to believe the core of the testimony offered by the defendant, must necessarily disbelieve the testimony offered by his co-defendant. US v. Berkowitz, 662 F.2d 1127, 1133-34 (5th Cir. 1981); US v. Ramirez, 710 F.2d 535, 546 (9th Cir. 1983); US v.

Stephenson. 708 F.3d 580 (11th Cir. 1983); US v. Lee, 744 F.2d 1124 (5th Cir. 1984) [when co- defendant raises conflicting defenses, test for compelling severance is met and severance is required when defenses are antagonistic to point of being irreconcilable and mutually exclusive].

“This circuit recognizes that the assertion of antagonistic defenses may satisfy this test, but to do so the defenses must be irreconcilable and mutually exclusive. In other words, ‘the essence of one defendant’s defense [must be] contradicted by a co- defendant’s defense.’ US v. Berkowitz, 662 F.2d 1127, 1134 (5th Cir. Unit B, 1981).” US v. Magdaniel-Mora, 746 F.2d 715 (11th Cir. 1984).

The mere allegation that defenses are antagonistic defenses is not sufficient to require granting of a motion for severance. US v. Cauble, 706 F.2d 1322 (5th Cir. 1983), reh’g. denied, 714 F.2d 137;  US v. Mcpartlin, 595 F.2d 1321 (7th Cir. 1979); US v. Russell, 703 F.2d 1243

(11th Cir. 1983); US v. Mulherin, 710 F.2d 731, 736 (11th Cir. 1983) [fact that co-defendant’s defense was entrapment while defendant maintained he did not participate is insufficient].

One Court has even suggested that the conflict must be so irreconcilable that the jury would unjustifiably conclude both defendants are guilty. US v. Fush, 738 F.2d 497 (1st Cir. 1984).

Another has suggested that severance may be denied where codefendant’s conflicting defense is incredulous. US v. Shively, 715 F.2d 260, 268 (7th Cir. 1983), cert. denied, 104 S.Ct. 1001 (1984).

See also:   US v. Almeida-Biffi, 825 F.2d 830 (5th Cir. 1987) [no denial of fair trail where court refused to sever husband and wife codefendants since the jury’s acceptance of wife’s duress defense did not require the jury to disbelieve her husband’s defense that he did not participate in a cocaine transaction].



The theory for allowing such a severance is to avoid the danger that the defendant will be confronted by two prosecutors, the government and his co-defendant and prevent the situation where each defendant is the government’s best witness against the other. US v. Lee, 744 F.2d 1124 (5th Cir. 1984) [holding the test not met there]; US v. Romanello, 726 F.2d 173, 174 (5th Cir. 1984) [holding the trial court had abused its discretion in denying severance where one defendant claimed he had been robbed by the other two and they in turn claimed they were unaware those items had been stolen]. In Romanello, Judge Gee vividly described the specter of a joint trial in such circumstances and their accompanying danger of wrongful conviction.

“I saw a lizard coming darting forward on six great taloned feet and fasten itself to a [fellow soul]…. [T]hey fused like hot wax, and their colors ran together until neither wretch nor monster appeared what he had been when he began….’

The joint trial of conspiracy defendants was originally deemed useful to prove that the parties planned their crimes together. However, it has become a powerful tool for the government to prove substantive crimes and to cast guilt upon a host of co- defendants. In this case, we are concerned with the specific prejudice that results when defendants become weapons against each other, clawing into each other with antagonistic defenses. Like the wretches in Dante’s hell, they become entangled and ultimately fuse together in the eyes of the jury, so that neither defense is believed and all the defendants are convicted. Under such circumstances, the trial judge abuses its discretion in failing to sever the trials of the co-defendants. Today we hold that the defense of Gerald Vertucci was antagonistic to the defenses of Anthony Formanello and Victor Mendez and that Vertucci should have been severed from his Co-defendants.”





Where a co-defendant’s defense would introduce matter prejudicial to defendant, US v. Reed, 376 F.2d 226 (7th Cir. 1967); US v. Torres-Flores, 827 F.2d 1031, 1035 (5th Cir. 1987).



 Where a co-defendant has pled guilty to a similar offense alleged in a separate count on an indictment which did not charge conspiracy, US v. Wilcher, 332 F.2d 117 (7th Cir. 1964).



Where the same appointed counsel represents two defendants with antagonistic interests, US v. Gougis, 344 F.2d 758 (7th Cir. 1967); Case v. North Carolina, 315 F.2d 743 (4th Cir. 1963); Foxworth v. Wainwright, 516 F.2d 1072, 1077 (5th Cir. 1975).




Where the exculpatory evidence of each of two jointly indicted spouses incriminated the other and subverted the marital privilege, US v. Thoresen, 281 F.Supp 498 (D.C. Cal. 1967).



Where there is a lengthy indictment in a complicated case and it would be extremely difficult to distinguish the proof between the different counts and defendants, particularly where there is a likelihood that the jury may cumulate evidence of similar offenses or become confused, US v. Sanders, 266 F.Supp 615, 612-622 (D.C. La. 1967); Gregory v. US, 369 F.2d 185, 189

(D.C. Cir. 1966); US v. Quinn, 365 F.2d 256, 265-6 (7th Cir. 1966); US v. Lotsch, 102 F.2d 35

(2d Cir. 1939), cert. denied, 307 US 622 (1939); US v. Adams, 434 F.2d 756 (2d Cir. 1970); Hill

  1. US, 423 F.2d 1086 (5th Cir. 1970); US v. Gallo, 668 F.Supp 736 (E.D.N.Y. 1987).

But See:           US v. Gentry, F.2d (8th Cir. 1988) [no threat of “transfer of guilt” because the charged defendants clearly conspired to possess a 30-pount unit of marijuana, despite variance between scope of conspiracy and defendant’s participation].



The defendant is entitled to severance only where he can “…demonstrate ‘compelling prejudice’ caused by the alleged evidentiary spill-over, which effectively precluded the jury’s ability to make the necessary individualized determination.” US v. Phillips, 664 F.2d 971, 1016- 17 (5th Cir. 1981), cert. denied, 457 US 136 (1982); US v. Butera, 677 F.2d 1376, 1385 (11th Cir. 1982); US v. Johnson, 713 F.2d 633 (11th Cir. 1983); US v. Coppola, 788 F.2d 303, 307 (5th Cir. 1986); US v. Gutierrez-Chavez, 842 F.2d 77, 80 (5th Cir. 1988).


Merely “demonstrating that the evidence is stronger against a CO-defendant that oneself does not satisfy the burden of showing compelling prejudice,” US v. Marable, 544 F.2d 224, 231 (5th Cir. 1978); US v. Partin, 552 F.2d 621, 641 (5th Cir. 1977), cert. denied, 434 US 909 (1977);

US v. Berkowitz, 662 F.2d 1127, 1135, n.8 (5th Cir. 1981).



US v. Morrow, 537 F.2d 120, 137 (5th Cir. 1976), cert. denied, 430 US 956 (1977); US v.

Clark, 732 F.2d 1536, 1542, n. 18 (11th Cir. 1984); US v. Mitchell, 733 F.2d 327, 331 (4th Cir. 1984) [disparity of evidence will require severance only in extreme cases]; US v. Berkowitz, 662 F.2d 1127,1135 (5th Cir. 1981); US v. Harrelson, 754 F.2d 1153 (5th Cir. 1985);


“[I]n this Circuit “[severance under Fed. Crim. Pro. 14 is an appropriate remedy for disparity in the evidence only in the most extreme cases.” Morrow, 537 F.2d at 137 (footnote omitted). Accord, United States v. Clark, 732 F.2d 1536, 1542, n. 18 (11th Cir. 1984) [citing Morrow]; United States v. Mitchell, 733 F.2d 327, 331 (4th Cir. 1984) [citing Morrow]; United States v. Berkowitz, 662 F.2d 1127, 1135 (5th Cir. 1981). In quantitative terms, the amount of evidence offered against Mrs. Chagra was minimal compared to that offered against Harrelson. This is clearly insufficient in itself to justify severance, See Berkowitz, 662 F.2d at 1135, n. 8; a qualitative disparity must be shown as well.” US v. Harrelson, Supra.



US v. Walker, 720 F.2d 1527, 1533 (11th Cir. 1983);

US v. McCowan, 711 F.2d 1441, 1448-9 (9th Cir. 1983).


“Moreover, evidence of the reputation or past crimes of a codefendant does not ordinarily justify severance. See US v. Howell, 664 F.2d 101, 106 (5th Cir. 1981), cert. denied, 455 US 1005, 102 S.Ct. 1641, 71 L.Ed.2d 873 (1982); United States v. Perez, 489 F.2d 51, 67 (5th Cir. 1973), cert. denied, 417 US 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974), and cases cited therein.”


The mere fact that each defendant not present at each stage of the conspiracy has been generally held not to create sufficient confusion to a jury to warrant severance, US v. Morrow, 537 F.2d 120, 137 (5th Cir. 1976); US v. Berkowitz, 662 F.2d 1127, 1135, n.8 (5th Cir. 1981).



Where a co-defendant had received extremely adverse publicity and expressed an intent to lay blame on defendant, severance is available, US v. Valdes, 262 F.Supp. 474 ) D.C. Puerto Rico, 1967). See also US v. Nettles, 570 F.2d 547 (5th Cir. 1978), where the Court granted the defendant partial relief by severing a codefendant who was the subject of adverse pre-trial publicity. Cf. US v. Bibby, 752 F.2d 1116 (5th Cir. 1985).


“As to their claim about [co-defendant’s] inflammatory references to this prior appearances in court, these statements, while unfortunate, were not sufficiently prejudicial to require a severance. Accordingly we find that the trial judge did not abuse his discretion in refusing to order separate trials.” US v. Bibby, Supra, at p. 1123.




Where co-defendant’s witnesses or defenses, not adopted by defendant, are incredulous, US v. Gambrill, 449 F.2d 1148 (D.C. Cir. 1971), severance is proper.



US v. Gallo, 668 F. Supp 736 (E.D.N.Y. 1987), aff’d, 863 F.2d 185 (1988).



The Federal Bar Council Committee on Second Circuit Courts recently concluded that “mega-trials” should be severed into two ore more trials whenever it appears likely that a criminal trial will extend beyond 65 days and the prosecution cannot show that the interests of the justice require such lengthy trial.


“The length of these trails appears to have a detrimental impact on the judicial system in several respects, ranging from the impairment of the fact finding process to the disruption of judges’ calendars and the obvious strain on the resources of attorneys and litigants.” A Proposal Concerning Problems Created by Extremely Long Criminal Trials, Federal Bar Council Committee on Second Circuit Courts, at p. 1 (January 11, 1989).


Interesting problems arise where the Government introduces an oral or written statement of a co-defendant or that co-defendant testifies at a joint trial.



With regard to the former, it should be noted that an oral or written statement of a co- defendant, while admissible against him [see Rule 801(d)(2)(A), F.R.E.] would be inadmissible against the defendant. Accordingly, if at a joint trial the Government introduces the written or oral statement of a non-testifying co-defendant which incriminates the defendant, such denies that defendant his Constitutional right to confrontation and cross-examination guaranteed by the Sixth Amendment, and a severance should be granted. Bruton v. US, 391 US 123, 126 and 135- 136 (1968); Thompson v. State of SC, 672 F.Supp 896 (D.S.C. 1987). Where the defendant has made no incriminating statement of his own and does not take the stand it has been held no limiting instruction would safeguard the defendant’s right under the confrontation clause. Parker v. Randolph, 442 US 62, 73-5 (1979); Bruton v. US, Supra, at p. 135. The “practical and human limitations of the jury system” would override the theoretically sound premise that juries will follow the court’s instructions.


“[W]hen one person accuses another of a crime under circumstances in which the declarant stands to gain by inculpating another the accusation is presumptively suspect and must be subject to the scrutiny of cross examination… This is so because the “truth finding” function of the confrontation clause is uniquely related when an accomplice’s confusion is purported to be introduced against a criminal defendant without the benefit of cross examination.” Lilly v. Virginia, 527 US 116, 131, 119 S.Ct. 1887, 1897 (1999).


Exceptions to this general rule requiring severance occur where: (1) the co-defendant whole statement is introduced testifies at the joint trial affording the defendant an opportunity to cross-examine, Welson v. O’Neil, 402 US 622 (1971); US v. Sims, 430 F.2d 1089 (6th Cir. 1970);

Dugger v. US, 434 F.2d 345 (10th Cir. 1970); Roberts v. US, 416 F.2d 1216 (5th Cir. 1969); and this is true regardless of whether the codefendant acknowledges having made the statement, Nelson v. O’Neil, 402 US 622 (1971); US v. Hawk Wing, 459 F.2d 428 (8th Cir. 1972); (2) the statement does not incriminate the defendant, US v. Cassino, 467 F.2d 610 (2nd Cir. 1972), cert. denied, 410 US 913; Slowek v. US, 413 F.2d 957 (8th Cir. 1969), or, it is “redacted” or “sanitized” so as to no longer refer to nor indirectly inculpate the non-confessing defendant. US

  1. Weinrich, 586 F.2d 481 (5th Cir. 1978), cert. denied, 881 US 927 (1979); US v. Gonzalez, 749 F.2d 1329 (9th Cir. 1984) [holding that the defendant who made the admissible statement has no right to “redaction” on the theory that the same might make the exculpatory portions thereof less believable thereby], or (3) the Co-defendant is a co-conspirator and his statement was made during the course and in the furtherance of a conspiracy.


This last exception to both the hearsay rule and the Sixth Amendment right of confrontation and cross-examination (statements made by co-conspirators) has long been recognized by the federal judiciary, Clune v. US, 151 US 590, 593 (1895); Padgett v. US, 283 F.2d 244 (5th Cir. 1960) and is now codified in Rule 801 (d)(2)(E), F.R.E.

The Supreme Court had held, in a plurality opinion, that where the defendant has as well confessed, and his confession “interlocks” with the implicating co-defendant’s confession, Bruton does not preclude introduction of that co-defendant’s confession at a joint trial where appropriate limiting instructions are given. Parker v. Randolph, 442 US 62 (1979). The Supreme Court reconsidered this issue, and, overruled the Parker plurality option, negating the so-called interlocking confessions except to the Bruton Rule: Cruz v. New York, 481 US 186, 95 L.Ed.2d 162 (1987):

“We face again today the issue on which the Court was evenly divided in Parker.

“We adopt the approach espoused by Justice Blackmun. While ‘devastating’ practical effect was one of the factors that Bruton considered in assessing whether the Confrontation Clause might sometimes require departure from the general rule that jury instructions suffice to exclude improper testimony, 391 US at 136, 20 L.Ed.2d 476, 88 S Ct 1620, it did not suggest that the existence of such an effect should be assessed on a case-by-case basis. Rather, that factor was one of the justifications for excepting from the general rule the entire category of codefendant confessions that implicate the defendant in the crime. It is impossible to imagine why there should be excluded from that category, as generally not ‘devastating’, codefendant confessions that ‘interlock’ with the defendant’s own confession. ‘[T]he infinite variability of inculpatory statements (whether made by defendants or codefendants), and of their likely effect on juries, makes [the assumption that an interlocking confession will preclude devastation] untenable.’ Parker, 442 US at 84, 60 L.Ed.2d 713, 99 S.Ct 2132 (Stevens, J., dissenting).” Cruz v. New York, Supra, 95 L.Ed.2d at pp. 170-71.

But where a confession of a non-testifying codefendant is redacted to eliminate the defendant’s name and all reference to her existence, and is accomplished by a proper limiting instruction, same may not violate the confrontation clause. See Richardson v. Marsh, 481 US 200, 95 L.Ed.2d 176 (1987).



In light of the defendant’s right, under Bruton, to a severance where the Government intends to introduce a non-testifying co-defendant’s statement at such joint trial, Rule 14, F.R.CR.P., specifically provides that “[I]n ruling on a motion by a defendant for severance the court may order the attorney for the Government to deliver to the court for inspection in camera and any statements or confessions made by the defendant which the Government intends to introduce in evidence at the trial.”



In Richardson v. Marsh, 481 US 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), the Supreme Court addressed a type of Bruton problem; contextual inculpation. In that case, the codefendant Williams’ written confession had been redacted. Not only had the defendant Marsh’s name been deleted, but also throughout the confession, any reference to her existence had been expunged, Richardson v. Marsh, 481 US 200, 107 S.Ct. at 1705, 95 L.Ed.2d at 183. However, in the context of later testimony given by the defendant herself, and in the context of the prosecutor’s closing argument, the confession in fact became incriminating to Marsh. There were numerous instructions by the trial judge to the jury that the confession was not to be considered against defendant Marsh. Under these circumstances, the Supreme Court declined to extended the Bruton analysis to contextually inculpating statements.


“We hold that the Confrontation Clause is not violated by the admission of a non-testifying codefendant’s confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant’s name, but any reference to her existence.” Richardson v. Marsh, 481 US 200, 95 L.Ed.2d 176, 188, 109 S.Ct. 1702.


Significantly, the Court expresses “no opinion” on the admissibility of a confession in which the defendant’s name has been replaced with a symbol or neutral pronoun. Richardson v. Marsh, Supra, at 95 L.Ed.2d 188, n.5.


But See            Smith v. US, 561 A.2d 468 (D.C.App. 1989) [where some fourteen references to the accused were replaced with blank spaces in a non-testifying co-defendant’s redacted confession, same “virtually invited” jury to fill in defendant’s name].


It should be noted that footnote 10 in Bruton, to which the court refers in Richardson (concerning redaction as a method by which the prosecution can still have the benefit of the confession), clearly disfavors attempts at redaction in oral testimony. Bruton v. US, 391 US 123, 134, n. 10, 88 S.Ct. 1620, 1626, n. 10, 20 L.Ed.2d 476, 484, n.10 (1968).


In the similar case of Cruz v. New York, 481 US 186, 95 L.Ed.2d 162, 109 S.Ct. 1714, (1987), the Supreme Court reversed and remanded where a defendant, whose own incriminating statements had been admitted into evidence, objected to the introduction of his non-testifying codefendants pretrial confession which confession detailed the defendant’s alleged participating in the crime.


The lower court expressed the view that because the defendant’s statements not only interlocked with those of his codefendant, but also contained legally corroborated admissions of all the elements of the crime of which the defendant had been convicted, (1) the defendant had not been denied a fair trial, and (2) his motion for severance had properly been denied. People v. Cruz, 66 N.Y.2d 61, 485 N.E.2d 221 (1985) rev’d sub nom. Cruz v. New York, 481 U.S. 186, 107

  1. Ct. 1714, 95 L. Ed. 2d 162 (1987).


On certiorari, the United States Supreme Court reversed and remanded the case for further proceedings. In an option by Scalia, J., joined by Brennan, Marshall, Blackmun, and Stevens, J., the Court held that the Confrontation Clause of the Sixth Amendment bars the admission, at a joint criminal trial, of a non-testifying codefendant’s pretrial confession which incriminates the defendant and which is not directly admissible against the defendant, even though (1) the jury is instructed not to consider the confession against the defendant, and (2) the defendant’s own confession, corroborating that of the codefendant, is admitted against the defendant.


“This case is indistinguishable from Bruton with respect to those factors the Court has deemed relevant in this area: the likelihood that the instruction will be disregarded, Bruton, 391 US, at 135, 20 L.Ed.2d 476, 88 S.Ct 1620; the probability that such disregard will have a devastating effect, id at 136, 20 L.Ed.2d 476, 88 S.Ct 1620; and the determinability of these facts in advance of trial, Richardson v. Marsh, post, at   , 95 L.Ed.2d 176, 107 S.Ct. 1707.”

Cruz v. New York, 481 US 186, 95 L.Ed.2d 162, 172, 109 S.Ct (1987).


In the thoughtful opinion of People v. Cruz, 521 N.E.2d 321 (1988), the Court held that even a redacted confession denied the defendant a fair trial where it clearly referred to the defendant in light of the other evidence, including evidence of acquaintanceship, particularly where the prosecutor encourages jurors to consider each codefendant’s admissions against the others, and informed the jury the statement by the codefendant had been redacted.


“In Richardson, the Supreme Court rejected the theory of contextual inculpation because the confession by codefendant made no reference at all to the defendant and became incriminating only when coupled with the defendant’s own testimony. In the case before us, the physical setting of the trial as well as the prosecution’s introduction of acquaintanceship evidence formed an impermissibly incriminating context when they established the terms ‘friends’ and ‘two named individuals’ as thinly veiled references to Hernandez’ codefendants. No ‘substantial inference’ was required of the jury to identify defendant as one of the ‘friends’ mentioned by witnesses to Hernandez’ statements. (See United States ex rel. Velson v. Follette, 430 F.2d 1055, 1059 (2nd Cir. 1970). As a result, it would be unrealistic in the extreme to expect a jury to ignore the clear import of Hernandez’ statements, despite their redaction.


Furthermore, any possibility that the jury would be able to follow the court’s limiting instructions was removed when the prosecution encouraged the jurors to consider each codefendant’s admission against the other defendants, implying that the defendants’ friendship allowed them to do so. People v. Cruz, 521 N.E.2d 18 (1988).




Where some fourteen references to the accused were replaced with blank spaces in a non- testifying co-defendant’s redacted confession, same “virtually invited” the jury to fill in defendant’s name. Smith v. US, 561 A.2d 468, 1989 WL 71601 (D.C. App. 1989).


But See            US v. Gutierrez-Chavez, 842 F.2d 77 (5th Cir. 1988) [admission of co-defendant’s redacted confession although it implicated the defendant was harmless error in light of defendant’s own admissions to agents that established his participation in the charged conspiracy].




Another situation requiring severance arises where one of the jointly tried co-defendants takes the stand offering a conflicting defense or implicating the defendant. DeLuna v. US, 308 F.2d 140 (5th Cir. 1962), cert denied, (1963) 324 F.2d 375; Peel v. US, 316 F.2d 907, 912 (5th Cir. 1963). Some courts have based such severance on the ground that to require a defendant to go to trial jointly with a co-defendant who is going to lay the blame on him would require the defendant to defend against “two adversaries, the United States and [his] co-defendant,” US v. Valdez, 262 F.Supp 474 (D. Puerto Rico, 1967) [holding such to constitute a denial of the defendant’s due process right to a “fair and impartial trial”]. Contra: US v. Soto, 256 F.2d 729 (7th Cir. 1958); US v. Carter, 401 F.2d 748 (3rd Cir. 1968), cert. denied, 393 US 1103 (1969).


Other courts have based severance in such situations upon the testifying co-defendant’s right to comment upon the non-testifying defendant’s failure to take the stand, and the effect this has upon his Fifth Amendment privilege. The testifying codefendant’s “…attorneys should be free to draw all rationale inferences from the failure of a co-defendant to testify, just as an attorney is free to comment on the effect of any interested party’s failure to produce material evidence in his possession or to call witnesses who have knowledge of pertinent facts.” DeLuna

  1. US, 308 F.2d 140, 150-155 (5th Cir. 1962); Griffin v. California, 380 US 609 (1965). Severance is required, then, by the competing rights of the testifying co-defendant to comment upon the defendant’s failure to take the stand and the non-testifying defendant’s right to be free from such comment upon his exercise of a constitutional right. DeLuna v. US, Supra.


Some courts have required severance only where the testifying and non-testifying co- defendants are asserting conflicting or mutually exclusive defenses; US v. Kahn, 381 F.2d 824, 841 (7th Cir.), cert. denied, 389 US 1015 (1967); where under such circumstance the testifying co-defendant’s attorney was under a “duty” to comment upon the jointly tried defendant’s failure to take the stand. Gurleski v. US, 405 F.2d 253, 265 (5th Cir.), cert. denied, 395 US 977 (1968); US v. Badolato, 701 F.2d 915, 924 (11th Cir. 1983); US v. Johnson, 713 F.2d 633 (11th Cir.



“The DeLuna rule applies only when it is counsel’s duty to make a comment, and a mere desire to do so will not support an incursion on a defendant’s carefully protected right to silence. Clearly, a duty arises only when the arguments of the co-defendant’s are antagonistic.” Gurleski v. US, Supra, at p. 265.


In order to protect the non-testifying defendant’s Fifth Amendment privilege courts have limited the right of counsel for the testifying co-defendant to comment upon the jointly tried defendant’s failure to testify unless it can be demonstrated that this so-called “duty” to comment exists or “real prejudice” will result from his inability to make same. US v. Johnson, 713 F.2d 633 (11th Cir. 1983); US v. Kopituk, 690 F.2d 1289, 1319 (11th Cir. 1982); US v. DeLaCruz Bellinger, 422 F.2d 723 (9th Cir.), cert. denied, 389 US 942 (1970); US v. Kahn, 381 F.2d 824, 829-841 (7th Cir.), cert. denied, 389 US 1015 (1967); US v. Battaglia, 394 F.2d 304 (7th Cir. 1968) ; US v. McKinney, 379 F.2d 259, 265 (6th Cir. 1967); US v. Hyde, 448 F.2d 815, 832 (5th Cir. 1971); Kolod v. US, 371 F.2d 983, 991 (10th Cir. 1967). However, keep in mind that Judge Wisdom’s well-reasoned opinion in DeLuna did not speak of the testifying co-defendant’s “duty” to comment but upon his attorney’s right to “…be free to draw all rational inferences from the failure of a co-defendant to testify, just as an attorney is free to comment on the effect of any interested party’s failure to produce material evidence.” DeLuna v. US, 308 F.2d 140, 143 (5th Cir. 1962). See also US v. Crawford, 581 F.2d 489 (5th Cir. 1978); Byrd v. Wainwright, 428 F.2d 1017 (5th Cir. 1970).


At least one Court has held that “under no circumstances” does a co-defendant’s counsel have a right or duty to comment on a jointly tried defendant’s silence. US v. McClure, 734 F.2d 484, 491 (10th Cir. 1984).


“We reject the dictum of the DeLuna majority and today hold that under no circumstances can it be said that a defendant’s attorney is obligated to comment upon a codefendant’s failure to testify.”


The better course of action is to sever such defendants for separate trial any time a co- defendant desires to testify and comment upon the non-testifying defendant’s failure to take the stand, since, with respect to a choice between the competing rights of two criminal defendants and the inconvenience to the Government and the judiciary from separate trials, the latter should give way.




Still another situation calling for a severance may arise when a defendant seeks to call a jointly charged defendant as a witness on his behalf; US v. Echeles, 342 F.2d 892 (7th Cir. 1965); US v. Martinez, 486 F.2d 15 (5th Cir. 1973); Byrd v. Wainwright, 428 F.2d 1017 (5th Cir. 1970) [holding denial of same may constitute denial of “due process”]; US v. Shuford, 343 F.2d 772 (4th Cir. 1971); US v. Gleason, 259 F.Supp 282 (S.D.N.Y. 1966); since it would violate one defendant’s Fifth Amendment right to allow another defendant to require his testimony at a joint trial. US v. Echeles, 352 F.2d 892, 897-98 (7th Cir. 1965).



However, to require a severance in order to obtain the testimony of a co-defendant the defendant must demonstrate:

  • a bona fide need for the testimony,
  • the substance of the expected testimony,
  • its exculpatory nature and effect, and
  • that the designated co-defendant will in fact


US v. Grapp, 653 F.2d 189 (5th Cir. 1981); US v. Butler, 611 F.2d 1066, 1071 (5th Cir.), cert. denied, 449 US 830 (1980); Tifford v. Wainwright, 588 F.2d 954 (5th Cir. 1979); Byrd v. Wainwright, 482 F.2d 1017 (5th Cir. 1970); US v. Sica, 560 F.2d 149 (3rd Cir. 1976); US v.

Johnson, 713 F.2d 633 (11th Cir. 1983); US v. Williams, 809 F.2d 1072, 1084 (5th Cir. 1987); US Ascarrunz, 838 F.2d 759 (5th Cir. 1988); US v. Hernandez, 841 F.2d 82 (5th Cir. 1988).


A “bare conclusory assertion” merely tracking and negating the language of the indictment has been held insufficient. US v. DeSimone, 660 F.2d 532, 539-40 (5th Cir. 1981), cert. denied, 455 US 1028; US v. Johnson, 713 F.2d 633 (11th Cir. 1983).


Likewise, courts have refused severance where the proffered testimony does not controvert a defendant’s involvement in its entirety, arguing that it must be sufficiently exculpatory to outweigh the concerns for judicial economy favoring joint trial; US v. Butler, 611 F.2d 1066, 1077 (5th Cir. 1980); US v. Edwards, 549 F.2d 362, 366 (5th Cir. 1977); US v. Johnson, 713 F.2d 633 (11th Cir. 1983).


Some courts have even held that the co-defendant’s proffered testimony “lack[s] a certain amount of credibility” unless it inculpates the co-defendant whose testimony is sought; US v. DeSimone, 660 F.2d 532, 540 (5th Cir. 1981); US v. Metz, 608 F.2d 147, 156 (5th Cir. 1979); US

  1. Alejandro, 527 F.2d 423, 428 (5th 1976); US v. Johnson, 713 F.2d 633 (11th Cir. 1983); US v. Pepe, 747 F.2d 632 (11th Cir. 1984). The co-defendant’s statements against penal interest [See Rule 804 (b)(3), F.R.E.] certainly satisfy this argument and may be sufficient in themselves. At the very least, refusal to sever should render their hearsay admissions admissible, despite the rule’s requirement of additional indicia of reliability.


Most courts require a particularly strong affirmative showing that the co-defendant would in fact testify if the trials were severed, US v. Nakaladski, 481 F.2d 289 (5th Cir.), cert. denied, 414 US 1064 (1973); US v. Iacoveti, 466 F.2d 1147 (5th Cir.), cert. denied, 410 US 908 (1973);

US v. Noah, 475 F.2d 688 (9th Cir.) cert. denied, 414 US 821; US v. Bethea, 446 F.2d 30 (3rd Cir.), cert. denied, 404 US 1003 (1971); expressing some skepticism as to whether the co- defendant would not claim his constitutional privilege even if a separate trial were granted. Wright, Federal Practice and Procedure: Criminal, §225; US v. Oxford, 735 F.2d 276 (7th Cir. 1984) [mere possibility co-defendant would testify insufficient]; US v. Caspers, 736 F.2d 1246 (8th Cir. 1984).


This skepticism may be justified, but it does not warrant unequal treatment of the parties in a criminal prosecution. For example, courts often engage in practices designed to assist the Government in obtaining testimony of an individual desired by the Government to prosecute another. One co-defendant is often given immunity or tried first by the Government in order that his Fifth Amendment privilege will no longer be available when he is called as a witness for the Government at he subsequent trial of his Co-defendant, and defendants have no right to require that all individuals alleged to have participated in the same offense be tried together, US v. Bronson, 145 F.2d 939, 943 (2nd Cir. 1944). These same practices should be available to assist a defendant in order that he might be afforded the same opportunity to defend against criminal charges that the Government has to prosecute them. See US v. Gleason, 259 F.Supp 282 (S.D.N.Y. 1966).

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